Hertsmere Borough Council v Slattery & Ors

When reviewing an order concerning an injunction under section 187B of the Town and Country Planning Act 1990, the Court of Appeal determines the decision made on the material and arguments placed before the lower court. It should not ordinarily grant permission to appeal so that matters can be considered for the first time on new evidence. Where substantial merits, family or human-rights matters have not been presented below, the proper course is generally a fresh application to the Queen’s Bench Division to vary or discharge the injunction, or to address the original stay. The Court of Appeal should not pre-empt the lower court’s decision on that fresh material.

A deputy High Court judge granted an injunction against a community of gypsies occupying land which they apparently owned, but stayed its operation pending the resolution of relevant appellate litigation. After the relevant contingency materialised, Pitchers J lifted the stay. The applicants sought permission to appeal, relying before the Court of Appeal on new evidence concerning health, children’s education and the status of the site as a landscape conservation area. The central issue was whether permission should be granted to pursue a different outcome on material not placed before Pitchers J.

1. Application refused. The Court of Appeal’s function was to review Pitchers J’s decision on the way the matter had been presented and pursued before him.
2. On that material, Pitchers J could reach only one conclusion. The contingency identified in the original order had occurred, so the stay should be lifted and the injunction should take effect.
3. The applicants sought to rely on evidence which had not been placed before the judge. That was an inappropriate basis for permission to appeal. The Court of Appeal did not determine the merits of the proposed evidence, including the matters arising under Article 8 of the Convention or the possible error concerning whether the site was within a landscape conservation area.
4. The proper course was a fresh application to a judge of the Queen’s Bench Division to vary or discharge the injunction, or to stay the effect of the original order, supported by the evidence then available. Whether such an application should be entertained was for that judge to decide.
5. Order: application refused. Detailed assessment of the applicants’ publicly funded costs.

• Queen’s Bench Division: His Honour Judge Hepple QC, sitting as a Deputy High Court Judge, granted an injunction and stayed its operation pending relevant appellate developments.
• Queen’s Bench Division: Pitchers J lifted the stay after the contingency in the original order had materialised.
• Court of Appeal (Civil Division): Permission to appeal was refused because the proposed appeal depended on new evidence not before Pitchers J.