South Somerset District Council v Hughes & Ors

When deciding whether to grant a planning injunction against gypsies, the court must consider all the circumstances. The planning breach is taken from the planning process, but the court must independently assess hardship, suitable alternatives and proportionality. The absence of sufficient alternative pitches is relevant; the local authority’s alleged culpability in failing to provide sites need not be determined. Cultural aversion to conventional housing is also a relevant Article 8 consideration. The court may rely on recent, reasoned planning decisions showing no real prospect of further permission, including temporary permission. Existing flood-risk material may be considered where procedural directions have excluded further expert evidence.

The local planning authority sought an injunction under section 187B of the Town and Country Planning Act 1990 against an extended gypsy family occupying land in Somerset after repeated refusals of planning permission and dismissed enforcement appeals. The injunction required the defendants to cease occupying the land and clear the caravans and mobile homes, subject to exceptions for a vulnerable adult and a minor.

The defendants challenged the injunction on Article 8 grounds and argued that the authority had failed to provide sufficient gypsy sites. They also challenged the assessment of temporary planning prospects, the treatment of conventional housing, and reliance on flood-risk material. The central issues were whether the judge had conducted the required balancing exercise and whether the injunction was proportionate.

1. Appeal dismissed. The renewed applications for permission to appeal were refused and the stay of execution was lifted.
2. Section 187B gives the court a discretion to grant an injunction which it considers appropriate to restrain an actual or apprehended planning breach. The governing approach is that in South Bucks District Council v Porter. The planning status and breach are taken from the planning process, but the court must consider hardship, suitable alternative sites, personal circumstances, health, education, environmental harm, urgency and proportionality.
3. The judge was entitled to consider the fact that South Somerset lacked sufficient gypsy pitches without deciding whether the authority had breached governmental guidance or was culpable. Availability of alternative sites was material; determining fault was neither necessary nor required by the guidance.
4. Cultural aversion to bricks-and-mortar accommodation is a relevant Article 8 consideration where an authority’s decision may compel gypsies to use it. The judge had taken that factor into account by recognising the defendants’ wish to live in the open and continue their traditional way of life. The factor did not prevent an injunction.
5. The judge was entitled to conclude that a further application, including for temporary permission, had no real prospect of success. Four inspectors had reached consistent conclusions, and the latest detailed decision expressly rejected temporary permission despite unmet need and the prospect of future sites.
6. The judge was also entitled to rely on the fourth inspector’s detailed flood-risk findings. The case-management order excluded further flood-risk evidence, but the defendants had not appealed that order and the inspector’s material remained relevant.

• Court of Appeal (Civil Division): [2009] EWCA Civ 1245. Appeal from the decision of HHJ Rutherford dated 13 November 2008. The appeal was dismissed, the renewed permission applications were refused and the stay of execution was lifted.
• Bristol District Registry: HHJ Rutherford granted an injunction under section 187B of the Town and Country Planning Act 1990, requiring the defendants to cease occupying the land and clear the caravans and mobile homes, excepting the third and fourth defendants.