Ashford Borough Council v Stevens & Ors, Court of Appeal - Queen's Bench Division, August 03, 2018, [2018] EWHC 2101 (QB)

Resolution Date:August 03, 2018
Issuing Organization:Queen's Bench Division
Actores:Ashford Borough Council v Stevens & Ors
 
FREE EXCERPT

Case Nos: HQ17X02139, ATC18/0320

Neutral Citation Number: [2018] EWHC 2101 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Sitting at Winchester Combined Court Centre

High Street, Winchester, Hampshire SO23 9EL

Date: 03/08/2018

Before :

HIS HONOUR JUDGE RICHARD PARKES QC

(sitting as a Judge of the High Court)

- - - - - - - - - - - - - - - - - - - - -

Between :

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

Saira Kabir Sheikh QC (instructed by Sharpe Pritchard) for the Claimant

Stephen Cottle (instructed by Minton Morrill) for the Defendants

Hearing date: 14 June 2018

- - - - - - - - - - - - - - - - - - - - -

JudgmentHis Honour Judge Richard Parkes QC :

The Nature of the Dispute

  1. This case involves land known as Hatchentan, on the north side of Plurenden Rd, High Halden, Kent TN26 3JH (`the land').

  2. According to the Land Registry title, the legal proprietor of the land is the first defendant, David Stevens. John Hefferman, the fourth defendant, has told the Claimant's officers on several occasions that he is the owner, having bought the land from Stevens.

  3. The Claimant, Ashford Borough Council (`the Council'), is the local planning authority for the area of Kent that includes the land. It is concerned to prevent the land from being developed and turned into a static caravan site, in breach of planning law. The Council is represented by Ms Saira Kabir Sheikh QC.

  4. On 30 March 2018 Choudhury J granted the Council an injunction. The Judge ordered the Defendants (at that stage Stevens, Pieczonka and persons unknown) whether by themselves or by instructing, encouraging or permitting any other person, not to use the land or carry out works to the land in breach of planning control, and in particular not to (a) construct any hardstanding, access road, fences, walls or other means of enclosure or excavations or undertake any operational development of the land in breach of planning control, or (b) station any caravan or mobile home on the land for residential use or any other use in breach of planning control. The order included a penal notice.

  5. The order was made to prevent apprehended breaches of planning control, in accordance with s187B of the Town & Country Planning Act 1990. It seems to have been completely ignored. Hardstanding and a roadway were constructed, a timber building was erected, septic tanks were installed, and several residential caravans came onto and remain on the land.

    Applications before the Court

  6. There are two applications before the court.

  7. One is the Council's application dated 17 May 2018 for an order to commit David Stevens, Robert Pieczonka, John Hefferman, Susan (or Suzanne) Hefferman, John Ward, Edward Mongan and Paige Williams for contempt of court by acting in breach of the injunction. By order of 14 June 2014 the two Heffermans, Ward and Mongan were added as defendants.

  8. The other is an application dated 23 April 2018 by Paige Williams to vary the injunction. Ms Williams, who is represented by Mr Stephen Cottle, was joined as a named defendant by order of Soole J on 18 May 2018.

  9. Ms Williams' application is to vary the injunction to allow her and her family to remain on the land until their planning applications have been fully determined and/or any appeal to the Planning inspectorate resolved, and that no order be made on the Council's application for committal, or alternatively for the proceedings to be adjourned to allow sufficient time for the Council to re-house the defendants in what is termed `culturally appropriate' accommodation.

  10. The parties disagree about the merits of the planning application, but were the court to be persuaded that there is a real prospect of planning permission being granted by the Secretary of State, that would strengthen the applicant's hand.

    Contempt of Court

  11. Susan Hefferman, John Ward and Paige Williams have admitted contempt of court by stationing mobile homes for residential use on the land in breach of the order of Choudhury J. That contempt continues. Their sentencing has been adjourned pending the outcome of Paige Williams' application to vary.

  12. The committal application was adjourned as far as concerns Stevens, Pieczonka, John Hefferman, and Mongan. I gave directions for the service of evidence and skeleton arguments, and warned that if they did not attend the adjourned hearing the court would proceed in their absence.

