CO/5784/05 
Neutral Citation Number: [2005] EWHC 3122 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Thursday 15 December 2005
 
B E F O R E:
 
MR JUSTICE BEAN 

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The Queen, on the application of 

NEW FOREST DISTRICT COUNCIL 
(CLAIMANT)

-v- 

SHUTLER & OTHERS
(DEFENDANT) 
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MR MARTIN EDWARDS (instructed by Legal Services of New Forest District Council) appeared on behalf of the CLAIMANT 
MR GAVIN COLLETT (instructed by Stephens & Scown, Exeter) appeared on behalf of the DEFENDANT
 
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JUDGMENT
1.	MR JUSTICE BEAN:  This is an application by New Forest District Council for an injunction under section 187B of the Town and Country Planning Act 1990 restraining breaches of planning control.  The defendants are Colin and Linda Shutler.  Colin Shutler's parents, Percival and Evelyn Shutler, live in a two bedroom farmhouse at Avonside Farm.  The defendants themselves (that is the younger couple) have been living on site at Avonside Farm in what was formerly described as a mobile home, but is now (by reason of recent altercations) said to be a building.  Mr Shutler senior is 84 and, sadly, has for some time suffered from Alzheimer's disease.  Mrs Shutler senior is 78 and cannot cope with caring for her husband on her own.
2.	On 10th June 2002 the council issued an enforcement notice requiring, among other things, that the defendants cease the use of the land at Avonside Farm to station a mobile home there and that they remove the mobile home from the land.  The defendants appealed.
3.	Following a three-day hearing, the planning inspector appointed by the Secretary of State to determine the appeal dismissed the appeal on 13th March 2003 but extended the period of compliance from three months to eighteen months.  That period therefore expired on 13th September 2004.  The defendants failed to comply with the enforcement notice.  
4.	On 9th March 2005 the relevant committee of the claimant, after hearing representations from Mr Colin Shutler, resolved to exercise the council's powers pursuant to section 178 of the 1990 Act to enter on to the land and remove the mobile home.
5.	On 7th April the defendants' solicitors wrote to the claimant challenging the decision to use section 178 powers and enclosing the proposed claim for judicial review, which in the event was not pursued.
6.	At some time during April the defendants removed the mobile home from the land, but about a month later they brought it back and added to it a brick skirt and conservatory.  The altered structure remains on the land to this day.
7.	On 10th June the council issued a temporary stop notice preventing further works on the conservatory.  
8.	On 24th June the council wrote to the defendants to say that direct action would be taken pursuant to section 178 if the mobile home was not removed within one month.  
9.	The defendants' solicitors replied arguing that the enforcement notice had been complied with and that what was now on the land was a building.  
10.	On 19th July the defendants applied to the Swindon County Court for an interim injunction against the council to prevent it from exercising its section 178 powers.  
11.	The matter was heard on 22nd July before His Honour Judge McNaught.  The application for an interim injunction was dismissed with costs.  The learned judge described the argument that the structure was now a building and not a mobile home and the default powers were thus not available as one which offended common sense and was simply a "crude wheeze".  He said that the Shutlers were looking to get around their lack of success in the planning appeal.
12.	There was no appeal or application for permission to appeal against that decision.  Nevertheless, no sooner had the learned judge given judgment than the Shutlers' solicitors wrote to the council, continuing to maintain that the structure on the land was a building and threatening a substantial damages claim against the council if the council entered on to the land to remove the structure.
13.	On 4th August an application was lodged with the council for retrospective planning permission for the building, and, although that was incomplete because of the lack of plan drawings, those drawings were submitted on 26th August.  
14.	In the meantime, on 10th August, these proceedings were issued by the council.  Unfortunately, owing to delays in this court's list, the proceedings have taken a considerable time to come on.
15.	On 13th September the new planning application was amended to describe the purpose of the proposal as the provision of a dwelling for an agricultural worker.  The application urges that livestock are being kept on the land and it is necessary for Mr Colin Shutler to be on site to look after the livestock.  
