[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> South Cambridgeshire District Council v Gammell & Ors [2007] EWHC 2919 (QB) (07 December 2007) URL: http://www.bailii.org/ew/cases/EWHC/QB/2007/2919.html Cite as: [2007] EWHC 2919 (QB)

[New search] [Help]

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		7th December 2007

Mr Andrew Edis QC:

INTRODUCTION

1. This is a claim by the South Cambridgeshire District Council for an injunction under section 187B of the Town and Country Planning Act 1990 to restrain actual and apprehended breaches of planning control. The Claimant is the local planning authority for the area near the village of Cottenham where the site known as Smithy Fen is located. This claim concerns land within that site known as Plots 1-11 Victoria View. Other parts of the site are lawfully in use as plots for residential use by gypsies. There has been a long planning process in which applications for permission to use these plots for the same purpose have been considered. I shall set out that history below, but the result of it was that the First Secretary of State decided on 7^th December 2005 that the planning applications would be refused, and a challenge to that decision under section 288 of the Town and Country Planning Act 1990 failed before His Honour Judge Gilbart, Q.C. sitting as a Judge of the High Court on 20^th December 2006. These plots have never had planning permission for residential use, but have been occupied by residential mobile homes since 2003. That use is, therefore, as is accepted by the defendants, a breach of planning control and these proceedings are brought in relation to that breach. An enforcement notice was issued on 7^th February 2005 which was extended to 7^th December 2006 and whose operation has been suspended by the appeal procedures to either 20^th December 2006 or the date when an application for permission to appeal against the decision of Judge Gilbart QC was dismissed by the Court of Appeal. Since the end of the suspension of the operation of the notice, the occupation of the plots by the defendants has been a criminal offence, subject to any issues which might arise about the service of that notice on them and to resolving the issue about ownership of the land.

THE LAND

2. Smithy Fen is a roughly rectangular site of about 7.5 hectares north east of the main village of Cottenham. It lies outside the Green Belt. There are now 63 authorised plots on the site in three areas. There was once a gap of about 120m between the two larger areas of authorised plots, but this has narrowed somewhat by the grant of permission for four plots which lie along the South Western boundary of Victoria View. This line of properties at Pine Lane (numbers 1, 2, 3, and 6) contains an interruption because there are two plots, numbers 4 and 5, which do not have planning permission, and are not presently occupied for residential purposes. These have some relevance to the planning merits and to the arguments on availability of alternative sites and I shall return to them. The issue for the local planning authority recently has not been whether there should be a gypsy encampment at Smithy Fen, but how big should it be allowed to become. I have been shown the Land Registry Plans which are said to show title to the land comprising the plots in issue in these proceedings, and they are not altogether easy to reconcile with each other. It appears that the land is divided into three parcels each with its own registered title. One was acquired by Margaret Flynn on 15^th July 2004 for £4,000, the next by Danny O'Brien on 20^th July 2005 for £22,000, and the third by Daniel Flynn on 21^st December 2004 for £10,000. The registered proprietors are probably parties to these proceedings (as defendants number 23, 24, and 25) but have not contested them. I say "probably" because there is

no evidence to this effect and the names are not uncommon. If they are injunctions have already been granted against them in respect of their use of their land which require them to remove the residential mobile homes and other structures from the land and to rip and break up the ground of the site. Bridget Gammell, Margaret O'Brien, Elizabeth Sheridan and Kathleen Sheridan each assert legal ownership of the plot they occupy, but they have failed in their evidence to explain how this is so in view of the results of the search of the Land Registry which were annexed to the witness statement of Mr. Jones dated the 16^th July 2007. I cannot resolve any dispute as to title which there may be between the registered proprietors of the land and the defendants, but I shall proceed on the basis that the defendants' assertions of ownership are unpersuasive and that they do not assert any other interest in the land, such a licence or tenancy. This is not a critical factor in the outcome of the application and I shall deal with its weight in my conclusions at the end of this judgment.

3. Section 187B of the Act reads as follows:-

"(1) Where a local planning authority considers it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Part.

(2) On an application under subsection (1) the Court may grant such an injunction as the Court thinks appropriate for the purpose of restraining the breach."

4. These proceedings were issued on 17^th July 2007 using the procedure governed by CPR Part 8. They initially joined 25 named defendants and, as the 26^th party, "Persons Unknown". An application for interim relief came before His Honour Judge Reddihough sitting as a Judge of the High Court on 31^st July 2007 who, among other things, ordered that a further named defendant should be added, namely Hannie Flynn as defendant number 26. He granted permanent mandatory injunction orders against all defendants, save defendants 1 (Bridget Gammell), 4 (Margaret O'Brien), 6 (Anne Sheridan), 17 (Nellie Quilligan), 21 (Kathleen Gammell), and 26 (Hannie Flynn). These defendants were called the "exempt defendants". The injunctions against the non-exempt defendants forbad them from using the land for the siting of residential mobile homes and/or caravans without the grant of express planning permission, and also required them to cease using the land for the stationing of residential homes and/or caravans within 14 days and to remove the caravans and hard surfacing and other things from the site. The exempt defendants were ordered not to bring any further caravans or other structures on to the land until trial or further order. Directions for trial were given, which I shall set out because I have had to rule on an issue concerning the evidence for the hearing before me:

i) That [the exempt defendants] shall serve any witness statements within 28 days of this order;

ii) That the Claimant shall serve any evidence in reply within 14 days thereafter;

iii) The [exempt] defendants shall serve any further evidence in response within 14 days thereafter;

iv) [a direction for listing the trial];

v) That the question of calling oral evidence to be reserved to the trial judge.

5. The reason for the distinction in approach between the exempt defendants and the non-exempt defendants was that the exempt defendants appeared at the hearing by counsel and indicated their intention to resist the claim. The others did not appear. It subsequently appeared that Kathleen Gammell was included as an exempt defendant in error as counsel wrongly informed the Court that he represented her, when he did not. This was an oversight on his part. She ought now to be included in the injunction made by Judge Reddihough. On 10^th August 2007 an application to vary the Order was issued to add further exempt defendants, namely number 19, Elizabeth Sheridan, number 20, Patrick Quilligan, and number 22, Kathleen Sheridan. These people now also wished to contest the injunction. The application to vary the Order of Judge Reddihough was heard by His Honour Judge Seymour, Q.C. on 9^th September 2007 who adjourned it. He pointed out that these three defendants could attend at the trial and resist the grant of an injunction. I have been asked to deal with that application to vary, so as to make it clear that the three people concerned are not liable to committal for their occupation of their plots prior to this hearing. I grant that application and the Order of 31^st July 2007 is varied so that the numbers 19, 20 and 22 are to be added to the list of numbered defendants wherever it appears in the Order. This has the effect of discharging the injunctions in paragraphs 1 and 2 of the Order against those defendants. There is now no point in adding them to the injunction in paragraph 4 which only lasted until trial or further order. It also adds them to the directions for trial, although nothing turns on that.
6. The defendants who have resisted the claim, whom I shall call "the defendants" except where they need to be separately identified by name, are the adult occupiers of plots 1 (Bridget Gammell), 2 (Margaret O'Brien, Anne Sheridan, and Hannie Flynn), 6 (Nellie Quilligan), 8 (Elizabeth Sheridan and Patrick Quilligan), and 11 (Kathleen Sheridan). They are all entitled to be treated as having gypsy ethnicity, and they are relative newcomers to Smithy Fen, having arrived there in about 2003. This is not one of those cases where the defendants have a long standing connection with the particular site or locality in question. The defendants have relied on factual material deployed before Keith J in another recent case concerning Smithy Fen, and it appears from his findings that the arrival of a new group at Smithy Fen in about 2003 caused some difficulties for the existing community of gypsies who had occupied the site for some time previously. No criticism is made of the behaviour of any of these defendants in relation to this, and I mention it only to underline the point I have made about the relatively recent arrival of their community at this site. It is, however, clear that each of the defendants occupies the relevant plot as a home and therefore that their rights under Article 8 of the ECHR are fully engaged.

THE ISSUES

7. The Claimant contends that

i) There is no material change of circumstances since the decision of the First Secretary of State.

ii) The First Secretary of State considered all matters relevant to the question of whether the defendants ought to be compelled to stop living on the relevant plots of land.

iii) The planning position is now final, and the Court should not review the merits of the planning decision.

iv) That the Court should approach its discretion under section 187B in a structured and articulate way and that having done so should rule that the public interest in enforcing the system of planning control for the public good should outweigh the private interest of the defendants in seeking to continue to live unlawfully on their plots of land.

8. The Defendants submit that:-

UNLAWFULNESS OF THESE PROCEEDINGS

i) The decision to bring these proceedings was unlawful which should result in the local planning authority being "non-suited". In the alternative, these matters of unlawfulness ought to weigh against the local planning authority in the discretionary balance. Some points on the merits were either repeated in this context or made without indicating whether they are points going to unlawfulness of the decision to bring these proceedings or points relevant to the grant of the injunction or both. I have attempted to classify them according to my own understanding of the matters raised. In the result, this classification is immaterial because of my decision that the Claimant should not be "non-suited" and therefore the significance of all points made is that they should be given such weight as they deserve in the decision on discretion. Whether they are classified under this heading or subsequently, they will all receive such consideration. The unlawfulness relied upon is:-

a) The Claimant did not consider sanctions less draconian than a section 187B relief. This really means that the local planning authority should have prosecuted the defendants in the Magistrates' Court for failing to comply with the enforcement notice before seeking this injunction

b) A failure to make thorough welfare enquiries before taking this action, thus failing to follow the Guidance on Managing Unauthorised Camping at paragraph 5.9. Reliance was also placed on paragraphs 9-12 of Circular No 18/94/1994: Gypsy Sites Policy and Unauthorised Camping. Phrased slightly differently, this complaint would also amount to a failure to comply with paragraph 2.19 of Circular 10/97: Enforcing planning control: legislative provisions and procedural requirements.

c) At no stage in the process has the local planning authority considered exercising its power under section 24 of the Caravan Sites and Control of Development Act 1960 to provide sites where caravans may be brought. There is a general public law duty to consider all the options before taking action, including the exercise of this power. This duty is said to be supplemented by paragraphs 6.19 and 6.20 of the Guidance on Managing Unauthorised Camping. It is submitted that it would require costings and a timetable for alternative provision using the power under section 24 to have been considered and rejected on reasonable grounds in any case where a decision was to be taken to proceed under section 187B.

d) The decision was reached in breach of section 71 of the Race Relations Act 1976 as amended by the Race Relations Act (Amendment Act) 2000. Although in the Reports to the Planning Sub-Committee dated 31^st January 2007 and 3^rd August 2007 there is a Table which sets out various criteria including "Equal Opportunities" it is contended that this represents "lip service" only to these considerations. The Code of Practice on the Duty to Promote Race Equality published by the CRE under section 71(C) of the Act, it is submitted, requires a race impact assessment by paragraph 3.16 and none was carried out in respect of the decision to bring these proceedings.

e) It is submitted that the local planning authority ought to have asked itself (whether by reason of a race impact assessment or otherwise) whether it is disproportionate to evict these defendants when they have nowhere else to go, or whether it, the local planning authority, should find somewhere else for them to go.

f) The local planning authority failed to consider the adverse effects of its decision on third parties. In driving the defendants back to living on the roadside, the local planning authority is inevitably creating a risk of unauthorised camping which is a worse public nuisance than unauthorised development. It involves danger on the highway, work for the Police and increases racial tensions in the areas where it occurs.

MATTERS RELEVANT TO DISCRETION

ii) That the defendants' immediate prospects of finding alternative pitches can now be seen to be significantly worse than they were in 2005 when the Inspector and the First Secretary of State considered this question. This is relevant to the question of whether any new planning applications they may make have a reasonable prospect of success and to the question of whether the Court ought to grant relief in the exercise of its discretion under section 187B.

iii) However, although immediate prospects of finding alternative accommodation are worse than they were in 2005, the medium prospects are much better. This is because of Circular 01/06 which was not before the Inspector or the First Secretary of State (because it was published in February 2006). The prospects of finding an alternative site will improve substantially when the local planning authority implements that Circular and the local housing authority complies with its new duty under section 225 of the Housing Act 2004 (which is to be read together with section 3 of the Homelessness Act 2002) so that a housing strategy specifically addressing the needs of these defendants is adopted. This is associated with a further development whereby new legislation permits social landlords to provide gypsy sites. Therefore, a temporary planning permission at the present sites is more likely to be granted than was formerly the case to enable the defendants to live there while any new sites become available.

iv) Circular 01/06 also improves the prospects of success of any new application because it introduces a new planning consideration by paragraph 64, namely sustainability as there defined. Unauthorised camping by gypsies at the roadside is not as "sustainable" as the development of permanent sites in suitable locations.

v) The South Cambridgeshire Local Plan which was relied upon by the local planning authority and the First Secretary of State on appeal, HG23, was not saved in November 2007. There is now therefore no gypsy site policy in South Cambridgeshire and any decision maker on any new application would have regard to the absence of policy as a factor which may result in the success of the application. HG23 was a "criteria based" policy specifically designed to enable the local planning authority to consider proposals for gypsies and travelling show people when the need for such a site "is shown to be essential to enable the applicants to continue to exercise a travelling lifestyle for the purpose of making and seeking their livelihood". Where that threshold condition was met, 9 further criteria had to be satisfied before the application would be granted in respect of a particular site. In the present case, the First Secretary of State found that 7 of these were met, but that criteria 3 and 4 were not. These were:

"(3) The site would not, either on its own, or cumulatively, have a significant adverse effect on the rural character and appearance, or the amenities of the surrounding area.