    Nature of the Land and Planning History

  13. The Council's position is that the land is within the Biddenden and High Falden Farmlands Low Weald Landscape Character Area, where some of the characteristics are an undulating landscape of mixed farmlands, with agricultural intensification leading to loss of hedgerows, and small scale field pattern with frequent scattered farms and manors. The Council's objectives are to conserve and improve the landscape.

  14. The planning history of the land has included previous planning applications, which have been refused, for the use of the land to station residential caravans. Planning permission was granted in 2006 for change of use to the breeding of horses and ponies for sale, and the erection of a pair of stables and a tack room. That is the current permitted use.

  15. Before the defendants occupied the land, it was therefore an agricultural field laid to grass with an authorised stable building, hardstanding and fencing for horses.

  16. A temporary stop notice was issued on 17 Aug 2015 and on 21 Sept 2015 an enforcement notice (along with a stop notice) was issued. That prohibited the stationing of a caravan for residential use, the siting of a Portaloo in connection with the residential use of the caravan, and the laying of an additional area of hard surfacing.

  17. There was an appeal against the enforcement notice by a man called Rossiter, a Romany gypsy by descent, whose estranged wife was said to own the land. The notice was upheld (partly, as Mr Cottle points out, on the footing that Rossiter was not a gypsy for planning purposes). Compliance was confirmed by 26 January 2017. That enforcement notice remains valid and enforceable.

  18. On 29 March 2018 Susan Hefferman made an application for planning permission for five residential pitches, each to include a mobile home, utility room and touring caravan.

  19. On 9 April 2018 the Council declined to consider the application, because it related to the development of land to which a pre-existing enforcement notice related. It did so in the exercise of its powers under s70C, Town and Country Planning Act 1990, by which:

    ``(1)A local planning authority in England may decline to determine an application for planning permission for the development of any land if granting planning permission for the development would involve granting, whether in relation to the whole or any part of the land to which a pre-existing enforcement notice relates, planning permission in respect of the whole or any part of the matters specified in the enforcement notice as constituting a breach of planning control.

    (2)For the purposes of the operation of this section in relation to any particular application for planning permission, a ``pre-existing enforcement notice'' is an enforcement notice issued before the application was received by the local planning authority.''

  20. A further application for planning permission was submitted on Susan Hefferman's behalf on 12 June 2018, just two days before the hearing of Ms Williams' application to vary. It supersedes the application dated 29 March 2018. According to Brian Woods, the planning adviser for the Hefferman family, it was revised to reduce the number of pitches from five to two, for those persons in the greatest need. Each pitch would comprise a mobile home, `utility room' and mobile caravan.

    Background

  21. The background is as follows. I take it from the witness evidence adduced by the Council in support of the application for an injunction and the application to commit. I do not think that it is contentious, at least until 30 April, when the injunction was obtained. It is not yet clear how far, if at all, the Council's evidence of what took place after 30 April is disputed, because the affidavits belatedly filed on behalf of the applicant and her family do not condescend to detail.

  22. David Stevens is the registered proprietor of the land, which he bought for £42,000 on 17 October 2017. There is no documentary evidence that he has passed title to John Hefferman (as Hefferman has claimed).

  23. A contravention case was opened in early 2018 when it was found that a small brick electrical box had been installed along the southern boundary of the site to the west of the entrance gates. The owner (Stevens) told Joanne Alexander, a senior planning enforcement officer, on 28 February 2018 that it was there to provide electricity to the stables. Since there was no evidence of any intention to bring caravans onto the land, and the work involved no visual harm, the case was closed. However, it appears that this work was the precursor to what followed.

  24. As I have said, Susan Hefferman made a full planning application on 29 March 2018 for change of use of the land for the placing of 5 gypsy pitches, the laying of hard surfacing and the erection of 5 utility rooms. The application was made on her behalf by WS Planning & Architecture. The proposed occupants were a family group, said to be Susan Hefferman and Frankie, 13 (now 14); Paige Williams, Susan Hefferman's daughter, and her son Tommy (now aged 5); John Ward, who was said to suffer from depression and to care for his children at weekends; Edward Mongan or Monghan; and John Hefferman (Ms Hefferman's brother). As stated above, the Council declined on 9 April to determine that application.

  25. On 29 March Joanne Alexander telephoned Mr Stevens following reports of a digger and hardcore being delivered to the site. Stevens insisted that he was just doing what he had told her on 28 February, namely laying electricity from the...

To continue reading

REQUEST YOUR FREE TRIAL