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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Surrey Heath Borough Council v Robb & Ors [2020] EWHC 2014 (QB) (06 July 2020) URL: http://www.bailii.org/ew/cases/EWHC/QB/2020/2014.html Cite as: [2020] EWHC 2014 (QB) |
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QUEEN'S BENCH DIVISION
London, WC2A 2LL |
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B e f o r e :
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SURREY HEATH BOROUGH COUNCIL |
Claimant |
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- and - |
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JAMES ROBB (2) SUZANNE ROBB (3) THOMAS ROBB JNR (4) KAITLYN ROBB (5) SCARLETT ROONEY (6) PERSONS UNKNOWN |
Defendants |
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MR A. MASTERS (instructed by Mason & Co) appeared on behalf of the Defendants.
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Crown Copyright ©
MR JUSTICE FREEDMAN:
"1. Where each of the Defendants (sic) been living since they vacated the Land at the Knoll, please provide any documentary evidence to demonstrate the same: including notices of eviction/directions to leave which include their names if it was alleged they were living on roadside encampments; which boroughs they have been travelling through or living in; where they were based during the lockdown; and dates at different locations if they allege they were on roadside encampments.
2. If any of your clients contend that they were evicted/directed to leave by any Councils from a roadside encampment or unauthorised encampment in the last 6 months please state by which local authorities and which dates, with details of where the encampment was located;
3. Any real property or land owned by the Defendants with reference to which Defendant owns the property/land, or have been owned by any of the Defendants in the (sic) 3 years;
4. Any pitches or plots on caravan sites owned by any of the Defendants, or, which any of the Defendants have a tenancy or licence to occupy and their whereabouts with address details.
5. Any caravan pitches or plots any of the Defendants have occupied in the last 3 years with full details of the same.
6. The income and savings of each Defendant and their business interests and employment status both now and over the last 2 years.
7. Any tenancies or licences of any of the Defendants to occupy bricks and mortar housing which they have or have had the benefit of in the last 3 years and the reasons why that accommodation is no longer available to them.
8. Which local authority lists are the Defendants currently on for a traveller's pitch and when was their name added to the list.
9. Which schools are the children of the Defendants enrolled at, with which address given to the education authority, and on which dates were they enrolled in these schools.
10. What relatives do the Defendants have in the County of Surrey with bricks and mortar accommodation.
11. How was Mr Robb proposing to fund development of a bricks and mortar property on the Land he currently occupies.
12. Where did the static caravans currently on the site come from, when were they purchased and who delivered them, please provide receipts for purchase and delivery".
The application for an adjournment
(1) the desire of the defendants to hear the arguments was considered in the judgment of 24 June 2020. It was decided that they ought to be able to make arrangements to hear matters remotely, whether at a barrister's chambers or a solicitor's office or at some other offices. The failure to make arrangements for the defendants to be able to watch the proceedings has not been explained adequately. There was information in the most general terms about not being able to meet in counsel's chambers without identifying the enquiries or the answers. There was no information provided as to attempts to obtain facilities in a solicitor's office or in other offices and the inference is that these attempts were either not made or not made adequately. Whilst this might not have been straight forward in view of the current pandemic, the defendants have not shown that their failure to be able to attend remotely was unavoidable. They have had the advantage of their solicitor and counsel attending at the remote hearing on 1 July 2020 and so their interests have been protected. Their nonattendance in these circumstances was not a reason for an adjournment.
(2) It was decided by the judgment of 24 June 2020 that a remote hearing would take place on 1 July 2020 and no change of circumstances has been identified for the hearing not to take place. That judgment decided that there was not a need for cross-examination, but that such application could be renewed at the hearing. I shall expand on this below, but I reject the submission that cross-examination was required at the interim hearing.
(3) The statements of Jonathan Partington and Julia Greenfield were properly served as reply statements. Mr Partington properly replies to the two statements of Brian Woods and Julia Greenfield's third statement is a short rebuttal statement to the witness statements of James Robb. It also properly proves that despite the terms of the injunctions thus far the defendants have continued to occupy the site as a residential gypsy caravan site which appears to be uncontroversial.
(4) It was contended in the skeleton argument that there were problems about not having been given a hard copy bundle. However, an electronic and paginated bundle had been provided. The transcript of the judgment of Murray J was not made available until during the hearing, but the critical aspect here was the transcript of the hearing itself which had been provided. The judgment was substantially the same as that of the note of his judgment.
(5) The list of questions referred to above appeared to have been about relevant subjects. It is obviously right that the questions asked at 9.20 a.m. on 25 June 2020 could not be answered in the evidence of the defendants provided later that day at 1 p.m. as further directions of 22 June 2020. However, that does not explain why the answers to many of the questions could not have been provided by 1 July 2020; that is to say, a week after the questions were asked. The failure to answer the questions is not a basis for adjourning the hearing.
(6) The inability to listen to the evidence from mobile homes is answered by the first of these numbered points. The first and fifth points are aspects of the same point.