(4) The site can be satisfactorily assimilated into its surroundings by existing or proposed landscaping; an approved landscaping scheme will be required."

vi) It is further submitted that Policy HG23 was unlawful anyway because it was not based on a quantitative assessment of the level of unmet need for gypsy sites in the area, and thus not in compliance with paragraph 12 of Circular 1/94. It ought to have accepted that there was a need rather than requiring it to be proved by the applicant. I have, however, just noted that the First Secretary of State did not refuse the applications because the threshold condition was not met. He accepted the need for sites, but refused them on grounds particular to this proposed location, having considered the personal circumstances of these applicants. This submission was available to the defendants on the challenge under section 288 but did not succeed there. In the circumstances, I shall not consider it further.

9. I have already re-organised somewhat the submissions made on behalf of the defendants in the above formulation and it is perhaps helpful to summarise them into three broad interconnected issues:-

i) The lawfulness of the decision to bring these proceedings: "the lawfulness issue".

ii) That it would not be proportionate to grant the relief sought in all the circumstances having regard in particular to the defendants' rights under Article 8 of the EHCR: "the proportionality issue".

iii) The Circular 01/06 and the new policies it requires improves the prospects of success of a planning application which can be issued as soon as 8^th December 2007 to such an extent that it would not be appropriate to grant relief: the "real prospect issue". For reasons which appear below, this issue arises from facts which are relevant to the respect the court should accord to the planning decision and I shall deal with these questions together below.

THE PLANNING PROCESS

10. Plots 1-11 Victoria View, Cottenham were the subject of a planning application dated 27^th March 2004 by Bridget Gammell, Anne Sheridan and Kathleen Sheridan for permission to develop the land as a gypsy caravan site with 11 pitches. I do not know how these particular applicants came to make the applications given what I have said about ownership above. Anne Sheridan does not assert ownership of the land she occupies, and no defendant asserts ownership of any land beyond the plot she occupies. This issue was not explored in the planning process. The application was refused by the Local Planning Authority by notice dated 17^th September 2004. Two of the registered titles (to Daniel Flynn and Danny O'Brien) were transferred after that date. An appeal against that refusal was lodged and Paul Taylor BSc (Hons), MRTPI, was appointed to report to the First Secretary of State on it, and on certain other appeals connected with other land at Smithy Fen. He also reported on an appeal against the relevant enforcement notice which had been issued by the Local Authority on 7^th February 2005, after the refusal of planning permission. His Inquiry opened on 12^th July 2005 and lasted 6 days. In his Report dated 17^th August 2005 he recommended that the appeals be dismissed, save that he recommended an extension of time for compliance with the enforcement notice. The First Secretary of State recovered all the appeals dealt with by Mr. Taylor because they "related to proposals giving rise to significant public controversy". He gave his decision by letter of 7^th December 2005 ("the Decision Letter"). I shall have to consider some aspects of his reasoning later, but for the purpose of this narrative I will set out his paragraph headed "Conclusions"

"37. The Secretary of State considers that the proposals seriously harmful to the character and appearance of the open countryside and that these effects could not be overcome by landscaping. For those reasons, the proposals fail to comply with policy HG23 of the Local Plan and are contrary to the development plan policies for the protection of the countryside. The Secretary of State also considers that allowing these appeals is likely to create a precedent for further development at Smithy Fen, which would be undesirable given the adverse impact on the character and appearance of the countryside already caused by the existing lawful development. The Secretary of State has carefully considered the general need for sites in the area, the appellants' need for a site, the availability of alternative sites, and the health and educational needs of the appellants and their children. He concludes that these factors do not outweigh the serious harm to the countryside done by the appeal proposals. He has considered the possibility of temporary planning permission but has concluded that the proposals would cause serious harm to the countryside, which could not be mitigated by conditions."

11. In relation to the appeal against the enforcement notice, the First Secretary of State agreed with the Inspector's recommendation that the notice should be upheld but that the period for compliance should be extended from 2 months to 12 months which would "allow the residents time to find somewhere to live and would minimise the disruption of the education of the children of school age."
12. There was an appeal under section 288 of the Town and Country Planning Act 1990 which was heard by His Honour Judge Gilbart, Q.C. who dismissed it on 20^th December 2006. He had before him appeals on behalf of the occupants of plots 2, 6, 8, 11, and 12. He thus did not have any appeal on behalf of Bridget Gammell of Plot 1, and the operation of the enforcement notice against her does not seem to have been suspended by that appeal process. Her occupation of Plot 1 appears to have been criminal since 7^th December 2006. I am concerned with plots 1, 2, 6, 8, and 11. Plot 12 is not before me because the Local Authority decided not to seek injunctive relief against the occupants of that plot because of their state of health.
13. The applications for planning permission were treated throughout as applications for personal planning permissions, which means that if granted they would enure only for the benefit of the successful named applicant.
14. Although before the Inspector some of the applicants were not treated as "gypsies" the Secretary of State held that all applicants were gypsies and this approach was adopted by Judge Gilbart QC. This was because in 2006, by Circular 01/06, a new definition of "gypsy" was adopted for these purposes. The Inspector had directed himself in August 2005 by the then current guidance, but the First Secretary of State chose to follow the new guidance in anticipation of its promulgation. It is not suggested before me that any defendant ultimately suffered any detriment in the planning process by reason of having been wrongly classified by the Inspector.
15. I consider that the Report of the Inspector, the decision of the First Secretary of State, and the decision of Judge Gilbart, Q.C., taken together, show that the planning process in this case has been extremely thorough and that it has involved a careful weighing of the policy issues and of the facts. Four of the defendants who are now before me appeared at the Inquiry and were represented there by counsel who called evidence and cross-examined the evidence adduced by other parties. They were also represented before Judge Gilbart QC by counsel. I would be duplicating his task if I set out his judgment here, which would be an error of principle as well as prolixity. My task is not to review his decision. It is not submitted before me that any flaw in the proceedings up to and including his decision should inhibit the grant of the injunction sought. It follows from this that the defendants' right to use the land for residential purposes has already been the subject of extensive proceedings, including judicial proceedings. Judge Gilbart QC directed himself in accordance with the general principles of law at paragraph 23 of his judgment, and also reviewed the decision of the First Secretary of State against those principles. He recited the Decision Letter and subjected it to close analysis in the light of the criticisms of it made by the defendants. It is a matter of historical fact that Judge Gilbart QC directed himself in accordance with the decision of the Court of Appeal in Lough v. First Secretary of State [2004] 1 WLR 2557, see his paragraphs 47-52 and concluded in paragraph 53 of his judgment that

"Here the Secretary of State at paragraph 36 of the decision letter balanced the public interest (which lay in protecting the environment from the effects of the proposed development) against the interference with their home and family life which would result in the McCarthy's and the other appellants having to use unauthorised sites or live by the roadside. He concluded that it was necessary in the public interest to refuse planning permission, and that that would not place a disproportionate burden on the Appellants. I can find no flaw in that reasoning, not any failure to apply the precepts of the ECHR. It is precisely the kind of balancing exercise endorsed in Lough."

16. Therefore, a balancing exercise requiring a determination of proportionality with the defendants' rights under Article 8 of the EHCR being at the heart of the process has already taken place. An application for permission to appeal against the decision of Judge Gilbart QC was issued and dismissed on, I think, 9^th May 2007.
17. It was described by counsel in submissions as a "moot point" whether the continued occupation of the plots (other than plot 1) by the defendants in breach of the enforcement notice became a criminal offence on 20^th December 2006 when Judge Gilbart QC dismissed the section 288 challenge or on the date when the Court of Appeal refused permission to appeal against that decision. I did not hear submissions on this question and have not been asked to decide it. I am surprised if it is "moot", but it is not material to my task. Viewing it most favourably to the defendants, they are to be treated as having been on notice with effect from 20^th December 2006 that if the Court of Appeal dismissed their appeal they would thereafter have no defence to a prosecution for failing to comply with the enforcement notice. There is no evidence that they made any preparation during that time to secure other accommodation or to take any step to avoid being in breach of the criminal law. As at today's date they have been in breach of the criminal law for at least 6 months.
18. A Report dated 31^st January 2007 was placed before the Local Planning Authority which set in train the process which has led to the issue of these proceedings. There was a further Report of 18^th June 2007, and one of 3^rd August 2007. These documents show the history of the consideration of the present proceedings by the Council, and are at the heart of the grounds on which the application is said to be unlawful. I shall return to their terms later in the context of the submissions made.
19. The defendants decided that they would make further applications for planning permission. The documents are dated 16^th August 2007 but owing to some procedural difficulty they were not registered as having been received by the Council until October. The application is substantially the same as the original one except that it seeks, for each plot, permission for 1 mobile home, 1 touring caravan, and a day room. The original applications were for 2 residential caravans. The addition of the day room seems at odds with the defendants' claim to impecuniosity, and also aggravates rather than minimises the impact of the proposals on the environment. It is also inconsistent with an application for temporary planning permission, since it would involve the construction of permanent structures on the land. I was informed that the application for a day room was inserted by the Planning Consultant without instructions. I will not therefore draw any adverse inferences against the defendants on this account.
20. On the 7^th November 2007 the local planning authority decided under section 70A of the Town and Country Planning Act 1990 to decline to determine the August/October 2007 applications because they were substantially the same as the earlier applications which had been determined less than two years before. There can be no appeal against this decision, although Judicial Review might be available (I do not mean to suggest that any such application would have merit, only that there is a route by which such decisions can be reviewed by the court). An identical application could be submitted on 8^th December 2007 and the local planning authority would not be able to take advantage of section 70A, because the first applications were determined by the First Secretary of State on 7^th December 2005.

THE EVIDENCE BEFORE THIS COURT

21. In addition to the evidence collated by the Inspector in his Report of August 2005, a considerable body of evidence has been filed in these proceedings. I have a witness statement dated 16^th July 2007 from Gareth Jones who is the Corporate Manager, Planning and Sustainable Communities for the Claimant council, which sets out the background and introduces documents. There is a witness statement from Sarah Green, solicitor for the defendants, dated 23^rd August 2007 whose principal purpose is to introduce documents. Witness statements by each defendant were served, setting out their personal circumstances and their evidence about the present availability of alternative pitches. The defendants relied upon a Statement by Alison Heine, a planning consultant with particular experience in assisting "Gypsy-Travellers cases in obtaining planning permission for caravan sites", dated 27^th August 2007. Mr. Jones prepared an undated response to that which originally appeared in the defendants' bundle in a draft form, but which has now been replaced by the final version at Bundle 2 page 380. There is a statement from the defendants' solicitor, Janine Sargoni, dated 1^st November 2007 and a response to Mr. Jones from Alison Heine dated 11^th October 2007. Finally, Mr. Jones prepared a witness statement dealing with the decision under section 70A and appending the Report to Committee from November 2007 which recommended it to the local planning authority. I received two further factual witness statements on behalf of the defendants soon after the start of the hearing, and some further evidence after the conclusion of the first stage of the hearing which was the subject of further oral submissions on 30^th November 2007 at an adjourned hearing.
22. At the outset of the hearing, Mr. Stephen Cottle, counsel for the defendants, made an application designed to result in oral evidence being received on this application. As recorded above, Judge Reddihough reserved this issue to Trial. This was opposed by Miss. Saira Kabir Sheikh, on behalf of the Claimant. I understood that Mr. Cottle wished to cross-examine Mr. Jones, and also understood that Miss Sheikh did not wish to cross-examine any of the defendants' witnesses. I think that Mr. Cottle wished to call at least some of his witnesses anyway, and he certainly had Miss Heine available at Court for the purpose. I declined to permit any cross-examination of any witness. If Mr. Cottle's concern was that his own evidence might require supplementing, then his remedy is to seek permission to adduce further written evidence which he has not done. I have in fact received two further witness statements from his clients since the bundles were compiled and my account above of the evidence received shows that a good deal of it was served late, but admitted nonetheless. In deciding not to permit Mr. Cottle to cross-examine Mr. Jones under CPR Part 8.6(3) I took into account the following factors:-

i) No substantial issue of fact was identified. There are two areas where factual material is relevant which was not considered by the Inspector, and the First Secretary of State and reviewed by Judge Gilbart QC. The first is as to the present availability of alternative sites, and the second concerns the process by which the Council decided to initiate these proceedings.

