Tewksbury Borough Council v Keeley & Ors, Court of Appeal - Queen's Bench Division, November 12, 2004, [2004] EWHC 2594 (QB)

Resolution Date:November 12, 2004
Issuing Organization:Queen's Bench Division
Actores:Tewksbury Borough Council v Keeley & Ors
 
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Case No: HQ 04X00439

Neutral Citation Number: [2004] EWHC 2594 (QB)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 12 November 2004

Before :

THE HONOURABLE MR. JUSTICE JACK

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Between :

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Mr James Pereira (instructed by Tewksbury Borough Council legal Dept.) for the Claimant

Mr. Michael Keeley and Mrs. Karen Adams appeared in person

Hearing dates: 3 - 4 November 2004

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Judgment

Mr Justice Jack :

Introduction

  1. In this action the Tewkesbury Borough Council acting in its capacity as a local planning authority seeks an injunction under section 187B of the Town and Country Planning Act 1990 against Mr Michael Keeley. No relief is now sought against the second defendant to the action, Mrs Karen Adams. Mr Keeley is the owner of land in Gloucestershire lying a little to the south of the village of Toddington and to the east of Tewkesbury. The land was originally called Warren Farm or Warren Fruit Farm. It is now divided and called Warren Fruit Farm, Warren Park Farm, Woodlands Farm and Hillview Farm. There have been planning problems in relation to the land for a long time, going back to 1988. Its lawful use is as agricultural land. It lies within a Special Landscape Area in the Council's development plan. On 22 July 2003 the Council passed a resolution authorising the Borough Solicitor, `subject to the evidence, to seek an injunction .... to restrain breaches of planning control involving the illegal stationing of caravans, the illegal storage of vehicles, the unauthorised parking of chassis with timber building sections on the basis that they cause serious harm to the character and appearance of an attractive area of landscape designated a Special Landscape Area.'

    The events

  2. The claim form naming Mr Keeley as the sole defendant was issued on 13 February 2004. On that day Cox J. granted an interim injunction restraining him from bringing any additional mobile homes or caravans onto the land and from allowing any residential use save in one caravan (which was that occupied by Mrs Adams and her children). On 23 February the injunction was continued by Hunt J. with a variation as to residential use permitting Mr Burns to continue to reside in a shed.

  3. The trial of the action took place on 3 and 4 November 2004. The Council was represented by Mr James Pereira. Mr Keeley appeared in person. Mr Pereira put forward a draft of a permanent injunction against Mr Keeley with 14 paragraphs. Mr Keeley did not object to the granting of an injunction and in due course the wording of all save 3 paragraphs was agreed. Those three paragraphs gave rise to a point of principle, a question of mixed fact and law, which requires determination by the court.

  4. Although Mr Keeley did not contest the granting of an injunction in some form in the circumstances of the case, as he has been unrepresented I should state that I have considered whether the circumstances are such that the court should exercise its jurisdiction under section 187B. It may be proper for the court to exercise its jurisdiction under the section in a variety of circumstances. One situation is where there is an unauthorised development in progress which the Council considers must be stopped immediately, that is, nipped in the bud. Another situation is where there is a long history of the unauthorised development and the service of enforcement orders has failed to provide control. The history of the site is set out in the statements of the Council's principal development control and enforcement officer, Mr Andrew Winstone, in particular his second statement. The immediate reason for the application for an order was the concern that Mr Keeley was intending to introduce further residents onto the land, but the Council's aim overall is to bring the planning situation within proper control, which it has been unable to do to date. I am satisfied by the history of the site that it is an appropriate situation for the court to exercise its jurisdiction and to make an order which can be enforced by committal. In reaching that conclusion I have had in mind what was said by the House of Lords in South Bucks district Council v Porter [2003] UKHL 26; [2003] WLR 1547 ... about the jurisdiction under section 187B and its exercise, in particular in paragraph 29 of the speech of Lord Bingham.

  5. In order better to understand the outstanding point of dispute which the court has to determine it is necessary to follow the course of events giving rise to it. I will leave out from the following history the Council's on-going struggle to get unauthorised caravans removed from the site, that is, caravans of the kind everyone would recognise as a caravan. I will also omit various other matters which were on-going at this time and are covered in Mr Winstone's second statement.

  6. On 13 December 2001 appeals were determined by the inspector against enforcement notices issued by the Council concerning 14 wooden buildings on the land, 13 of them constructed in July 2000 and one in 1994. The appellants were persons who were apparently tenants on the land. I am, however, satisfied by Mr Keeley's evidence that from 1988 when he told me that he purchased the land and put it in trust for his family he has been the moving force behind what has happened on the land since. The first ground of appeal, abandoned at the start of the hearing before the inspector, was that the buildings were caravans. That was a hopeless argument because they were wider than the maximum provided by section 13(2)(b) of the Caravan Sites Act 1968, were built on site and had the characteristics of buildings. The argument which was run at the hearing was that the buildings were permitted Part 6 of Schedule 2 to the Town & Country Planning (General Permitted Development) Order 1995, or, in the case of the 1994 building, its predecessor. That argument was rejected by the inspector. He held that the buildings were attached to holdings which did not exceed 5 hectares and were not for agricultural purposes but appeared to be small dwellings. He held that the appellants had behaved unreasonable in taking the matter to appeal, and made an order for costs against them. The land was by this time divided into 14 small holdings, now 16 small holdings, and the buildings were intended to be used by the tenants of these holdings.

  7. In January 2002 Mr Keeley wrote to the Council with a proposal to bring onto the land wooden caravans having some resemblance to the wooden buildings the subject of the appeal but mounted on a steel chassis with a draw bar. On 15 March 2002 the Council wrote to Mr Keeley stating its view that the proposal would involve operational development requiring planning...

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