16.	The council have rejected that planning application for two reasons: 
"1.  The applicants have failed to demonstrate a proven agricultural need to reside on the site having regard to the tests set out in PPS7, Policy NF-H6 of the adopted New Forest District Local Plan First Alteration.  The applicants' personal circumstances are noted but these are not considered to be so exceptional as to justify departure from policy.  In the absence of a proven agricultural need, the proposal represents an undesirable and non essential form of housing in the National Park contrary to policy NF-H1 and NF-H6 of [that Plan].  
2. The application site occupies a prominent location within the New Forest National Park.  The proposed dwelling, by reason of its prominence, degree of permanence, inappropriate design and non conforming appearance (which does not reflect any local building traditions or styles) is both intrusive and visually incongruous within the National Park, contrary to policy DW-E1 and FF-E5 of [the same Plan]."
17.	A planning appeal has been lodged against that decision.  The appellants are content for the written procedure to be used, which counsel tell me may be expected to take about 20 weeks.  The council, in their evidence, stated that they would not be content with the written procedure.  If there is to be an oral hearing, there will be a waiting time of at least six months.  Mention is made in the evidence of hearing dates being offered at present for August 2006.
18.	It is common ground that the defendants do not have, as  plainly they do not, planning permission for this structure.  However it is described, whether as a mobile home or as a building, it is in breach of planning controls. 
19.	I turn to the medical position regarding Mr Percival Shutler.  The inspector's report records that Mr Shutler suffered a disabling stroke as long ago as 1994 and by the time of the 2003 planning inquiry was already suffering from dementia.  A letter handed in at yesterday's hearing and dated yesterday from Jan Trinick, a community psychiatric nurse employed by the Hampshire Partnership NHS Trust Mental Health Team, states as follows:
"... I spoke yesterday with Evelyn Shutler.  She had had a particular bad weekend with Percival.  Unfortunately Lloyds Chemist was unable to supply his normal medication.  It was necessary therefore for Percival to be put onto different tablets and those tablets had the effect of making him more confused than normal.  
Although a problem such as the one that occurred this weekend is not a regular event, it does emphasise why it is so important for Evelyn to be able to call upon Colin and Linda.  Incidents can arise at short notice.  Percival can have a fall or become particularly disturbed.  At those times it is essential that Evelyn can make immediate contact with either Colin or Linda.  They are her lifeline.  
It is impracticable and impossible for Colin and Linda to live at Avonside Farm.  Any comings and goings have an adverse effect on Percival and he will become more confused than ever.  The presence of Colin and Linda next door is the ideal solution.  It means they are on hand and that home can provide a refuge for Evelyn.  I cannot think of a better solution for all concerned.  I am aware that Percival and Evelyn's doctor supports my view that the best way to provide care for Percival and Evelyn is at Avonside Farm with the support of Colin and Linda.  Without that support Evelyn is likely to become more isolated.  In that situation I would question whether she would be able to cope and generally believe both Evelyn and Percival's health would seriously and unnecessarily decline."
20.	The leading case on a section 187B injunction is South Buckinghamshire District Council v Porter [2003] 2 AC 558, in which the House of Lords approved observations of Simon Brown LJ (as he then was) in the Court of Appeal:  
"The approach to s.187B 
38. I would unhesitatingly reject the more extreme submissions made on either side. It seems to me perfectly clear that the judge on a s.187B application is not required, nor even entitled, to reach his own independent view of the planning merits of the case. These he is required to take as decided within the planning process, the actual or anticipated breach of planning control being a given when he comes to exercise his discretion. But it seems to me no less plain that the judge should not grant injunctive relief unless he would be prepared if necessary to contemplate committing the defendant to prison for breach of the order, and that he would not be of this mind unless he had considered for himself all questions of hardship for the defendant and his family if required to move, necessarily including, therefore, the availability of suitable alternative sites. I cannot accept that the consideration of those matters is, as Burton J suggested was the case in the pre-1998 Act era, "entirely foreclosed" at the injunction stage. Questions of the family's health and education will inevitably be of relevance. But so too, of course, will countervailing considerations such as the need to enforce planning control in the general interest and, importantly therefore, the planning history of the site. The degree and flagrancy of the postulated breach of planning control may well prove critical. If conventional enforcement measures have failed over a prolonged period of time to remedy the breach, then the court would obviously be the readier to use its own, more coercive powers. Conversely, however, the court might well be reluctant to use its powers in a case where enforcement action had never been taken. On the other hand, there might be some urgency in the situation sufficient to justify the pre-emptive avoidance of an anticipated breach of planning control. Considerations of health and safety might arise. Preventing a gipsy moving onto the site might, indeed, involve him in less hardship than moving him out after a long period of occupation. Previous planning decisions will always be relevant; how relevant, however, will inevitably depend on a variety of matters, including not least how recent they are, the extent to which considerations of hardship and availability of alternative sites were taken into account, the strength of the conclusions reached on land use and environmental issues, and whether the defendant had and properly took the opportunity to make his case for at least a temporary personal planning permission.