ii) Alternative Sites: In discussion with counsel for the local planning authority both at the start and end of the hearing, it became clear that it is not suggested that there is an alternative site to which these defendants can now go if they are evicted by injunction from Victoria View. It is clear from the Report of the Inspector, and the Decision Letter, and from the judgment of Judge Gilbart QC that there is a grave shortage of such sites. The First Secretary of State allowed an extension of 12 months for compliance with the enforcement notice precisely because finding alternative accommodation is likely to take a considerable period of time. Mr. Cottle said that he wanted to ask Mr. Jones to identify the available pitches to which they could now go, but in the light of what I have just said that is an unnecessary question. I am intending to proceed on the basis that there are no available pitches within the gift of the local authority now, and that the defendants would necessarily be involved in a search for alternative accommodation which is suitable for their traditional way of life. This is not a case where there is any evidence that the local planning authority has done anything positively to facilitate that search, or where there is evidence that the defendants have conducted such a search or sought the assistance of the local planning authority in doing so. Thus, I am proposing to approach the case on this issue on a basis which is favourable to the defendants in that I will assume that any injunction will probably cause them to be accommodated for an uncertain period of time either in unauthorised encampments or in bricks and mortar provided for them by the local authority under its duty as housing authority. I believe that it is inherent in the submissions made on behalf of the local planning authority based on the decision of the Court of Appeal in Leanne Codona v. Mid-Bedfordshire District Council [2004] EWCA Civ 925 that they accept that this is the right approach. I will take into account, less favourably to the defendants, that they have still not adduced any evidence of an organised search by them for alternative accommodation despite the fact that they have known for four years that their occupation of their present sites was precarious and for some months that it now constitutes a criminal offence.

iii) The issue of proportionality in the context of the rights of the defendants under Article 8 of the ECHR requires the court to address the circumstances as they are now, and not only as they were at the time of the Inspector's Report, the Decision Letter, or the decision of Judge Gilbart QC. I therefore gave the directions identified at (vii) below to afford the parties an opportunity to produce further up to date evidence.

iv) The Decision to Bring this Application: The challenge to the decision to initiate these proceedings is essentially a public law challenge in which it is submitted that the Council has acted unlawfully in deciding to bring proceedings under section 187B. This can properly be considered in the usual way in which such challenges are decided which does not involve oral evidence.

v) Legal Guidance: Lord Hutton in South Bucks District Council v. Porter [2003] 2 WLR 1547, at paragraph 92 was able to envisage cases in which a Judge on a section 187B application might have to hear evidence on the planning merits but said:-

"But I think that such cases would be rare and I consider that a judge should be alert to ensure that he does not embark on the determination of an issue which would, in reality, involve him in the assessment of planning considerations which lie in the ambit of the functions of the local planning authority."

vi) In Wychavon District Council v. Rafferty [2006] EWCA Civ 628 at paragraph 66 Tuckey LJ expressed the view that witnesses should not be called and cross-examined on planning issues to enable a judge to form a better view of the prospects of success of outstanding planning applications or appeals. He said

"Such a course is I think unnecessary to enable the court to form a broad view of the planning prospects which it can and should do from the papers…."

vii) Directions for Further Evidence: The defendants have filed evidence about their personal circumstances, and I would allow further evidence without question if those circumstances had changed in any relevant way since they did so. The single factual matter of relevance which is not adequately covered by existing evidence or part of the "planning prospects" is the matter of where the defendants might go if the injunction is granted. This issue was considered as part of the planning process, as I have indicated above, but it is plainly part of the material which falls to be considered in deciding whether to grant an injunction or not. Matters may have changed since the consideration of the question by the Inspector. I therefore directed that the council should make and serve a statement by 4pm on Wednesday the 28^th November 2007. Mr. John Koch produced the witness statement of that date to which I have already referred. That confirms that the local planning authority has no available pitches to offer these defendants and that it is likely that the local housing authority will discharge its duty to the defendants if they become homeless by offering bricks and mortar accommodation in the first instance. He confirms that these defendants would be categorised as a priority need because they have school age children. I also gave the defendants leave to serve any further evidence on this point by the same time and date. They have served a further statement by their solicitor which attaches a further statement by Kathleen Sheridan and some documents apparently emanating from Amos Webb of Chesterton Fen and Mr. McCarthy of Plot 12 who, unlike these defendants, has apparently been searching for land in Cambridgeshire energetically for some years. It is an irony which does not favour the defendants that the most energetic search has been pursued by the man whose health is so poor that the local planning authority has decided not to seek an injunction against him.

viii) The above approach to the evidence seemed to me to address fairly a potential difficulty in the fact finding process which may result from use of the Part 8 powers to allow oral evidence. In the absence of pleadings and exchange of witness statements, and the other pre-trial steps involved in a multi-track action, the witnesses have less opportunity to focus prior to the hearing on the factual issues about which they may be asked. This may cause witnesses to be asked questions without having properly considered and researched the material required to answer them, and may result in an unstructured process at trial which is not conducive to accurate and proportionate fact finding. I was able to focus on the factual issue on which I required assistance and to give directions to ensure that such assistance was forthcoming.

THE LEGAL BACKGROUND

23. The power under section 187B is an unusual one. It was introduced by the Planning and Compensation Act 1991 with effect from 2^nd January 1992. Prior to that, planning control was enforced by the use of the criminal law and injunctions were granted on principles which were developed once it was accepted that local planning authorities had sufficient standing to bring public interest proceedings in their own name. It is part of a battery of enforcement powers which comprises:-

i) Prosecution for breach of enforcement or stop notices. The powers of

the Court on such prosecutions are limited to the imposition of fines

and costs.

ii) Section 187B, which involves a consideration by the Court of the proportionality of granting an injunction. If the Court, having weighed the balance between the legitimate aim of the state in upholding a system of planning control in the public interest, and the rights of the defendants which are protected by Article 8 and, perhaps by Article 1 of the First Protocol of the ECHR, decides that an injunction should be granted then breach of the injunction can be punished with imprisonment. It is material to record that imprisonment for breach is not automatic. The question of punishment is considered by the Court after a further consideration of the case and imprisonment is not the only option. Nonetheless, the Court will not grant an injunction unless satisfied that imprisonment should be one option available to the Court in the event of continued unlawful occupation of land in breach of an injunction. By that stage, of course, the situation of the defendants would be aggravated by defiance not only of an enforcement notice, but also of the injunction. The court would, again, ensure that any penalty was proportionate to the wrong committed and would take into account the personal circumstances of the defendants as they then were. A finding that imprisonment should be available to the Court as an option should the injunction be disobeyed is not at all the same as a finding that these defendants are deserving of imprisonment now.

iii) Direct action under section 178 of the Act. This was referred to by counsel for the local planning authority as the most draconian option. It does not require the prior approval of the Court and involves the local planning authority physically taking possession of the site by force if necessary. Counsel for the defendants suggested that it might not be as draconian as section 187B proceedings because imprisonment could not be imposed. He said that people often simply leave when they see the bailiffs arriving and therefore that this option is the least onerous on defendants who simply leave without having been fined or imprisoned. The use of this power has been considered by Ouseley J in two recent cases, R (O'Brien) v. Basildon DC [2006] EWHC 1346 Admin and R (Smith) v. South Norfolk Council [2006] EWHC 2772 Admin He distinguished between the roles of the Court when acting on a judicial review challenge to a decision under section 178 and when determining an application under section 187B. Under section 187B the Court is the decision maker, with a full and unfettered discretion, and is not limited to reviewing the decision of another body on public law grounds. Section 187B affords those against whom it is deployed a substantial access to a Court in which all relevant circumstances can be considered as at the date of the hearing and before any question of sanction arises. For this reason, and because of the shock particularly to the elderly and to children, of eviction by force, I consider that counsel for the local planning authority is right to submit that the section 178 power is a more draconian step than an application for an injunction. The council did consider it and decided not to use it.

24. Section 187B has generated a good deal of case law recently, specifically in the context of local planning authorities' attempts to uphold planning control where the issue has concerned accommodation for gypsies. I have been provided with a great deal of material of this kind and am very grateful for the analysis of the law by the first instance judges who have had to address these issues. Having considered all the authorities cited to me, I have come to the conclusions that:-

i) Decisions which do not concern the section 187B power at all, or which concern other powers but which mention section 187B in passing, and not as part of the ratio, are of limited assistance. This observation includes cases on the section 178 power and cases on committal for breach of injunctions granted under section 187B, as well as decisions entirely remote from the present context such as Stovin v. Wise [1996] AC 923. I was, on reflection, surprised that counsel cited three cases to me which were distinguished by Silber J in South Cambridgeshire District Council v. Flynn and others [2006] EWHC 1320 (QB), a case I mention further below. The three decisions were: South Bucks District Council v. Smith [2006] EWHC 281 (QB) a decision of David Clarke J, West Glamorgan County Council v. Rafferty [1987] 1 WLR 457, and First Secretary of State v. Chichester District Council [2004] EWCA Civ 1248. Silber J explained at paragraphs 80-87 why these decisions are of no assistance in deciding the issues which he had to decide, which are very similar to those which I have to decide. Silber J was plainly right, and I shall not repeat his observations here.

ii) The impact of the Human Rights Act 1998 and the ECHR on planning control is the subject of Chapman v. UK [2001] 33 EHRR 399. This decision informed the decision of the House of Lords in South Bucks v. Porter [2003] 2 WLR 1547 which I deal with below.

iii) The principles the Court is required to follow are explained authoritatively by the House of Lords in South Bucks v. Porter [2003] 2 WLR 1547, which limits the extent to which further citation of authority is of value. That guidance has been applied by the Court of Appeal in Davis v. Tonbridge and Malling Borough Council [2004] EWCA Civ 194, Mid-Bedfordshire District Council v. Brown [2004] EWCA Civ 1709, and Wychavon District Council v. Rafferty and others [2006] EWCA Civ 628. I am plainly bound to read Porter in the light of those decisions.

iv) In view of what I have said at (ii) above, the decision in Porter establishes a principled approach for the Court to follow by which it will ensure that the defendants' Article 8 rights are fully respected in the decision making process.

v) The present case does not involve any new legal principle not already covered by the authorities I have just mentioned.

