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Havering Injunctions
Roderick Morton • 19 October 2021
LB Havering and others v Persons Unknown and others [2021] EWHC 2648 (QB)
Another month, another injunction decision! Following our article last month regarding the recent dismissal of Hackney’s claim for a borough-wide injunction against Covid protestors, we report on a further planning injunction case, this time involving Havering, Nuneaton and Bedworth, Warwickshire CC, Rochdale MBC, Test Valley BC and Thurrock councils, heard at the start of October. The case is notable for two reasons. First, the need to progress injunctions to final claim stage and second the judge’s comments on evidence.
The councils had previously obtained interim injunctions in 2018 and 2019 on a borough-wide basis against various named defendants and “persons unknown”. No council had yet progressed its main injunction claim to a hearing. There were various reasons for this, not least Covid, a desire to wait for the decision in LB Bromley (EWHC [2019] 1675) and further cases this year, and the failure of the court to make case management directions to hurry the proceedings along. Various campaign group interveners sought to have the interim injunctions set aside for failure to progress the main injunction claims.
The claim for an injunction under s187B TCPA is made under Part 8 of the Civil Procedure Rules. It requires a claim, service, a defence, evidence, skeleton arguments and a full, often contested, hearing. This can take some time. There is provision in the rules for councils to seek an interim injunction, protecting the status quo until the main claim can be heard in court. As we discussed last month, at interim stage the council need only demonstrate the need to protect the status quo, the merits of the claim are not rehearsed. A practice had grown up (and had been tacitly accepted by the court) of councils stopping at the interim stage because the interim injunction often gives them most of what they need. The merits of the main claim are therefore never considered fully.
When councils started asking for borough-wide injunctions against “persons unknown” (ie all members of the public) on this basis, the courts called a halt. Hackney (see last month), while not a planning case, is an example of the practical difficulties of evidencing and winning the main injunction claim. In these circumstances, to allow the merits of claims to remain untested is contrary to justice.
In this Havering case, Mr Justice Nicklin considered the councils’ various excuses for not progressing the cases to final injunction. For the most part, he rejected them as inadequate. Internal emails which should never have seen the light of day were examined in detail. The councils’ unilateral decision to await the Bromley decision was particularly criticised. That, in the end, the judge stopped short of discharging the interim injunctions was for two main reasons. First, that the court itself was complicit in the failures because it had granted such open ended interim orders and had not made case management directions requiring the main claims to be brought to court quickly. And second, that the situation should not arise in future as Bromley has now made councils fully aware of the court’s position on these injunctions. In the circumstances, the judge felt that the best approach for this case would be continue the order and require the councils to bring the main injunction claims to court expeditiously.
This is an exception. Councils should now be aware that
• any interim injunction will require notice and a hearing;
• that it will be time limited, defendant limited (unlikely to cover “persons unknown”) and area limited;
• that the evidence will need to be good enough to give the main injunction claim a chance of success;
• that the main injunction claim will need be progressed quickly; and
• that any delay or extension of time (even if sensible and/or agreed by the defendants) needs the court’s blessing.
There are consequences to this. Last week, we sought extension of a time limited interim injunction to allow a planning decision to be made, appealed and s289’d. The G&T families on the site had asked for it, since the alternative would have been to progress the main injunction which would have cost them money. The council consented. The extension was granted.
On the face of it, this request is difficult to reconcile with the need to progress the main injunction claim. It will probably not now be heard for 2 years or more.
It was also clear that the judge did not want to have to determine planning merits where there was an inspector to do it. But that is going to be the result of the court’s current push to see the merits of injunction claims heard quickly. One of the matters to be considered in an injunction hearing is the likelihood of planning permission being granted. Almost all G&T injunction cases have underlying planning applications which are under appeal or simply lying undetermined. Again, it is difficult to reconcile the court’s need for expeditious progress of injunctions with its unwillingness to reach a view on such a fundamental part of those injunctions.
A final point to mention in the Havering case is the judge’s comments on evidence. He commented that Havering’s claim and evidence amounted to some 3728 pages including 48 witness statements. While not stated, these were presumably from police officers, planning enforcement officers, housing and environment teams as well as witnesses dealing with site provision, GT needs assessments, welfare etc. The other councils had documentation of a similar magnitude. It is easy to see how this occurs. Each time there is an unauthorised encampment, officers attend and witness statements are generated. When it comes time to apply for the injunction, the witness statements are gathered together to evidence the problem. But, as a rule, the statements identify what happened, not who did it.