39. Relevant too will be the local authority's decision under s.187B(1) to seek injunctive relief. They, after all, are the democratically elected and accountable body principally responsible for planning control in their area. Again, however, the relevance and weight of their decision will depend above all on the extent to which they can be shown to have had regard to all the material considerations and to have properly posed and approached the article 8(2) questions as to necessity and proportionality.
40. Whilst it is not for the court to question the correctness of the existing planning status of the land, the court in deciding whether or not to grant an injunction (and, if so, whether and for how long to suspend it) is bound to come to some broad view as to the degree of environmental damage resulting from the breach and the urgency or otherwise of bringing it to an end. In this regard the court need not shut its mind to the possibility of the planning authority itself coming to reach a different planning judgment in the case.
41. True it is, as Mr McCracken points out, that, once the planning decision is taken as final, the legitimate aim of preserving the environment is only achievable by removing the gipsies from site. That is not to say, however, that the achievement of that aim must always be accepted by the court to outweigh whatever countervailing rights the gipsies may have, still less that the court is bound to grant injunctive (least of all immediate injunctive) relief. Rather I prefer the approach suggested by the 1991 Circular: the court's discretion is absolute and injunctive relief is unlikely unless properly thought to be "commensurate" – in today's language, proportionate. The Hambleton approach seems to me difficult to reconcile with that Circular. However, whatever view one takes of the correctness of the Hambleton approach in the period prior to the coming into force of the Human Rights Act 1998, to my mind it cannot be thought consistent with the court's duty under s.6(1) to act compatibly with convention rights. Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the public interest objective sought – here the safeguarding of the environment – but also that it does not impose an excessive burden on the individual whose private interests – here the gipsy's private life and home and the retention of his ethnic identity – are at stake.
42. I do not pretend that it will always be easy in any particular case to strike the necessary balance between these competing interests, interests of so different a character that weighing one against the other must inevitably be problematic. This, however, is the task to be undertaken by the court and, provided it is undertaken in a structured and articulated way, the appropriate conclusion should emerge."
21.	An illustration of the practical effect of these dicta of Simon Brown LJ, and the refusal of an injunction in one case at least, is provided by the case of Mrs Porter herself, which reached the House of Lords a second time when Lord Brown of Eaton-under-Heywood (as he had by then become) applied the guidelines he had set out in the first case and held that an injunction should not have been granted against Mrs Porter.