FACTS RELIED ON FROM OTHER CASES

25. Some cases were cited to me in order to show that the planning process is never, in one sense, "final". I was asked to consider the history of Mrs. Porter's planning applications set out in South Bucks DC v. Porter [2003] AC 558 and South Bucks DC v. Porter (No 2) [2004] 1 WLR 1953 in this context. Despite things having got as far as the grant of a section 187B injunction on 27^th January 2000, she was granted planning permission on a subsequent application by decision letter of 19^th February 2002. I shall bear in mind that, subject to section 70A, planning applications may be made repeatedly and that different decision makers may take different views.
26. Two of the decisions cited to me were cited principally for their factual rather than their legal content. These were South Cambridgeshire District Council v. Flynn and others [2006] EWHC 1320 (QB), a decision of Silber J given on 7^th June 2006, and South Cambridgeshire District Council v. Secretary of State for Communities and Local Government and Brown [2007] EWHC 2117 (Admin), a decision of Keith J given on 18^th September 2007. They concern other applications involving the same local planning authority which brings this case. I shall deal with each in turn.
27. FLYNN and others

i) This is relied upon by the local planning authority on the "real prospect issue". It is a decision by Silber J whereby he granted section 187B relief to the local planning authority in respect of land at Pine View, Smithy Fen, which, like Victoria View, falls in the space between the two principal areas of authorised plots. He considered Circular 01/06 in deciding whether to grant 187B relief.

ii) The land which was the subject of the 187B relief granted by Silber J is larger than Victoria View, but in part shares a boundary with it. The local planning authority reached the same judgment in respect of that land, as it did in respect of the land with which I am dealing. The same process of a Report by an Inspector after a hearing and a decision by the First Secretary of State was followed and the planning judgment of the local planning authority upheld.

iii) In that case, see paragraph 29, the local planning authority carried out detailed inquiries and consideration of the personal circumstances of each plot occupier before deciding whether to start these proceedings. Interviews were carried out of the occupiers and the school and local Health Trust were also contacted. The procedure in the present case was not as thorough as this and I cannot conclude that the council's decision to bring these proceedings was "founded on a full understanding of the personal circumstances of the relevant defendants" as they stood in 2007 when the decision was made. This may in part have been because in June 2007 the council believed that the defendants were not on the site, and therefore their personal circumstances were irrelevant. The assessment of serious harm to the countryside, however, was the same in Flynn as it is in the present case. It outweighed the personal circumstances of the defendants in that case, which included broadly similar personal circumstances and the lack of any immediately available alternative pitches for gypsy caravans. Silber J accorded this planning judgment "substantial respect" as appears from paragraph 44. This decision therefore is important, not only as a legal authority, but as part of the background facts of the present case. The Court must treat like cases alike, and the fact that the local planning authority has taken enforcement action under section 187B in respect of land which forms part of the same area as Victoria View is, in my judgment, material in that it adds some weight to the respect which I accord to the planning decision in the present case. That weight would already have been substantial because of the extensive history of careful consideration accorded to the land and the personal circumstances of the defendants by the Inspector, the First Secretary of State and Judge Gilbart QC. The site which was the subject of Silber J's decision was ultimately cleared by the authority because the injunction was not universally obeyed. The reputation of the planning system and of the law would not be enhanced by these defendants being allowed to continue to live at Victoria View unless there was some materially different factor in their case which justified that different treatment. The court is astute to detect any such differences and to give them due weight, but in their absence this is a factor which deserves some weight in the discretionary balance.

iv) I note that Silber J heard similar submissions to those which have been made to me on the effect of the Circular 01/06 on the real prospect issue, and was not persuaded by them. Part V of his judgment at paragraphs 99-130 contains an analysis of the Circular and the relevant arguments to which I am greatly indebted, and with which I agree.

28. BROWN

i) This was an application by the local planning authority under section 288 of the 1990 Act to review the decision of an inspector to grant personal planning permission to Mr. and Mrs Brown in respect of one plot which they had bought as a home for their family, including their seriously disabled daughter Kelly Marie. It failed. The legal principles applied by the court in reviewing the Inspector's decision are not relevant to my decision

ii) The reason why it has been cited is because the Inspector found that there was an "unmet need" for sites with planning permission for gypsy use in the area, which is the same as the area with which I am concerned. She also found that if planning permission was refused to Mr. and Mrs. Brown "there was nothing to suggest that a suitable and affordable site would become available within the foreseeable future", see paragraph 20.

iii) Keith J considered various challenges to the Inspector's decision and rejected them all. In doing so he reviewed the evidence which had been before the Inspector about alternative sites and held that she had been entitled to come to the conclusion she had. He did not make any findings of fact himself, and the evidence before the Inspector was not the same as the evidence before me. When dealing with Mr. Amos Webb's evidence below, it will appear that I have come to a somewhat different conclusion about Chesterton Fen from that arrived at by the Inspector in Brown. As far as another suggested alternative site is concerned, Greengates Piggeries, the Inspector in that case found that there would not be a plot available for Mr. and Mrs. Brown in the immediate future. This is still the case, as Mr. Koch makes clear in paragraph 20 of his witness statement of 28^th November 2007.

iv) I note that Keith J contrasts the case of the applicants in the Smithy Fen Inquiry with that of Mr. and Mrs. Brown adversely to the former in paragraph 52. He said:

"First, unlike Mr. and Mrs. Brown, many of the applicants in the Smithy Fen Inquiry did not have their roots in Cambridgeshire. The Inspector in that Inquiry had found, in paragraph 7.40 of his report, that they had "different travelling histories extending to different areas all round the country". Secondly, although some of the applicants were relying on health and educational issues which were said to justify permitting them to remain at Smithy Fen, none of their cases were remotely similar to the exceptional circumstances which Kelly Marie's condition gave rise. The needs of the Brown family were very different from those of the families in the Smithy Fen Inquiry."

v) It seems to me, for the reasons I have given, that the decision in Brown is not helpful in disposing of the application in the present case. It plainly lacks the degree of similarity on the facts which gives rise to any consideration of treating like cases alike, it gives rise to no legal authority on the operation of section 187B and it considered evidence on the Chesterton Fen site which is not the same as the evidence which I have received. In the result, that last point is not very material since I have found that I do not know whether Mr. Webb's land will become available or not. I cannot therefore treat it as an extant opportunity for the defendants.

DISCUSSION AND ANALYSIS

29. I shall apply the principles identified in Porter relevant to the broad issues I have identified and then analyse the evidence to show what weight I have given to the various contentions. I described the issues as (1) the lawfulness issue; (2) the proportionality issue; and (3) the real prospect issue (which is factually distinct but is a consideration dealt with alongside the proportionality issue). In approaching the three broad issues, I have in mind the submissions of counsel for the defendants as summarised above.

LAWFULNESS OF THE DECISION TO SEEK 187B RELIEF

30. At paragraph 39 of his judgment in Porter in the Court of Appeal, upheld and approved in the House of Lords, Simon Brown LJ said:-

"Relevant too will be the local authority's decision under section 187B(1) to seek injunctive relief. They after all, are the democratically elected and accountable body principally responsible for planning control in their area. Again, however, the relevance and weight of their decision will depend above all on the extent to which they can be shown to have had regard to all the material considerations and to have properly posed and approached the article 8(2) questions as to proportionality."

31. It follows from this that if the local planning authority has acted lawfully in properly having regard to all the material considerations and to have considered the proper questions properly, then the fact of their decision weighs in the balance in their favour. It does not follow that if they have made some error in doing so their application automatically fails. It simply lacks some strength which it would otherwise have. In some cases that lack of strength might, in the balance, be enough to defeat their application. In others it will not. The extent of their unlawfulness will be relevant. If the court concludes that the local planning authority has elected to seek 187B relief as an arbitrary and oppressive use of power and has not addressed the proper questions at all, then the application will no doubt fail. However, in such cases it would almost certainly fail on the discretionary balance and it would not be necessary consider the taint of an unlawful decision in isolation.
32. The authority relied upon on behalf of the defendants in support of the proposition that the Court may "non-suit" an applicant for section 187B relief where the decision to seek relief was flawed on public law grounds is a decision of Carnwath J R v, Basildon DC ex p.Clarke [1996] J.P.L. 866. In that case, the Judge was considering whether a County Court Judge was entitled to refuse to adjourn proceedings under section 187B to allow an application for judicial review of the decision to bring them to be heard. Carnwath J, unsurprisingly, held that the Judge was entitled to do this. He said

"If something had gone seriously wrong with the procedure whether in the initiation of the injunction proceedings or in any other way, it was difficult to see why the county court judge could not properly take it into account in the exercise of his discretion in the exercise of his discretion to grant or refuse the injunction."

33. It is thus apparent that the authority cited in support of the proposition that the court should refuse to hear the application on its merits where the decision to bring it was procedurally flawed, is in fact against that proposition. Carnwath J did not say that the court should refuse to hear such claims, merely that the procedural flaws should be taken into account in the discretionary balance. The passage cited above from Porter gives further guidance on how they should be weighed in that balance. I therefore reject the submission that the court should "non-suit" the local planning authority and shall address the defendants' submissions on unlawfulness in order to assess their weight as discretionary considerations. As I do so it will become apparent that even if I accepted that court should "non-suit" a local planning authority where something had gone "seriously wrong with the procedure" I would decline to find anything sufficiently wrong with the procedure to justify such a course in this case.
34. The procedural flaws suggested by the defendants are identified at paragraph 8(i) above. I shall deal with them in the order in which they there appear.
35. The local planning authority did not prosecute the defendants for breach of the enforcement notice as it could have done. This is relevant because Simon Brown LJ in Porter at paragraph 38 said:

"If conventional enforcement measures have failed over a prolonged period of time to remedy the breach, then the court would obviously be readier to use its own, more coercive powers. Conversely, however, the court might well be reluctant to use its powers in a case where enforcement action had never been taken."

36. This obviously does not mean that it is a procedural bar to proceedings under section 187B that no prosecution has occurred. Section 187B itself makes that clear by enabling the local planning authority to proceed whether it has exercised or is "proposing to exercise any of their other powers under this Part".
37. The Report to the committee of 31^st January 2007 listed 4 options as follows:-

"1. Take no action – pending the results of the GTDPD [Gypsy and Traveller Development Plan Document], i.e. in view of the Traveller's personal circumstances.

2. Invite a temporary planning application – pending the results of the GTDPD.

3. Take legal action – by way of injunction to encourage the occupants to relocate. There is always the risk the Court may not agree with this approach although they have been supportive up to now.

4. Land clearance – Take action under section 178 of the TCPA to clear the land."

38. After considering a report from counsel, which I have not seen, which evaluated "in detail" options 1, 3, and 4 the Report to committee went on to deal with option 2, concluding in relation to that as follows:-

"In this case, after very careful consideration of all the relevant issues, the Council decided that this approach was inappropriate. Indeed the same conclusion was reached by the Secretary of State in all the relevant cases in this area, and in respect of this case, as set out above. In view of the real ongoing harm that the use of the site causes to the immediate rural landscape and the village of Cottenham, and the need to deal with this harm as soon as possible, there is a pressing need to resolve the matter."

39. Under the heading "Implications" the Report then sets out the need to have in mind the financial, legal, staffing, risk management and equal opportunities considerations. It also records the results of internal and external consultations about the options. Cottenham Parish Council had made representations in favour of any action taken by the Claimant "to comply with the Inspector's decision". They pointed out the need to be consistent in dealing with unlawful development at Smithy Fen (a reference to the decision of Silber J in relation to Pine View which had resulted in the clearance of that land). They pointed out the need to limit the size of the development at Smithy Fen and to "pursue all existing enforcement notices at Smithy Fen".
40. In the section headed "Internal Consultations" the document records various views mostly in favour of Option 3 and expressing concern about the strategy for finding alternative accommodation and about the health of one of the occupants. Counsel's advice that section 187B was "the most cost-effective way forward" apparently in preference to action under section 178. The Conclusion was

"The on-going harm to the rural landscape and the village of Cottenham needs to be resolved as soon as possible. The suggestions from officers and the Parish Council are helpful and your officers will pursue these matters to see if they can help resolve the problem. In particular, it may help resolve the concerns about the health of one of the residents. However provisions need to be made in case these do not help to resolve the situation. The Council needs to instigate the necessary legal actions in parallel to these discussions. This is especially important in this case where the harm has already been happening for some time, is significant, and is ongoing."

41. The recommendations were as follows:

"1) That action be taken through the High Court to obtain injunctions under section 187B of the Town and Country Planning Act 1990;

2) That in respect of plot 12, further discussions take place with the occupier to explore his health situation, and that the results be taken into account before action against his plot is taken;

3) Refresh our search of Council-owned property (possibly revising the parameters of the earlier search to see if that helps to identify anywhere new).

4) Formally write to the County Council to ask them for their help (inviting them to share with us their search of CCC-owned land too).

5) Contact Sheila Clarke at Go-East to invite her suggestions on anything else that we have not yet considered."

42. The Report records that all relevant documents were used in preparation of the Report, including the decision of David Clarke J in South Bucks DC v. Andrew and James Smith which was a decision which turned on the personal circumstances of the occupants of an unauthorised pitch. The list also includes Circular 01/06 and the Report to Cabinet for the 12^th January 2006 on Race Equality Scheme.
43. The further Report of 18^th June 2007 shows that by that date no proceedings had in fact been issued. The matter was further considered, and the medical condition of the occupier of plot 12 is set out. The other plots were said to be "currently vacant and unoccupied". This was said to prevent Officers from investigating the personal circumstances of the occupiers, as it would if it were so. I am told, and I accept, that this was a misunderstanding. The plots were occupied at all times although the occupants may have been temporarily absent at times which led the council to believe that the plots had been vacated when this was not the case. Counsel had advised on 24^th May 2007 that it would be expedient to proceed with an urgent application for an injunction in relation to plots 1-11 but that proceedings should not be issued in respect of plot 12 in view of the health situation of the occupants. No further decision to take proceedings was required and the officers hoped to be able to report to the meeting of 18^th June that enforcement action was under way. The only decision which was sought was a decision not to proceed against the occupiers of plot 12. These proceedings were then issued, as I record above. Matters were further reviewed by the local planning authority on 3^rd August 2007 after the grant of interim relief by Judge Reddihough on 31^st July. This Report noted

"Since the last report to members vans and caravans have moved onto Plots 2 and 6 have become occupied by two families as follows:

• Plot 2 has 1 caravan and 1 static on site occupied by Margaret O'Brien, Ann Sheridan and Hannie Flynn with 3 children.