The judge said that it was not reasonable and not fair to expect defendants to wade through such a lot of material, most of which could not be shown to be specifically related to them. Evidence of illiteracy (and digital illiteracy) was tabled. The councils were therefore instructed to identify, for each of the named defendants, the particular evidence relied on against each defendant.
Councils are between a rock and hard place when it comes to evidence. They need to demonstrate existing breach and apprehended further breach. They need to demonstrate that the breaches are unlikely to get permission. They need to demonstrate proportionality of the action which tends to involve factors like the previous actions of the defendants, adequacy of alternative site provision, welfare needs etc. They need to demonstrate that the decision to seek an injunction was taken properly. While 3728 pages is perhaps excessive, that is not a 10 page job either. Particularly as the court will throw out the claim for lack of evidence (as Hackney found last month). Indeed, the Havering decision contains a prime example. Seeking to counter claims of illiteracy, counsel for the councils said that the named G&T defendants were “sophisticated people with businesses, who were using sites for commercial enterprises, and who owned “brand new Range Rovers” and “incredibly expensive caravans”. The judge responded “I cannot assess this submission, as I have not been shown the evidence…”
Amber Valley BC v Haytop Country Park Ltd [2024] UKUT 237 (LC)
Jones vs Isle of Anglesey County Council and Another [2024][ EWHC 2582] (Admin)
originally written for Scottish Planner
Warwick DC v SSLUGC and others [2022] EWHC 2145 (Admin)
LB Richmond upon Thames v the King oao Owolabi Ariyo [2024] EXCA Civ 960
LB Lambeth v SSLUHC [2024] EWHC 1391
LB Barking and Dagenham v Zannat Ara Aziz [2024] EWHC 1212 (Admin)
Caldwell and Timberstore v SSLUHC [2024] EWCA Civ 467
Ward v SSLUHC and Basildon District Council [2024] EWHC 676 (Admin)
R oao Lisle-Mainwaring v RB Kensington and Chelsea and another
Southwood v Buckinghamshire Council [2024] EWHC 71 (Admin)
s172ZA TCPA 1990
Ariyo v Richmond Upon Thames LBC [2023] EWHC 2278
Kazalbash v SSLUHC and Hillingdon [2023] EWCA Civ 904
Removal of facilitating development
Pathfield Estates Ltd v LB Haringey [2023] EWHC 1790 (Admin)
Given its portrayal of the planning system so far, it is almost a given that season 3 of Clarkson’s Farm will not accurately present the detail of the Diddly Squat appeal decision. Here is our take. The decision is here. In summary, the LPA won almost all of the enforcement points. But simply being Jeremy Clarkson is apparently a material consideration which alters the planning balance! While he is popular, his celebrity is such that his farm shop will create significant problems beyond those of an ordinary farm shop and the inspector decided that these are problems which have already been accepted in granting his existing permission. Fewer of the harms to the AONB can therefore be attributed to the additional elements of the use. And these harms are outweighed by the economic benefits, benefits which are a result of his celebrity. So permission was granted for his farm shop and café and the associated parking and toilets. Clarkson’s popularity will be re-assessed in 3 years as the permission is time limited. Perhaps the inspector knows something we don’t. As viewers will know, Clarkson’s Farm operates in open countryside in an AONB. As well as agriculture, it has diversified to include a farm shop and a café in a lambing barn. The business tried to open a restaurant in a converted barn located some distance from the shop. The site is obviously used as a filming location. The business has proved popular and it now has significant parking and highway problems. The farm shop (with limited parking) has permission, the construction of the lambing barn (but not its use) has permission and there is permission for limited filming. The council enforced against the material change of use of the land to a mixed agricultural and leisure attraction use, comprising café, restaurant, gift/farm shop, parking and lavatory facilities. The notice was appealed. The appellant also sought (and was refused) permission for additional parking, access, storage and landscaping. This appeal was heard alongside the enforcement appeal. The inspector dealt first with the planning unit. The appellant alleged that there were three separate planning units (shop, café, restaurant), with each having a separate primary use. The council had enforced against a single unit in a mixed use. The inspector took into account that the shop/café was in a different ownership to the farm and that it had its own permission. But its activities clearly spilled out of the permitted area, extending to the proposed restaurant and the wider parking areas. The restaurant used the same parking as the shop. These were fenced/walled off from the remainder of the farm. He concluded that there was a single planning unit. As for the use of that planning unit, the inspector took issue with