22.	In Davis v Tonbridge & Malling Borough Council [2004] EWCA 194 the Court of Appeal summarised the effect of the speeches in the House of Lords in the Porter case as follows:
"1) Section 187B confers on the courts an original and discretionary, not a supervisory, jurisdiction, so that a defendant seeking to resist injunctive relief is not restricted to judicial review grounds; 2) it is questionable whether Article 8 adds anything to the existing equitable duty of a court in the exercise of its discretion under section 187B; 3) the jurisdiction is to be exercised with due regard to the purpose for which was conferred, namely to restrain breaches of planning control, and flagrant and prolonged defiance by a defendant of the relevant planning controls and procedures may weigh heavily in favour of injunctive  relief; 4) however, it is inherent in the injunctive remedy that its grant depends on a court's judgment of all the circumstances of the case; 5) although a court would not examine matters of planning policy and judgment, since those lay within the exclusive purview of the responsible local planning authority, it will consider whether, and the extent to which, the local planning authority has taken account of the personal circumstances of the defendant and any hardship that injunctive relief might cause, and it is not obliged to grant relief simply because a planning authority considered it necessary or expedient to restrain a planning breach; 6) having had regard to all the circumstances of the case, the court will only grant an injunction where it is just and proportionate to do so, taking account, inter alia, of the rights of the person or persons against whom injunctive relief is sought, and of whether it is relief with which that person or persons can and reasonably ought to comply."
23.	The submissions of Mr Edward for the claimant were very simple.  They were that there has been a prolonged and flagrant breach of planning controls; that the defendants will not comply with the enforcement notice without a court granting an injunction; and that it is appropriate, just and proportionate that the law should be enforced, in this case by grant of an injunction.  Mr Edwards accepted that it would be wrong for such an injunction to be granted with immediate effect and said that his instructions were that the council were prepared to agree to suspension until the end of February 2006.
24.	Mr Collett for the defendants resisted the grant of an injunction on a number of grounds.  The first is that the enforcement notice only applied to the structure when it was a mobile home and now that it is a building the council must, in effect, start again.  
25.	Mr Collett's skeleton argument referred to an unreported decision in 1995 by the name of Carter v Secretary of State for Environment in support of his submission that a structure of the kind in which Mr and Mrs Shutler junior are now living is not a mobile home because it would need dismantling before it could be removed.  He did not show me the decision itself, but in any event this proposition seems to me besides the point.  Mr Collett accepted that, whatever this structure is, it does not fall within the permitted development rights of the existing farmhouse.  The enforcement notice was issued in 2002 against the stationing of a mobile home on the land.  The planning inspector, after a substantial inquiry, rejected an appeal against that notice.  The defendants were given eighteen months to comply but did not do so.  The alteration of the structure by the addition of a brick skirt and a conservatory came after that process had run its course and after the eighteen months for compliance had expired.  An application for an injunction to prevent the council from exercising default powers was dismissed and there was no appeal from that decision.  I agree with Judge McNaught's description of the argument based on the alteration of the structure as a "crude wheeze".  It does not, in my judgment, form a ground for refusing an injunction.
26.	Mr Collett's next point was that resort to injunction proceedings should be a last resort, or, as he described it, a 'nuclear option', and the council should have prosecuted the Shutlers (if they were relying on the original enforcement notice) before coming to the High Court to seek an injunction.  
27.	He did not cite authority to support the proposition that a prosecution must or should be tried first, and I am not aware of any myself.  In the judgment of Simon Brown LJ, approved by the House in the first Porter case, he stated:
"If conventional enforcement measures have failed over a prolonged period of time to remedy the breach, then the court would obviously be the readier to use its own, more coercive powers."
I do not understand Simon Brown LJ by those remarks to have been stating that prosecution must be tried first.  If an enforcement notice has been issued and the planning appeal procedure has been exhausted, that may itself be good reason to return to the High Court.  Moreover, there is, as the inspector's report makes clear, a prolonged history of use of this site in various respects, including the running of a nature affair business in breach of planning controls.  
28.	Where the Porter test (the failure of conventional enforcement measures over a prolonged period of time) is satisfied, as in this case it is, there is no further requirement of resort to the criminal courts first.  It is in any event a singularly unattractive argument for a defendant to a civil case to say that he ought to have been prosecuted for a crime before resort is had to the civil courts for an injunction.  This type of case is not one where a defendant is able to assert a right to a jury trial on constitutional grounds.  I accordingly reject that argument of Mr Collett.