• Plot 6 has 1 caravan and 1 static and is occupied by Nellie Quilligan with 3 children.

The Council's Travellers Officer had a meeting with Margaret O'Brien and Nellie Quilligan on 17^th July 2007 when he completed up to date needs audits copies of which are attached for members' attention."

44. Options were set out in the August Report which required members to revisit their decision to take action under section 178 of the Town and Country Planning Act 1990 [this is an obvious error, it should read 187B] in respect of plots 2 and 6 only, due to the change on site and having regard to personal circumstances, the prospects of temporary planning permission, and the race equality duty imposed by the Race Equality Act 1976.
45. I have set out the Reports in detail because it is necessary to consider them in the light of the various submissions made. It is true that there is no express reference to prosecution for breach of the enforcement notice and the only options considered are action under 187B, action under 178, or no action to enforce at all. This is a matter which I will bear in mind in exercising my discretion whether to grant this injunction or not. I find that it has little weight as a consideration against granting the injunction. This is because

i) The local planning authority did consider using an enforcement notice and in fact issued one as long ago as February 2005. Whether or not they ever left the sites in the 2007, all these defendants are now

occupying plots in breach of the notice and have been doing so for not less than 6 months. It has not worked.

ii) The defendants have failed to obey the enforcement notice knowing quite well that they were thereby committing a criminal offence. It is accepted that a prosecution, if brought, would inevitably result in a conviction and fine. This threat has not induced compliance with the law and I see no reason at all to believe that following up the threat with an actual prosecution would have produced any different effect. It would merely have resulted in a fine, tailored to the means of the defendants, which they might have paid or not.

iii) Their conduct has demonstrated that these defendants are not troubled by the possibility of prosecution and such a course of conduct would merely have caused delay in bringing the unlawful occupation of Victoria View to an end and would also have caused expense to the defendants for no particular benefit. Therefore, if they had specifically considered prosecution the local planning authority would probably have concluded that it was not a satisfactory method of achieving their aims in this case. Had they done so, they would have acted reasonably in so doing.

46. The failure to make thorough welfare enquiries before taking action in breach of the Guidance referred to at paragraph 8(i)(b) above. It is clear from the Reports of January, June and August 2007 that the local planning authority did take into account the personal circumstances of those in occupation of the plots in deciding what enforcement action to take. This was not mere lip-service, as is shown by the decision not to proceed against the occupier of plot 12 and by the decision to review the position in relation to plots 2 and 6 after a meeting with their occupants on 17^th July 2007. Thorough consideration had been given to the individual personal circumstances of the occupants by the Inspector and the First Secretary of State in 2005 and there was no known change in those circumstances. The Reports do deal with alternative accommodation and the council's duties to the homeless and it is plain that these considerations were in fact taken into account.
47. There is a difficulty for the local planning authority in that the type of full enquiries recorded by Silber J has having been made in the case of Flynn (see his paragraph 29) were not made in this case. This was no doubt in part due to the confusion as to whether the plots were occupied at all between March and June 2007. Mr. Jones in his witness statement of July 2007 says at paragraph 21 that the land was then unoccupied and had been since at least March 2007, although he says

"The land is still hard surfaced (individual plots and the access road) and caravans, mobile homes and outbuildings remain stationed on the land"

48. When occupants were detected, personal needs audits were taken and were considered in a review of the decision to proceed against the occupants of plots 2 and 6. No such steps occurred in respect of plots 1, 8 and 11. I consider that a local planning authority ought to take all reasonable steps to make welfare enquiries before embarking on a course of action which is intended to deprive people of their homes. This obligation appears from the Guidance on Managing Unauthorised Camping at paragraph 5.9, and on paragraphs 9-12 of Circular No 18/94/1994: Gypsy Sites Policy and Unauthorised Camping, and paragraph 2.19 of Circular 10/97: Enforcing planning control: legislative provisions and procedural requirements. This requires that

"The personal circumstances, including such matters as health, housing needs and welfare, of persons suspected of acting in breach of planning control must be taken into account when deciding whether to take enforcement action".

A failure to make such enquiries would arise as a relevant discretionary consideration even if it were not required by this Guidance. In particular, if it gave rise to some prejudice which could not be rectified within the proceedings, or if it showed an arbitrary or excessive use of power then these considerations would militate against the grant of an injunction. I find that the local planning authority did not make full enquiries into these matters before bringing these proceedings, but I find that this was not because they were negligent or acting in bad faith. They understood, wrongly but reasonably, that the plots were empty. They addressed this matter afresh when they discovered that plots 2 and 6 were occupied in August 2007, and the failure to acquire up to date information carries less weight in the case of the occupants of those plots for those reasons.

49. The procedure adopted by the court under CPR Part 8 is one which allows the court to consider any evidence which any party wishes to file. Therefore, the defendants to an application of this kind have it in their power to remedy any failure by the local planning authority to enquire into their personal circumstances. All the defendants have filed evidence in this case. The principal purpose of that evidence is to deal with their personal circumstances in full. I have allowed late served evidence wherever I have been asked to do so and by this means have ensured that the court has the fullest possible information about their personal circumstances.
50. Further, the issue was fully considered by the Inspector in his Report of August 2005 and there have been no major changes in personal circumstances since then. The information as to personal circumstances was therefore incomplete at the time when the local planning authority decided to bring these proceedings in January in that no updated information was available to the authority as to any change of circumstances which might have occurred between August 2005 and January 2007. The failure to take active steps to solicit an up to date account of the personal circumstances of the defendants was an error and a departure from the practice required by the Guidance. However, it has not adversely affected the ability of the court to weigh the defendant's personal circumstances in the balance when arriving at a decision. In these circumstances I attach less weight to it than it would deserve in some other situations.
51. The Failure to Consider Using the Power under section 24 of the Caravan Sites and Control of Development Act 1960. It is submitted that there is a duty on a public authority which has a power vested in it to consider using that power when circumstances arise where it may be material. There is no evidence that the local planning authority has considered exercising that power, and it has therefore failed to consider all the options. It is true that the local authority does have power to provide sites within its area under the 1960 Act and it is also true that the local authority has not given any specific consideration to the use of this power in the context of this application. However, it is also true that the local authority has policies in place for discharging its responsibilities to gypsies and travellers and that these policies are presently under revision. Those policies have not been the subject of any successful challenge. Any exercise of the section 24 power would arise in the context of the development and implementation of these policies, and their application in the planning process. I do not accept that there is any duty to consider that power specifically in the context of a proposed application under section 187B to enforce a planning decision which was made lawfully by the First Secretary of State and upheld on appeal. If I am wrong about this, it is obvious from their conclusions in relation to Smithy Fen to date that the local planning authority would refuse to exercise such a power and they would be acting reasonably in doing so.
52. No race impact assessment and a breach of section 71 of the Race Relations Act 1976. The Act creates a duty on the local planning authority in carrying out its functions to have regard to three needs, namely (1) eliminating unlawful racial discrimination, (2) promoting equality of opportunity, and (3) promoting good relations between persons of different racial groups. The defendants point also to paragraphs 71 and 72 of Circular 01/06. Further reliance in this regard is placed on Annex D of the Guidance on Managing Unauthorised Camping which provides:

"Since eviction of unauthorised campers and enforcement against unauthorised development are likely to have a large effect on the public, and in particular on the Gypsy/Traveller population, they are functions highly relevant to the RRA general duty and should be prioritised in Race Equality Schemes. When evicting and enforcing, authorities need to ensure that they act in a way which meets the three elements of the general duty and so as to have the minimum negative impact on the Gypsies and Travellers involved."

53. It is suggested that the local planning authority paid lip service only to the three-part statutory duty. It is also submitted that a race impact assessment was required by The Code of Practice on the Duty to Promote Race Equality published by the CRE under section 71(C) of the Act.
54. LIP SERVICE:

i) The local planning authority considered reports, as I have said, dated 31^st January and 3^rd August. Each of these Reports, unlike that of 18^th June 2007, contained a Table headed "Implications" which contained these words under the category "Equal Opportunities":-

"In line with statutory duties under the Race Relations Acts and Disability Discrimination Acts, this Council's operates both a Race Equality Scheme and a Disability Equality Scheme (the latter considered by the Council on 23^rd November 2006). Travellers represent the biggest ethnic minority in the district (1% of the population) and suffer disproportionately high levels of ill health and disability.

a) The Council is committed to treating everyone fairly and justly, whatever their race or background.

b) The Scheme gives priority to actions relating to Travellers as the biggest ethnic minority in the district (around 1.0% of the district's population).

c) Planning is identified as being amongst the services most relevant to promoting race equality."

ii) The fact that the wording is the same in the January and the August Reports provokes a suspicion that the passage is simply a mantra being recited, rather than anything which is followed through and applied in the decision making process. However, it is fair to observe that the considerations relevant to the three-part statutory duty under section 71 had not materially changed between the two Reports. In both Reports there is a second table which contains the following:-

"The need to address Gypsy and Traveller issues …..is also reflected in the Council's policy on Traveller issues, agreed in July 2004 which includes a commitment to:

"apply planning policy fairly and firmly in relation to Traveller sites" and "uphold the rights of all local residents and Travellers to live peacefully and safely, with mutual respect for the rights of others."

iii) I have noted above that the Report to Cabinet for the 12^th January 2006 on Race Equality Scheme was recited at the end of the January Report as a document which had been used in its preparation. That document has been produced, as has the Race Equality Scheme 2005-2008 Updated July 2006: Agreed by Full Council. These documents make frequent reference to Traveller issues and record, for example, the introduction of new strategies to address them, namely the Community Strategy, the Housing Strategy, the Homelessness Strategy, and Community Safety Strategy: see Appendix B to the latter document.

iv) The local planning authority in 2007 was considering what action to take to enforce the planning decision which had been upheld in the High Court in December 2006. It had been acknowledged throughout that process that if the defendants failed in it, there was a significant chance that they would have to leave the site. This was acknowledged expressly, but, of course, it was the whole point of the planning application. This process had involved a consideration of the race equality issues. I have recorded above that the Inspector and the First Secretary of State had differed on the ethnic classification of the some of the defendants, and that the First Secretary of State has resolved that issue in their favour. The result of this was that he considered local planning policy HG23 was the most relevant and that

"..the countryside policies in the local plan provide a general context but one which could be outweighed if there is compliance with the more specific gypsy policy criteria set out in Policy HG23 in the local plan": see paragraph 17 of the Decision Letter.

v) Thus, the defendants' applications for planning permission had been judged and rejected under a Policy which took account of their ethnic status, and gave them an advantage over applicants who lacked that ethnic status. It was reasonable for the local planning authority to take this reasoning into account when deciding whether to enforce the decision or not in January 2007.

vi) The challenge to the decision before Judge Gilbart QC had not questioned the planning decision on grounds based on section 71 of the 1976 Act. I find it difficult to envisage any relevant consideration of this kind which ought to have been considered by the local planning authority considering the application for section 187B relief which was not equally relevant to the planning process. No such different consideration has been suggested. Therefore, the local planning authority in January 2007 were not starting from a blank sheet of paper. They were aware that a planning decision had been made by them, that it had been scrutinised by an Inspector and upheld by the First Secretary of State. They knew also that the defendants, with the assistance of solicitors and counsel, had made such challenges to that decision under section 288 as they had felt they could reasonably argue. Those challenges had failed. In these circumstances it seems to me that it is unfair to describe their treatment of the race equality issues as "lip service". They were reminded of the relevant policies by the officers in the Reports in the terms I have set out. They were already aware that the ethnicity of the defendants was at the heart of their applications and had been weighed in the balance in the application of policy HG23. In those circumstances, I consider that the way in which the race equality issue was dealt with by the local planning authority was not mere "lip service". It is true that there is no reasoning to show how the Race Equality Scheme was applied to the facts of this case which is a minor matter in view of what I have just said.

55. A RACE IMPACT ASSESSMENT

i) This submission is based on the Code of Practice on the Duty to Promote Race Equality which provides at paragraph 3.16:

"3.16 To assess the effects of a policy, or the way a function is being carried out, public authorities could ask themselves the following questions.

a. Could the policy or the way the function is carried out have an adverse impact on equality of opportunity for some racial groups? In other words, does it put some racial groups at a disadvantage?

b. Could the policy or the way the function is carried out have an adverse impact on relations between different racial groups?

c. Is the adverse impact, if any, unavoidable? Could it be considered to be unlawful racial discrimination? Can it be justified by the aims and importance of the policy or function? Are there other ways in which the authority's aims can be achieved without causing an adverse impact on some racial groups?

d. Could the adverse impact be reduced by taking particular measures?

e. Is further research or consultation necessary? Would this research be proportionate to the importance of the policy or function? Is it likely to lead to a different outcome?