(7) Likewise, the sixth point is part of the same point and is dealt with in the first of these numbered points.
(8) The defendants were able to provide information relating to the children. The application for an adjournment seems to have in mind that the information provided orally at the hearing is inappropriate. There was no reason not to provide the information as ordered by written statements and any paucity in the information provided was not due to want of opportunity.
(9) The undertakings offered were not sufficient for the claimant and so a hearing was required in order to determine whether they were insufficient and/or what injunctions should be made until trial.
Cross-examination
Speedy trial
The new evidence since 22 June 2020
Planning evidence
Discussion
(1) The considerations about green belt and heritage buildings are factors which weigh heavily in favour of exclusion even for the next seven weeks until trial. The continued use of the site as a caravan site is inimical to the character of the land and adversely affects the land and this is a more potent consideration than what will happen to the defendants in the interim because of some of the factors referred to below.
(2) The change of use should not have been embarked upon without prior planning approval. The fact that retrospective planning permission might sometimes be granted does not justify the course of action taken.
(3) In view of the previous planning permission sought and the factors referred to above, the adult defendants would have known of the difficulties of obtaining planning permission prior to doing development work and moving on to site.
(4) That knowledge was particularly acute because of the effect of the unauthorised development and occupation of the land at Lightwater which was the subject of litigation between the parties, injunctions restraining occupation at a without notice stage by Turner J and on notice injunctions thereafter culminating in the full interim hearing before her honour Judge Sarah Richardson.
(5) The claimant has made a strong prima facie case on the evidence before the court that there is no reason to believe that the defendants would be homeless as a result of the injunction.
(6) There is also a strong prima facie case that Mr James Robb has the means to purchase expensive parcels of land and could, therefore, seek alternative accommodation.
(7) Mr Robb has links with other accommodation and has not addressed any of this with any particularity in his evidence.
(8) The site occupants have not approached the claimant over temporary accommodation or claimed to be homeless.
(9) There is also a strong prima facie case that there is no reason to believe that the defendants were short of money to be able to rent a property or the like.
(10) At the point when the injunction was served on the defendants, they had only been in occupation for under a week and so this was very short-term occupation. Mr Masters said that this was not relevant, but the shortness of occupation was taken into account by Lewis J in the Runnymede case at para.23 which involved a period of eight days between occupation and injunction. In this case the period is five days. In Runnymede there was a period of a further 17 days until the interim hearing. In this case it was a further 19 days. Lewis J also cited that it has to be taken into consideration whether the home was established lawfully or unlawfully: see Chapman v United Kingdom para.102 to which reference will be made below.
The original order of Murray J
"The fact is that there is properly in place an injunction prohibiting residential occupation of the site. To vary the injunction so as to permit the very action that it is designed to prevent would fail to acknowledge the force of the injunction".
A fuller quote appears in my judgment of 22 June 2020.
Human rights considerations
"Where a dwelling has been established without the planning permission which is needed under the national law, there is a conflict of interest between the right of the individual under Article 8 of the Convention to respect for his or her home and the right of others in the community to environmental protection. When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weight against the legitimacy of requiring the individual to move. Conversely, if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The Court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the Court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community.
103 A further relevant consideration, to be taken into account in the first place by the national authorities, is that if no alternative accommodation is available, the interference is more serious than where such accommodation is available. The more suitable the alternative accommodation is, the less serious is the interference constituted by moving the applicant from his or her existing accommodation.
….
113 The Court is therefore not persuaded that there were no alternatives available to the applicant besides remaining in occupation on land without planning permission in a Green Belt area. As stated in Buckley, Article 8 does not necessarily go so far as to allow individuals' preferences as to their place of residence to override the general interest (judgment cited above, p.1294 § 81). If the applicant's problem arises through lack of money, then she is in the same unfortunate position as many others who are not able to continue to reside on sites or in houses attractive to them."
The Bromley Case
The order made by Murray J on 12 June 2020
"I do accept that this is not the usual status quo of simply leaving what is on there on the basis that we know nothing about the family and their circumstances. This is an order asking them not to continue to occupy the land".
She went on to say:
"The simple fact is that they ought not to be allowed to remain on the site where they are clearly knowingly breaching planning control and have done quite a significant amount of environment harm and will no doubt continue to develop this site if they are left on there".
"In the present case it is the claimant's case that in breach of the injunction further individuals have moved on to the site. A full Porter hearing as envisaged by Mr Masters can and should be undertaken at the final hearing. At the interim stage the local authority must provide the best information and evidence that it can to enable the court to give consideration to the factors which weigh in the balance, whilst accepting that more detailed information may be available at the hearing. That must be right."
The court has acted on the information available at this stage in order to assess whether there is a case for an interim injunction. It is based simply on the evidence at this stage and in no way is it a dress rehearsal for a different exercise to be carried out a trial to which I shall shortly refer.
Conclusions