29.	The next argument was based on the fact that the new planning appeal is pending.  Mr Collett, however, accepted the principle that, as Beatson J put it in Oxfordshire County Council and Wyatt Brothers (Oxford) Ltd [2005] EWHC 2482, in general (though not invariably), while a short period of suspension may be appropriate, injunctions which should otherwise be granted under section 187B should not be suspended by reference to the expected result or duration of the planning process.  I bear in mind the previous planning decision adverse to the Shutlers.  
30.	Mr Collett has drawn to my attention that the consultants appointed by the council, ROC, consider that:
"Particularly close attention to the welfare of the stock is required and this can only properly be afforded from a dwelling on site."
On the other hand, Mr Avery, giving written evidence on behalf of the council, states his view that the appeal is "highly unlikely to succeed, in that the proposed development is clearly contrary to the policies set out in the council's development plan".  
31.	It may be found that the agricultural need argument is itself a "wheeze" or one which carries little weight, especially given that, according to the inspector's report, agricultural activity began to wind down rapidly after Mr Shutler senior's stroke in 1994 and had almost ceased by 1997.  It appears it was only restarted after the failure of the planning appeal.  In his appeal decision the inspector, who had heard oral evidence (which I have not) said this of Mr Colin Shutler (paragraph 47):
"Whilst much of what Mr C. Shutler told me was probably correct I was unable to regard him as a reliable witness on planning matters.  He admitted that he was routinely evasive in dealing with questions from local planning officers, and would give only such information as he regarded as relevant.  More than this, however, there is evidence to indicate that he is prepared to knowingly misinform.  In a 1998 answer to a written request from the Council for information about Avonside he listed the 'purposes for which the land was used'.  These were all agricultural in nature and no reference was made to vehicle repairs or maintenance.  In his evidence at this inquiry he stated that by 1998 the site was mainly in use for his maintenance and repair business and had been continuously used for such a purpose since before 1992.  Both cannot be correct and I find it highly implausible that he either misunderstood the question in 1998 or that he suffered from faulty memory, either then or at the inquiry." 
32.	Mr Collett's next and most substantial argument was based on Mr Shutler senior's illness.  It falls into two parts.  Firstly, he submitted, the council failed to make proper enquiries into Mr Shutler senior's state of health before resorting to court proceedings, a failure which Mr Collett described as appalling.  Secondly, Mr Shutler senior's illness and the consequences for Mrs Shutler senior are described in the psychiatric nurse's report and are in any event a reason to refuse an injunction.  
33.	As to the enquiries point, in my view it is without any merit at all.  Mr Colin Shutler was given, and took, the opportunity to address the relevant committee of the council before its decision of 5th March 2005 to use its full powers.  In those circumstances, I do not consider it even arguable that there was a further obligation on the claimants to obtain medical reports or make similar enquiries to ascertain Mr Percival Shutler's state of health before issuing proceedings.  I wholly reject the criticism of the claimant's behaviour as "appalling".  On the contrary, I have to say that while I appreciate and respect Mr Colin Shutler's wish to look after his elderly parents, his behaviour in evading planning controls over a prolonged period would have tried the patience of a saint.  I find the claimants did take account of the personal circumstances of the defendant and his family before invoking the assistance of the court, when they were contemplating default proceedings and in the issue of the present claim not long afterwards.
34.	The substantive point about Mr Percival Shutler's illness encapsulated in the latest report from Jan Trinick is a more serious one.  I accept what that report says, that the ideal solution to the problems caused by Mr Percival Shutler's illness is for the younger couple to live in the mobile home or former mobile home in order to be on the site when help was needed and also to provide a bolt hole for Evelyn Shutler when her husband's behaviour caused by his Alzheimer's disease is particularly troubling for her.  But that is an argument which could apply to almost any elderly individual in poor health.  Nothing could be better to have one's children or children-in-law in a mobile home in the garden or on farmland.  But against that must be balanced planning considerations.  If that argument were to prevail in the present case, I could see no reason why it could not prevail in hundreds of thousands, if not millions, of cases up and down the land, depending simply on whether there was physical space on the land owned by the family concerned to fit an additional dwelling-house.  