"3.17 If the assessment suggests that the policy, or the way the function is carried out, should be modified, the authority should do this to meet the general duty."

ii) The Glossary in the Code provides:-

"assessing impact

a systematic way of finding out whether a policy (or proposed policy) affects different racial groups differently. This may include obtaining and analysing data, and consulting people, including staff, on the policy."

iii) The considerations identified in the Code which are to be applied when making an impact assessment are more apt to the assessment of a policy or the carrying out of a function than to a particular enforcement decision in respect of 11 plots occupied by particular people. These matters were relevant to the development of Policy HG23 and the strategies referred to in the Race Equality Scheme 2005-2008 Updated July 2006: Agreed by Full Council. It was not contended before Judge Gilbart QC or the First Secretary of State that Policy HG23 should not be applied because of the lack of a race impact assessment. If the submission has merit, it would be at least as potent in relation to the matters before them as it is in relation to the decision of the local planning authority to proceed under section 187B.

iv) Given the lack of any attack on Policy HG23 on this ground during the planning process, I consider that it was not obligatory for the local planning authority to carry out a separate race impact assessment in January 2007, or June 2007, when deciding to enforce the policy by seeking an injunction. They were entitled to assume that the defendants were content that the policy which had been applied was not rendered unlawful by virtue of any breach of section 71 of the 1976 Act or any failure to assess the race impact of the policy and its application.

v) The decision required by statute was that the restraint by injunction was "necessary or expedient". This phrase emphasises that the wider considerations of fairness are to be assessed by the planning authority when determining its policy and when deciding any application, and by the Court when determining any application which the local planning authority may decide to bring. The Court will only grant such relief as is "appropriate", or (which means the same thing) "just and convenient". Given the protection accorded to defendants in the process which precedes any application under section 187B, and the further protection they enjoy when the Court decides the outcome of any such application, it is not a requirement of the 1976 Act or the Code of Practice that a race impact assessment be carried out each time a local planning authority decides whether or not to seek an injunction.

vi) I do bear in mind as a factor to be weighed in the discretionary balance that no specific consideration to race issues was given by the local planning authority when deciding to take these proceedings, as I have recorded in paragraph 55(vi) above. They reminded themselves of the relevant policies, as set out above, but did not consider in terms how those policies applied to the decision in hand. I also bear in mind the fact that it has not been suggested in these proceedings that they overlooked any material which would have been relevant to the decision in any way which was helpful to the defendants. The submission is that such an assessment was a form of procedural requirement, but not that the local planning authority has overlooked any particular factor by reason of the suggested failure. In all these circumstances this submission produces a consideration of limited weight in favour of the defendants.

56. The failure to consider proportionality. It is apparent from my summary of this submission at paragraph 8(i)(e) above that it is repetition. It is true that the three Reports do not use the word "proportionality", but they do consider all relevant matters, save where I have already found that they do not. In so far as they do not, I shall take into account that failure and ensure that it is remedied by this Court. This Court will therefore consider the personal circumstances of the defendants with particular care because I have found that the local planning authority did not do so in 2007 when deciding to take these proceedings. I shall also consider the availability of alternative accommodation on the evidence before me as an important factor in deciding the outcome of the application. I reject the submission that the lack of the use of the word "proportionality" in the three Reports requires this Court to dismiss the application without consideration of its merits and the submission that it constitutes an important reason to reject the application on the merits.
57. Failure to Consider the Impact on Third Parties. It is submitted that removing the defendants from Victoria View will cause them to live in unauthorised encampments "on the road". This, it is said, will cause far greater problems to those living in the vicinity of those encampments than results from the unauthorised development of the Victoria View sites. It is said that the Police would far prefer to have the defendants living at Victoria View than on unauthorised encampments with the potential public order and public health problems which they cause. It is true that the Reports do not specifically mention this consideration. However, this is really another facet of the questions which certainly were addressed, or which are being fully addressed by me. The Inspector and the First Secretary of State considered alternative accommodation, and it is clear from the extracts from the three Reports I have set out above that this question was also considered at the stage of deciding to seek section 187B relief. It is obviously undesirable for the defendants to be driven to live "on the road" if any alternative exists. That factor affects their interests as well as those of third parties. The interests of third parties generally are at the heart of any system of planning control which exists in order to restrict a landowner's freedom to develop his or her own land in the wider public interest. The absence of any specific consideration of the interests of those who may live near places where the defendants may choose to camp unlawfully, and of the preferences of the Police, does not in my judgment vitiate the decision of the local planning authority so as to require its application to be dismissed. At each stage of the proceedings it has been accepted that life "on the road" is not desirable and that permanent pitches should be found if possible: see paragraphs 34 and 36 of the Decision Letter. It is not clear to me that any specific mention of notional third parties who may be affected by unlawful conduct by the defendants in the future would add anything to this principle.
58. The submissions I have dealt with above are relevant in the exercise of my discretion and I shall take them into account, in the way I have indicated, in dealing with the proportionality of granting the relief sought.

PROPORTIONALITY

59. The respect to be accorded to the planning process. Hitherto I have been considering the planning process in terms of the role it played in the decision of the local planning authority to bring these proceedings. I have referred to it in some detail already in that context and in the factual account of it I give above. I shall therefore simply set out my conclusions at this stage.
60. Simon Brown LJ in Porter at paragraph 38 in the Court of Appeal said

"Previous planning decisions will always be relevant; how relevant, however, will inevitably depend on a variety of matters, including not least how recent they are, the extent to which considerations of hardship and availability of alternative sites were taken into account, the strength of the conclusions reached on land use and environmental issues, and whether the defendant had and properly took the opportunity to make his case for at least a temporary personal planning permission.

40. Whilst it is not for the Court to question the correctness of the existing planning status of the land, the court in deciding whether or not to grant an injunction (and, if so, whether and for how long to suspend it) is bound to come to some broad view as to the degree of environmental damage resulting from the breach and the urgency or otherwise of bringing it to an end. In this regard the court need not shut its mind to the possibility of the planning authority itself coming to a different planning judgment in the case."

61. The planning decision in the present case is recent, at least in that it was decided less than 2 years ago so that section 70A of the Act allows the local planning authority to refuse to determine any new application which is substantially the same as it. The challenge to it under section 288 was decided less than 12 months ago. Within the same time period a very similar planning decision has been taken by the local planning authority and enforced in respect of adjoining land. These are important facts which suggest that the decision is entitled to considerable respect from the court.
62. Considerations of hardship and the availability of alternative sites were before the Inspector and the First Secretary of State. The High Court rejected a challenge to that decision based substantially on a suggested failure in this regard. I consider that these issues were taken fully and properly into account in the Report of the Inspector, the Decision Letter, and the judgment of Judge Gilbart QC. This was a fair, extensive and careful planning process.
63. The conclusion of the First Secretary of State on planning harm was strong and clear. The land at Smithy Fen has been the subject of many legal battles and there is plainly a valid decision that the gap between the two areas of authorised pitches should not be further reduced, and that there should be no major new grant of planning consents at this site. I reject the suggestion that the acceptance by Mr. Koch in his latest witness statement that planning applications would probably be granted in respect of Plots 4 and 5 Pine Lane undermines this general proposition. These two plots form a gap in a line of authorised plots running along the south western border of the site at Smithy Fen. For part of its length it borders the south western boundary of plots 1-11 Victoria View. It does not follow from the willingness of the local planning authority to contemplate the filling in of that gap, that they would be willing to grant planning consents on any other part of the land. Their decision in respect of Pine View (injunction granted by Silber J and land subsequently cleared) strongly suggests that this is not so. With the exception of those two plots only, the position has been reached that the local planning authority, upheld on appeals, has decided that the site at Smithy Fen is large enough. In the words of the First Secretary of State:-

"The Secretary of State agrees with the Inspector at IR 13.33 that the countryside at Smithy Fen is generally open and flat, with wide views and little natural screening. He also agrees that it is inherently difficult for such a sensitive fenland landscape to assimilate Gypsy caravan development without causing harm to the rural character and appearance of the locality. He agrees that such harm has already been caused by the existing lawful gypsy caravan development at Smithy Fen (IR 13.33). He considers that the fact that lawful caravan development is present in this locality should carry little weight, since that existing development already causes harm to the open fenland landscape and it would be undesirable for further development of like kind to be added to it. The Secretary of State agrees that any further addition of plots would detract unacceptably, in terms of rural appearance and character, from the fenland landscape at Smithy Fen (IR 13.34)."

64. The defendants had the opportunity to appear before the Inspector, and were also represented before Judge Gilbart QC. As I have stated above, their applications were treated as being applications for personal planning permissions and consideration was given to granting temporary planning permissions. The First Secretary of State considered temporary planning consents at paragraph 35 by reference to Circular 11/95 and concluded at paragraph 37 (see paragraph 8 above) that temporary planning permissions should not be granted because of the "serious harm to the countryside" which would be caused.
65. I have said that the "defendants" had the opportunities to advance their case as set out above. Those defendants who did not make any planning applications in relation to the land were not formal parties to the proceedings. However, the whole of the land was considered by the First Secretary of State and he determined applications which did raise all relevant issues.
66. My broad view of the planning merits for the purposes of paragraph 40 of Simon Brown LJ's judgment set out above is that the degree of environmental harm is considerable. It cannot be said that it is "urgent" that it be brought to an end in that there is no imminent peril to life or health caused by it, but the defendants have been occupying these plots since 2003 without planning permission. The January Report to the Committee describes the need to enforce planning control as "pressing", see the extracts set out at paragraphs 38 and 40 above. The local planning authority was entitled to take this view. The environmental harm has been occurring throughout that period. Respect for the law and the planning process in particular plainly requires a resolution to the problem. I do not shut my mind to the possibility of the local planning authority or the Secretary of State on appeal taking a different view of some further application, but I regard that possibility as remote for the reasons I have given and which appear in the next paragraph where I address the possibility that I may, in law, not be entitled to address the broad planning merits. To the extent that I am, I conclude that they militate in favour of the grant of an injunction.
67. Is the Planning Position "clear and apparently final" in the sense used by Lord Scott in Porter at paragraph 100? This is slightly different way of approaching the issue of respect for the planning decision from that formulated by Simon Brown LJ. If the planning process is clear and apparently final, said Lord Scott,

"the court would, in my opinion, have no alternative but to consider the injunction application without regard to the merits of the planning decisions."