several items listed by the council. “Gift shop” was too ambiguous; a shop is a shop. Similarly, while visitors no doubt came for the experience, the business was not a “leisure attraction”. A leisure attraction required, said the inspector, something which the customer might be expected to pay for. There was no entrance fee here, just a shop and café. (It appears that the inspector was also concerned that any permission for a “leisure attraction” would create a very wide lawful use.) Nevertheless, there were several primary uses in a single unit so the development was a mixed use, in this case a “mixed use comprising agriculture, café, restaurant, farm shop, parking, lavatory facilities.” This put paid to the ground (b) and (c) challenges. The challenge was that the restaurant was a separate planning unit. As it was in the curtilage of the lawful farm shop, the appellant said that Class R permitted a change of use to a flexible use including a restaurant. In the light of his conclusion on the planning unit, the inspector rejected this. He said he would have rejected the Class R argument anyway as the restaurant was not clearly within the curtilage of the farm shop. The remainder of the uses cited in the notice were also challenged on the grounds that they were ancillary to the lawful farm shop use and not primary uses. The inspector concluded that, as the restaurant resulted in a mixed use, there had been a material change of use so it was irrelevant whether the other items were ancillary. As an aside, viewers of the series will recall the scripted glee with which the appellant came up with the “PD loophole” for his restaurant. It is fitting, therefore, that it was the restaurant which was the primary reason the breach was upheld. The inspector nevertheless looked at the extent to which the various alleged ancillary elements (other than the restaurant) were part of the lawful use prior to the breach. This was relevant to the fallback but also to what the extent of the material change of use truly was. He identified that the question was whether any of the elements represented a change in the character of the use. The inspector found that the level or vehicle traffic and parking went far beyond that for which permission had been given. And that the lambing shed was clearly not “by any stretch of reasonableness” being used for the purpose for which it was given permission. Even the toilet facilities went beyond what would be expected for the permitted farm shop. This was not intensification, it was a material change in the character of the use. The LPA even won the merits arguments on ground (a). The number of visitors, the traffic and parking problems, the outdoor seating, catering van and toilets clearly had an adverse effect on the AONB. The parking and landscaping proposed under the s78 application would have a similar effect. This had great weight. In the end though, permission was granted for the mixed use, including the use of the lambing shed as a café and the enforced against parking and toilets. Permission was granted under the s78 appeal for altered parking, storage and landscaping. Only the restaurant was refused. The inspector found that the parking would alleviate the current parking situation and highway safety even though it would not provide a complete solution. He accepted that a number of local suppliers benefited from trading arrangements with the shop and that the shop contributed to the local economy. He accepted that diversification was to be supported. These considerations also had great weight. Key to the decision, though, was the fact that permission had been granted, not just for a farm shop, but for a celebrity’s farm shop. Even if there was no café or restaurant, the popularity of the appellant was such that people would continue to visit the shop in numbers. This reduced to moderate the harm to the AONB caused by the new elements of the use because the permitted use already resulted in significant harm. The appellant’s celebrity might wane. In which case, the weight of the considerations in favour of the development would wane. The permission granted was therefore time limited to 36 months. The decision is well reasoned and fairly logical. The inspector did not say that the character of the use already permitted varied with the identity of the user. But the result seems to imply that the harms associated with the use could vary and that the LPA had accepted them all in granting permission. Yet it is difficult to think that the LPA could successfully have imposed conditions on the farm shop based on the identity of the applicant. The result is therefore troubling.
R oao Devonhurst Investments Ltd v Luton Borough Council [2023] EWHC 978 (Admin)
Muorah v SSHCLG and Brent [2023] EWHC 285 (Admin)
Atwill v New Forest NPA [2023] EWHC 625 (Admin)
McCaffrey v Dartmoor NPA [2023] 2 WLUK 341
Welwyn Hatfield BC v SSLUHC and Kabala [2022] EWHC 3175 (Admin)
Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30
LB Hackney vs JC Decaux (UK) Ltd [2022] EWHC 2621 (Admin)
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