35.	Furthermore, this is not a short-term problem.  Mr Percival Shutler is not terminally ill with a very short time to live.  If he were, different considerations might well apply.  He suffered his disabling stroke over ten years ago and, as I have already noted, was recorded as suffering from dementia at the time of the planning appeal.  There is no way of knowing whether he will survive for months or for years, nor what course his needs will take.  The solution proposed by the defendants and by the community psychiatric nurse is the ideal one, but it is not the only one.  Other possibilities may include that the family sell up and obtain a different home; or that the junior Shutlers obtain accommodation within a short drive away; or that they occupy the second bedroom in the farmhouse, despite the difficulties which the nurse notes; or that Mr Percival Shutler has to be cared for in a nursing home.  There will undoubtedly be hardship to the defendant's parents if an injunction is granted, but that cannot be conclusive against the grant of relief of this kind.
36.	Finally, Mr Collett drew my attention to the observations of Simon Brown LJ in the Court of Appeal in the first Porter case, that a judge should not grant an injunction unless he would contemplate committing the defendant to prison for breach of it.
37.	As for that, Lord Bingham of Cornhill, giving the leading speech in the House of Lords in the first Porter case, [2003] 2 AC 558, said: 
"32.  When granting an injunction the court does not contemplate that it will be disobeyed.  Apprehension that a party may disobey an order should not deter the court from making an order otherwise appropriate: there is not one law for the law-abiding and another for the lawless and truculent.  When making an order, the court should ordinarily be willing to enforce it if necessary.  The rule of law is not well served if orders are made and disobeyed with impunity.  These propositions however rest on the assumption that the order made by the court is just in all the circumstances and one with which the defendant can and reasonably ought to comply, an assumption which ordinarily applies both when the order is made and when the time for enforcement arises.  Since a severe financial penalty may be imposed for failure to comply with an enforcement notice, the main additional sanction provided by the grant of an injunction is that of imprisonment.  The court should ordinarily be slow to make an order which it would not at that time be willing, if need be, to enforce by imprisonment.  But imprisonment in this context is intended not to punish but to induce compliance, reinforcing the requirement that the order be one with which the defendant can and reasonably ought to comply."
38.	An injunction in this case is one with which Mr Colin Shutler and his wife can and reasonably ought to comply.  I see no reason why this is a case where the sanction of imprisonment for non-compliance would not be appropriate.
39.	I therefore conclude that the breach of the planning controls in this case have been flagrant and prolonged; that there is no reason why I should take a different view of the environmental issues from that taken by the planning inspector after a three-day inquiry; that the grant of an injunction would compel the defendants to seek alternatives which would involve hardship to Mr Colin Shutler's parents but which would not be wholly impracticable; and that it is just and proportionate to grant an injunction.
40.	The final issue is time for compliance.  I bear in mind that the planning inspector gave eighteen months for compliance because of the difficulties which the Shutlers faced in making alternative arrangements, but the family did not take advantage of that eighteen-month period.  On the other hand, the concession which the claimants were prepared to make of suspension until the end of February does not seem to me an adequate time.  I shall suspend the injunction for six months, that is until June 15th, to allow the Shutlers time to make alternative arrangements.  After that, it will come into force.
41.	I heard argument on costs yesterday.  Is there anything you would like to add?
42.	MR COLLETT:  I do not think I can assist.  I have not seen a figure yet, perhaps because I am not assisted today.
43.	MR JUSTICE BEAN:  Defendants to pay the claimant's costs, to be assessed in detail if not agreed.
44.	MR COLLETT:  My Lord, there is only one final point; and whenever one has to rise at this stage and make that application it always seems, in my view, an onerous and odious thing to do.  I think I must apply for leave.  It may be there will be no application when I speak to those instructing me, but I still want to make the application nevertheless, my Lord, for leave to appeal.
45.	MR JUSTICE BEAN:  This is a discretionary decision and I am not prepared to grant leave to appeal.  If your clients, after considering the judgment, see fit to do so, they can of course make an application to the Court of Appeal themselves to grant leave.