68. No planning decision is ever final, in the sense that it is always open to the owner of land to submit a new application, subject to the restriction under section 70A of the Act. Policies may change and applications which were once rejected might in a new climate be acceptable. Except for the "real prospect issue", as I have called it, it would be obvious that the planning position is both clear and apparently final. The submission is that the climate has fundamentally changed in favour of the defendants since 2005 which means that any new application would have a real prospect of success and thus the planning position cannot be called "final". This means both that the court can and should consider the planning merits by taking the "broad view" described by Simon Brown LJ and that there is a new discretionary factor in support of the applications for personal temporary planning permissions. I shall deal with both these concepts together.
69. The Development Plan Document published in October 2006 is a harbinger of better prospects for applicants for Gypsy and Traveller pitches, see paragraph 4.71 in particular. The context of this document is explained in detail by Alison Heine, Planning Consultant retained on behalf of the defendants, whose evidence is to the effect that the prospects of success for a new application either now or in the near future are much better than they were in December 2005. The Council's document is entitled "Issues and Options Report 1: General Approach. Public Consultation". It is obviously not, therefore, the final version. I have been told something by counsel for the local planning authority about the progress of the new approach required by Circular 01/06 in the Claimant's district, but I am not able to act on that, because it is not evidence. There is some further information contained in a witness statement from Mr. John Koch dated 28^th November 2007, and made further to a direction given by me. He indicates that there is a housing strategy (paragraph 6), and says that the local planning authority has not yet completed the process of the Gypsy and Traveller Development Plan Document and it is not therefore known how many new pitches will be required for allocation at the end of that process (paragraph 31). It is not known either precisely when the process will be completed, or whether the need in the area will be met by further pitches being available within the area covered by the Claimant or in adjoining districts.
70. Circular 01/06 and the new approach it requires certainly improves the prospects of success for gypsies and travellers in obtaining permanent pitches. The policy and its detailed application still needs to be worked out, and it is in its detailed application that it will affect these defendants. However, nothing in that Circular suggests that the very clear and determined approach which has been taken to the undeveloped areas of Smithy Fen is at all likely to change. The proper approach to the Circular and the other documents identified by Alison Heine in her Report at paragraph 2.3 of her report is that there is a likelihood that further gypsy sites suitable for the defendants will become available either in the district for which the Claimant is the local planning authority or in other districts nearby. This likelihood increases their prospects of finding alternative accommodation of this kind in the medium term. It may involve decisions by the local planning authorities for the relevant districts, appeals, and challenges in the Courts and the process may become very protracted. This approach may favour the grant of a temporary planning permission at Victoria View designed to lapse once the new availability becomes real. I conclude, despite the evidence of Alison Heine, that it is not sufficiently possible to say when or where any such new pitches may become available to change the balance struck by the First Secretary of State.
71. In reaching this conclusion, I have had regard to the differences between the Guidance applied by the Secretary of State, Circular 11/95 The Use of Conditions in Planning Permission, and paragraphs 45 and 46 in Circular 01/06. The principal difference is that under the new document, where there is unmet need but no available alternative gypsy and traveller site provision in the area, and where there is a reasonable expectation that new sites are likely to become available at the end of a period, local planning authorities are expected to give substantial weight to the unmet need in considering whether a temporary planning permission is justified. Circular 11/95 is not abrogated, and the effect of the new Guidance is to require "substantial weight" to be given to any unmet need which has been found. In the present case, the First Secretary of State found, at his paragraph 35, that there was "insufficient certainty that the Council would identify sites for the applicants [within 3 years]" to justify temporary planning permission being granted. He took into account the "serious harm to the countryside". These conclusions remain sound as I have explained at paragraph 66 above. It seems to me that it is clear that the First Secretary of State did give substantial weight to the unmet "general need", as he describes it at paragraph 34. He was, however, not satisfied that the local planning authority would be able to provide sites within 3 years (of December 2005). I am not satisfied now that the local authority will be able to provide sites for these defendants within any predictable period of time and thus any temporary planning permission would either be open ended or would risk being a postponement of the day of eviction. This would prolong the serious harm to the countryside and would not provide any final answer to the defendants' difficulties. They can be assisted in the short term, to a limited extent, by a suspension of the operation of an injunction.
72. The Flagrancy of the Breach of Planning Control. Simon Brown LJ in Porter at paragraph 38 of his judgment in the Court of Appeal said that this question "may well prove critical". I have set out the history concerning the enforcement notice and the effect of the failure to prosecute anyone for a breach of it above. I shall assume that the defendants have not occupied the sites in breach of an enforcement notice for more than 6 months as at today's date. This is a favourable assumption to them (perhaps excessively so in the case of Bridget Gammell). It is, however, clear from the submissions made to me that they intend to remain there until an injunction is granted. This is a flagrant breach of planning control, but I do not regard it, on the facts of this case as "crucial" in the sense that I do not think it is determinative on its own. It is one factor which must be given some weight. It is not only the criminality which must be brought to an end, but also the prolonged serious harm to the countryside which has been occurring since 2003.
73. Conclusion on the Planning Process.

i) The Planning Process in relation to this site is to be regarded as clear and apparently final in that there is no new planning application in being and the existing planning process is complete.

ii) I should, therefore, proceed to consider personal circumstances and hardship, following the approach of Lord Scott in Porter at paragraph 101 to ascertain whether they justify refusing the grant of an injunction.

iii) If I am entitled to consider the broad planning merits, these militate in favour of the grant of an injunction subject to consideration of hardship and personal circumstances.

iv) The conduct of the defendants in occupying the sites in breach of an enforcement notice is not so flagrant that it is "crucial" and I shall weigh their personal circumstances with that in mind. It is, however, an important factor which militates in favour of the grant of an injunction.

74. The Personal Circumstances of the Defendants. I have already observed that none of these defendants claims a long family connection with this land or district. This is an important factor in the present circumstances, as is clear from several previous decisions. It weakens their resistance to the grant of an injunction. I shall now summarise their evidence in other respects.

i) Bridget Gammell. This defendant has been the subject of evidence by Mr. Koch in his recently served witness statement who alleges in reliance on a newspaper article that she is also an applicant for planning permission in respect of another site in another area. It also alleges that she has a house in Wolverhampton. These allegations were made so late in the day that she had no opportunity to deal with them and I shall not hold them against her in any way. I record their existence in this judgment because if, on investigation, they turn out to be true, they mean that her witness statement in the present case is misleading. If she is a party to any other legal proceedings where her evidence is of importance, then the truth or otherwise of the allegations can no doubt be investigated if relevant. She says she owns Plot 1 Victoria View and that she lives there with her three children as a single mother. When her father's health deteriorated in 2007 they could not cope on the site, so she moved to stay with her sister who has a house in Wolverhampton so that they could care for him. He died in August 2007 and she says that they intended to move back to the plot after his funeral. This suggests that she was not living at the plot between March and August 2007. She says that she cannot continue to live in the house now that her father has died and that she cannot continue living away from her own community. Plot 1 is at least partly within the Registered Title numbered CB189046 whose registered proprietor is Danny O'Brien who acquired it on 20^th July 2005 at a cost of £22,000. This defendant has never been the registered proprietor of this land. She does not say in her witness statement how this has come about, nor does she explain the basis on which she asserts ownership. She says that she will live on the road if she is forced to move away from Victoria View because she finds housing alien and unsuitable.

She also says that she cannot tow her caravan and does not know what she would do if forced to leave Victoria View. Her statement makes no attempt to reconcile these different propositions. She suffers from arthritis and depression. She acknowledges in paragraph 10 of her witness statement that the continuity of her children's education was affected when they moved to Wolverhampton and they temporarily moved schools during that time. Her son Roger has special needs.

a) She has not given me a clear picture of her plans if she is forced to leave Victoria View. When serious family problems recently required her to do so, she did live in housing for a long period of time. She accepted the disruption to her children's education at that time. She says that she could not do this again, but would live on the road even though she cannot tow her caravan. This is not persuasive evidence.

b) I am not persuaded that she in fact owns Plot 1, Victoria View. She has not told me how she would set about defeating the claim to ownership of the registered proprietor.

c) I do not find her family's personal difficulties in respect of health to be unusual or severe.

ii) Margaret O'Brien. This defendant is the sister of Nellie Quilligan and lives on Plot 2 Victoria View, which she says she owns. She shares the Plot with her sister Anne Sheridan and Aunt Hannie Flynn, as well as with her three young children. One of the children has health problems which are not, the scale of such things, severe. The children are being educated locally. She says in a statement dated August 2007 that she moved on to the site about three years before, having also been evicted from a site in Hemel Hempstead. She later says that she moved on to the site in 2003 after it was purchased. She says that her brother James bought the plot for her. As I understand the Title Plan to Registered Title number CB189047, at least part of Plot 2 is within that title. It was acquired by Daniel Flynn for £10,000 on 2^nd November 2004, and no-one called James has ever been the registered proprietor of that land. It therefore appears to have been sold by its first proprietor, Ann Upton, to Daniel Flynn while this defendant was living on it. She has not sought to explain this evidence at all, despite the fact that the Registry plans were put in evidence by Mr. Jones in his July 2007 affidavit. She says that she put her name on the housing list 3 years ago, but has heard nothing since. She says that all the gypsy caravan sites are full and she will have nowhere else to go if she is evicted. She lives with her sister Anne and near her other sister Nellie Quilligan and they have a strong preference to remain together. Anne has some health problems which require the use of a washing machine and which include depression. Hannie, who has been there for 18 months, is very old and suffers from pains in her legs and back. She needs constant care. Neither Anne nor Hannie has anywhere else to go. She raises the very real difficulties that a life on the road will pose for the education of her children and for access to health services. They do not know how they could live on the road because it would be difficult to move their caravans. I approach her case on the basis that

a) I am not persuaded that she owns the land. She proceeds on the basis of a bare assertion which is contradicted by the Registry plan. She has not sought to address that difficulty in her written evidence.

b) It would be convenient for her and her children to remain where they are for educational and health reasons. The difficulties they face are important, but not insuperable. Hannie Flynn, her aunt has far more substantial difficulties, and Anne Sheridan also has relevant health problems.

c) She has a strong preference for living with or near her sisters.

d) If she were forced to leave Smithy Fen, she would pursue an application for conventional housing as she has done before. I do not think that she pursued her application with any vigour on when she made it 3 years ago, but she made it while she was living at Smithy Fen. She must have done that because she contemplated using such accommodation if her application were successful. She would do this because the difficulties in living on the road are very considerable, as she says. She would be accommodated in this way by the local Housing Authority, if no gypsy site for her could be found and subject to the assessment process required by the Court of Appeal in Leanne Codona v. Mid-Bedfordshire District Council [2004] EWCA Civ 925.

iii) Anne Sheridan. I have already referred to her circumstances above because she lives on Plot 2 with Margaret O'Brien. She does not have children but has travelled for many years with Margaret O'Brien and her children. She says that her brother bought the plot "for us". Her situation is described adequately above.

iv) Nellie Quilligan. Her witness statement says that she is a single mother who lives on Plot 6 Victoria View with her three children. Her sister Margaret O'Brien lives on Plot 2 with her children and she wishes to keep this family group together. She says she has never had a legal stopping place and moved to Smithy Fen after being evicted from Cow Roast in Hemel Hempstead about 4 years ago. She says that she has applied "for all the sites in the area" but they are all full with a two or three year waiting list. If this is true, and she had applied for a site when the First Secretary of State decided the planning application in respect of Plot 6, she might now have alternative accommodation. She does not say what has been result of her applications "for all the sites in the area" and how she is getting on up the waiting lists. She said she applied for conventional housing but was told that she would not be able to get emergency accommodation. If this is true, it is contradicted by the statement of Mr. Koch who confirms that all these applicants would be afforded priority status because of their dependent children. Her case as argued by Mr. Cottle is not that she would not be granted conventional housing if she applied for it, but that temporary accommodation with shared facilities would be so unsuitable that she would not accept it. She does not say this in paragraph 6 of the witness statement: she says she has applied for housing and been refused. She sets out the education and health reasons why she would like to stay at Smith Fen. These are substantial considerations, but are not unusual and not insuperable. They are very far from the personal hardship considerations which caused the Inspector to grant a personal planning permission to Mr. and Mrs. Brown in the decision upheld by Keith J in South Cambridgeshire District Council v. Secretary of State and Brown [2007] EWHC 2117 (Admin). She says that she "simply cannot return to living on the side of the road moving from one illegal encampment to another". She says that there is "simply nowhere else for us to go". This has been the subject of evidence from Mr. Koch which I will deal with as a separate item at the end of my individual review of the personal circumstances of the defendants. She concludes "I therefore request that this honourable court allow us to remain on our land". She does not, however, say that she owns Plot 6 and she is not its registered proprietor. She does not say by whose permission she is on the land, or what type of interest in it, if any, she claims. It is, I think, fair to approach her case on the basis that:-

a) She has no title to the land nor any other important interest in it, apart from possession.

b) It would be convenient for her and her children to remain where they are for educational and health reasons. The difficulties they face are important, but not insuperable.

c) She has a strong preference for living with or near her sister, Margaret O'Brien, and her family.

d) If she were forced to leave Smithy Fen, she would pursue an application for conventional housing as she has done before. She would do this because she simply could not return to living on the side of the road, as she says. She would be accommodated in this way by the local Housing Authority, if no gypsy site for her could be found and subject to the assessment process required by the Court of Appeal in Leanne Codona v. Mid-Bedfordshire District Council [2004] EWCA Civ 925.

v) Hannie Flynn. I have dealt with her circumstances when setting out the evidence of her niece, Margaret O'Brien. Undoubtedly her situation is difficult and she needs help from her niece. She is unable to travel and to live beside the road, and needs permanent accommodation. I consider it likely that her needs will require her to remain with her niece, whose situation I have dealt with above. If her niece is required to move, then she will move with her. Her needs will be fully considered by the housing authority and she will in due course benefit from the new policy which will increase the general availability of alternative sites.

vi) Elizabeth Sheridan. She lives on and asserts ownership of Plot 8. She is the third person whose assertion of ownership is in conflict with the registry plans. The fact that this is something of a pattern in this case undermines my confidence in the assertions of ownership still further. She lives on the Plot with her father Patrick Quilligan. He sometimes lives on an unauthorised encampment at Dale Farm in Basildon with another of his daughters. That site is also the subject of attempts by the local planning authority to clear it, and there is no security of tenure there. She also moved to Smithy Fen from Hemel Hempstead. She says she suffers from quite serious depression because she has never been able to find anywhere permanent and settled to live. She says she could not tow her caravan and does not know what she would do if she were evicted. Like others, she also says that she would live on the side of the road if she were evicted. These conflicting propositions are not reconciled in her statement. She says that she needs medical care for a fractured hand suffered in December 2006, and that she would not get it if she were forced to leave Smithy Fen. Her father has cancer and had surgery in Basildon in February 2007, and only moved back to Smithy Fen after he had attended "all his follow up appointments". His continuing medical needs would appear to suggest that he needs to remain in Basildon rather than in Cottenham. I do not know why ongoing orthopaedic care for a 12 month old fracture requires permanent residence in one location rather than another.

vii) Patrick Quilligan. His circumstances appear from the summary of his daughter's evidence above.

viii) Kathleen Sheridan. She has prepared three witness statements. She is the fourth, and last person to assert ownership of a plot which is comprised within the registered title of somebody else. Like the others, she offers no explanation of this fact. In her case, the plot she says she owns is Plot 11. She lives there with her 4 children. Her parents live nearby on 3 plots which have planning permission, namely 1-3 Setchel Drive. There are too many caravans on those plots to allow her to share them with her parents. She says that out of desperation she even contacted the council regarding housing but did not receive any response from them. She says that she did not want to live in a house, but she did not know what else to do. She says that her daughter cares for her invalid mother and that there is no-one else to care for her. She explains that her two sons are now settled at the Cottenham Primary School and that there would be educational problems if they were forced to move. She says that there are no authorised pitches for them, and that their only option would be to camp illegally by the roadside, but she also says that she could not cope with this. She also is unable to tow her caravan.

75. All these defendants (except Bridget Gammell) clearly wish to live together as a large family group. In the case of Hannie Flynn, she needs to be with members of her family because of her infirmity. This is an important preference which needs to be given considerable weight in deciding whether it is proportionate to remove them from their present homes in order to further the legitimate aim of enforcing planning control. However, it cannot be decisive. It is a preference which requires a large amount of land to be allocated to the provision of a gypsy site and which, if it prevails, will cause serious ongoing harm to the countryside. It may be that their determination to stick together, which is an important part of their culture, has caused them to refuse to consider separate sites which might allow them to live within reasonable reach of each other: I do not know. At all events, while giving this factor considerable weight, I am unable to say that it prevails against the public interest in enforcing planning control at this site and the need to enforce the criminal law. It was a factor which was fully before the First Secretary of State and which did not prevail before him, which is a matter to which I must accord respect as I have indicated above.
76. The individual personal circumstances in this case are not of sufficient power to cause me to refuse the injunction. I have hesitated particularly about Hannie Flynn because of her physical problems and need for care. However, I am satisfied that her personal interests will be served by her being with her niece. I also note that she has only been at Smith Fen for about 18 months which means that she arrived knowing that there was an enforcement notice in place (albeit that its operation was suspended by an appeal being pursued by others). Finally, if, as is said, she needs 24 hour care, then she will have additional rights to assistance from the local authority should she seek to take advantage of them. Although her problems are substantial, they are not at the same level as those of Mr. McCarthy at Plot 12 who suffers from a potentially fatal heart condition. I have recorded above that personal needs audits were carried out by the local planning authority in respect of plots 2 and 6 in August 2007, which included Hannie Flynn. The failure to make welfare enquiries is therefore a less powerful factor in her case than it is in that those who occupy other plots.
77. ALTERNATIVE ACCOMMODATION

i) I investigated this issue in the way I have described above. I received evidence from Mr. Koch in a witness statement which addressed the true availability of alternative sites in the area now. I also received evidence from Mr. McCarthy, the occupant of plot 12, that he has been searching for an alternative site for years without success. This contrasted with the evidence of the defendants in their witness statements which was very general about the nature of their efforts. The Inspector commented in 2005 that he felt that the possibility of alternative sites being available was "lightly dismissed". That impression has not been entirely dissipated by their evidence to me.

ii) I conclude from this evidence that the position is as follows:-

a) There is no local authority gypsy encampment which has any availability for these defendants. Such sites exist, but there is a waiting list and places may not become available for some time. It is at least possible that if the defendants had applied for such provision during the years gone by, it would now be available to them. They have not taken this course. The statements I have summarised suggest that in some case it has been taken, but there is insufficient detail for me to be satisfied that this is so. I also rely on the Inspector's conclusion in August 2005 that at that stage they were "lightly dismissing" alternative sites.

b) The provision of privately owned sites is less clear. There is no evidence that there is any site which is currently vacant which would accept these defendants. There are some vacant plots on Smithy Fen and I have no evidence about the attitude of their owners. I cannot assume that they are available. The solicitor for the defendants in her most recent statement confirms that she has spoken to Mr. Amos Webb and that he agrees with her account of what he has said. He has planning permission for 17 pitches on his land, but he says that this is all for members of his family. According to Mr. Koch's statement at paragraph 19, Mr. Webb has recently submitted a further application to extend the number of pitches to 30. Presumably this also is intended as accommodation for Mr. Webb's family which is clearly a very large group of people and perhaps even an expanding group of people. This gentleman is referred to by Keith J in South Cambridgeshire District Council v. Secretary of State and Brown [2007] EWHC 2117 (Admin) at paragraph 47(b). I note that Mr. Webb was prepared to swear an affidavit in those proceedings in October 2005, which he has not done in these proceedings. In it, he appeared to suggest that he particularly did not want to accommodate any residents of Sandy Park. I am not convinced on the evidence before me that Mr. Webb will in fact refuse to accommodate the defendants if they need him to do so. It appears that his land is still undeveloped and without basic facilities, as it was in 2005, and I do not know what his intentions are in relation to it. If in fact his intention was to accommodate his family, I would have expected him to install some drainage at some point in the last two years. I am also surprised that his family now need another 13 pitches, which suggests that they have grown in numbers by about 75% in two years. I cannot answer these doubts I have and no proper witness statement from Mr. Webb has been produced which deals with them. I am therefore not persuaded that this land is truly beyond the reach of the defendants, although I am equally not able to find positively that it is available to them: I simply do not know.

c) These defendants do not have the means to buy a plot for themselves, and so would need to rent one. I take the view that there is an obvious scarcity of plots, and that their search for a suitable plot in the relevant district or any adjoining district, or any other place which would be suitable for them, may take some considerable time. It would also be unlikely that they would all be able to live in one large family unit. However, it is possible that ultimately they will find locations which are within reasonable reach of each other.

d) I accept the evidence of Mr. Koch that these defendants, if they became homeless, would be treated as priority cases for housing purposes and that the housing authority would find accommodation for them. This would probably involve bricks and mortar at least as a temporary expedient.

e) Therefore, I shall approach this case on a factual basis favourable to the defendants, namely that they will not be able to find any suitable pitches for them immediately and may have to be accommodated in housing. The duration of that accommodation is uncertain. The search for permanent gypsy accommodation is likely to be difficult, but I am not persuaded that, given time, it is hopeless.

f) I think it unlikely that these defendants will in fact live "on the road" since they all say that they cannot tow their caravans. That is, apparently, not an option for any of them. If it is, then their personal circumstances must be different from the way they have chosen to present them to me in a material respect.

CONCLUSION

78. I trust that I have identified the relevant factors in the discretionary balance which I must now perform.
79. I remind myself that the domestic law relating to the application of section 187B and the decisions of the European Court of Human Rights in Buckley v. United Kingdom (1996) 23 EHRR 101, and Chapman v. United Kingdom 33 EHRR 399 show that (in the words of Lord Bingham in Porter at paragraph 37):-

"….decisions properly and fairly made by national authorities must command respect. They also make plain that any interference with a person's right to respect for her home, even if in accordance with national law, and directed to a legitimate aim, must be proportionate."

80. I do not regard the issue of ownership which I have analysed in giving an account of personal circumstances as being a decisive factor in any sense. These defendants undoubtedly occupy these plots as their homes and that engages the protection of Article 8 which the UK Court affords by applying the test of proportionality to the decision under section 187B. I have mentioned ownership because the defendants' cases might be stronger if they could demonstrate ownership of the land. It would not automatically follow that they would be, but it is possible to envisage circumstances where that might be so. I have decided to give no weight in favour of the defendants to their assertions of ownership, but the fact that they do not, apparently, own the land does not count against them. It remains their home for the purposes of Article 8.
81. I have concluded that granting the remedy sought is proportionate to the legitimate aim of the local planning authority in applying for it. This follows from what I hope is the kind of "structured and articulate" approach to a difficult exercise which Simon Brown LJ mentions at paragraph 42 of his judgment in Porter. I have sought to explain why in this case the decision of the local planning authority is entitled to considerable weight and why the personal circumstances of the defendants do not outweigh the need to enforce planning control. This has been a difficult balance to strike, because I am well aware of the potential for this decision to cause hardship. I hope that the defendants will make sensible arrangements with the assistance of the local authority to reduce that hardship and that in the fullness of time the new arrangements will come to their assistance in allowing them to resume their traditional way of life as they choose.
82. In deciding what relief to grant, I have had in mind the power of the Court to make an order which shall not come into effect immediately. It would, in my judgment, be disproportionate to require these defendants to leave their homes in 14 days. The need to enforce planning control does not permit endless extensions, but I have decided that a proper balance between the competing interests is achieved by making an order which shall come into force at noon on the day after the end of the next Easter term at Cottenham Primary School. This is not as long as the First Secretary of State allowed for the defendants to find other accommodation and schools (if necessary), but they have already had the benefit of that time and of the time which has elapsed since the dismissal of the section 288 challenge nearly 1 year ago. For the last 6 months they have been committing a criminal offence by continuing in occupation. I shall therefore allow a further period of approximately 3 months.
83. I have indicated that this judgment will be handed down in the absence of the parties and asked counsel to draw up a minute of order to reflect its terms. The embargo on publication of its terms until handing down will be relaxed only to the extent that the Claimant shall be entitled to carry out enquiries to ascertain the date when the next Easter Term ends so that the order can be made reflecting that date. After handing down I will hear any consequential applications at a telephone hearing to be arranged for the convenience of the parties.
84. I am very grateful to both counsel who clearly have considerable expertise in this area of the law.

ADDENDUM

85. Since distributing this judgment in draft for any typographical corrections or corrections of obvious factual errors, I have received some further written submissions with which I shall now deal in this approved judgment.
86. THE MANDATORY INJUNCTIONS SOUGHT BY PARAGRAPH 2(i) AND (vi) OF THE DRAFT ORDER.

i) These require the defendants to take active steps to remove hard surfacing and to restore the topsoil to the site.

ii) It is submitted that the evidence I have about their lack of means and the fact that I have treated them as occupiers but not owners of the plots should lead me to refuse these orders.

iii) I agree. I also take into consideration the fact that these orders have been granted against other defendants who did not contest the proceedings, including the registered proprietors of the land. I shall therefore not grant these mandatory orders since the land is to be restored by others under existing orders made by Judge Reddihough.

87. PERMISSION TO APPEAL

i) An application has been made on paper for permission to appeal relating to my approach to the lawfulness or otherwise of the decision of the local planning authority to take these proceedings. The application focuses on my treatment of the failure by the local planning authority to consider the use of section 24 powers and on the approach taken to the absence of a race impact assessment.

ii) I have conducted an exercise of discretion and have applied that discretion to the evidence as to what has happened in the case. In doing so, the court weighs a "bundle of factors" as Sullivan J has expressed it in one of the authorities cited to me. I am not persuaded that an appeal against this exercise of discretion has a real prospect of success on either of the grounds raised. I have considered the approach of the local planning authority to section 24 and the race impact assessment and decided that it does not amount to a reason for refusing to grant the injunction if it should be granted on other grounds. I consider that this was an approach which is open to me.

iii) I therefore refuse the application for permission to appeal.

88. EXTENSION OF TIME

i) I have been asked to extend time for lodging a notice of appeal until January 11^th. I am told that such an extension would be extremely helpful, from which I assume that the application is based on the fact that drafting such documents will take a considerable period of time and that counsel is already heavily committed. These are factors which deserve consideration but they would not justify any extension on their own. I have however received a submission based on the time which it is likely to take to obtain funding from the Legal Services Commission which is a substantial consideration for publicly funded defendants. I am told that an extension until 4^th January will assist in this regard. I will therefore grant that extension but no further extension beyond that date.

ii) My reason is that I have granted an order which requires the defendants to leave their homes by next March. If permission is granted by the Court of Appeal, there will no doubt be an application to suspend the operation of that order until the outcome of the appeal is known. It seems to me that it is important in the interests of the defendants that the Court of Appeal should be seised of any appeal without delay so that it can consider the proper timetable for its progress according to the demands of its own workload. It would be desirable for the issue of permission to be determined before next March if that is possible, and that, if it is not, consideration be given by that court to any further suspension of my order. I ought not to impede that court in disposing of this case with all possible speed.