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	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 >> Ashford Borough Council v Stevens & Ors [2018] EWHC 2101 (QB) (03 August 2018) URL: http://www.bailii.org/ew/cases/EWHC/QB/2018/2101.html Cite as: [2018] EWHC 2101 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Sitting at Winchester Combined Court Centre High Street, Winchester, Hampshire SO23 9EL
		03/08/2018

His Honour Judge Richard Parkes QC :

The Nature of the Dispute

1. This case involves land known as Hatchentan, on the north side of Plurenden Rd, High Halden, Kent TN26 3JH ('the land').
2. According to the Land Registry title, the legal proprietor of the land is the first defendant, David Stevens. John Hefferman, the fourth defendant, has told the Claimant's officers on several occasions that he is the owner, having bought the land from Stevens.
3. The Claimant, Ashford Borough Council ('the Council'), is the local planning authority for the area of Kent that includes the land. It is concerned to prevent the land from being developed and turned into a static caravan site, in breach of planning law. The Council is represented by Ms Saira Kabir Sheikh QC.
4. On 30 March 2018 Choudhury J granted the Council an injunction. The Judge ordered the Defendants (at that stage Stevens, Pieczonka and persons unknown) whether by themselves or by instructing, encouraging or permitting any other person, not to use the land or carry out works to the land in breach of planning control, and in particular not to (a) construct any hardstanding, access road, fences, walls or other means of enclosure or excavations or undertake any operational development of the land in breach of planning control, or (b) station any caravan or mobile home on the land for residential use or any other use in breach of planning control. The order included a penal notice.
5. The order was made to prevent apprehended breaches of planning control, in accordance with s187B of the Town & Country Planning Act 1990. It seems to have been completely ignored. Hardstanding and a roadway were constructed, a timber building was erected, septic tanks were installed, and several residential caravans came onto and remain on the land.

Applications before the Court

6. There are two applications before the court.
7. One is the Council's application dated 17 May 2018 for an order to commit David Stevens, Robert Pieczonka, John Hefferman, Susan (or Suzanne) Hefferman, John Ward, Edward Mongan and Paige Williams for contempt of court by acting in breach of the injunction. By order of 14 June 2014 the two Heffermans, Ward and Mongan were added as defendants.
8. The other is an application dated 23 April 2018 by Paige Williams to vary the injunction. Ms Williams, who is represented by Mr Stephen Cottle, was joined as a named defendant by order of Soole J on 18 May 2018.
9. Ms Williams' application is to vary the injunction to allow her and her family to remain on the land until their planning applications have been fully determined and/or any appeal to the Planning inspectorate resolved, and that no order be made on the Council's application for committal, or alternatively for the proceedings to be adjourned to allow sufficient time for the Council to re-house the defendants in what is termed 'culturally appropriate' accommodation.
10. The parties disagree about the merits of the planning application, but were the court to be persuaded that there is a real prospect of planning permission being granted by the Secretary of State, that would strengthen the applicant's hand.

Contempt of Court

11. Susan Hefferman, John Ward and Paige Williams have admitted contempt of court by stationing mobile homes for residential use on the land in breach of the order of Choudhury J. That contempt continues. Their sentencing has been adjourned pending the outcome of Paige Williams' application to vary.
12. The committal application was adjourned as far as concerns Stevens, Pieczonka, John Hefferman, and Mongan. I gave directions for the service of evidence and skeleton arguments, and warned that if they did not attend the adjourned hearing the court would proceed in their absence.

Nature of the Land and Planning History

13. The Council's position is that the land is within the Biddenden and High Falden Farmlands Low Weald Landscape Character Area, where some of the characteristics are an undulating landscape of mixed farmlands, with agricultural intensification leading to loss of hedgerows, and small scale field pattern with frequent scattered farms and manors. The Council's objectives are to conserve and improve the landscape.
14. The planning history of the land has included previous planning applications, which have been refused, for the use of the land to station residential caravans. Planning permission was granted in 2006 for change of use to the breeding of horses and ponies for sale, and the erection of a pair of stables and a tack room. That is the current permitted use.
15. Before the defendants occupied the land, it was therefore an agricultural field laid to grass with an authorised stable building, hardstanding and fencing for horses.
16. A temporary stop notice was issued on 17 Aug 2015 and on 21 Sept 2015 an enforcement notice (along with a stop notice) was issued. That prohibited the stationing of a caravan for residential use, the siting of a Portaloo in connection with the residential use of the caravan, and the laying of an additional area of hard surfacing.
17. There was an appeal against the enforcement notice by a man called Rossiter, a Romany gypsy by descent, whose estranged wife was said to own the land. The notice was upheld (partly, as Mr Cottle points out, on the footing that Rossiter was not a gypsy for planning purposes). Compliance was confirmed by 26 January 2017. That enforcement notice remains valid and enforceable.
18. On 29 March 2018 Susan Hefferman made an application for planning permission for five residential pitches, each to include a mobile home, utility room and touring caravan.
19. On 9 April 2018 the Council declined to consider the application, because it related to the development of land to which a pre-existing enforcement notice related. It did so in the exercise of its powers under s70C, Town and Country Planning Act 1990, by which:

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

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

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

Background

21. The background is as follows. I take it from the witness evidence adduced by the Council in support of the application for an injunction and the application to commit. I do not think that it is contentious, at least until 30 April, when the injunction was obtained. It is not yet clear how far, if at all, the Council's evidence of what took place after 30 April is disputed, because the affidavits belatedly filed on behalf of the applicant and her family do not condescend to detail.
22. David Stevens is the registered proprietor of the land, which he bought for £42,000 on 17 October 2017. There is no documentary evidence that he has passed title to John Hefferman (as Hefferman has claimed).
23. A contravention case was opened in early 2018 when it was found that a small brick electrical box had been installed along the southern boundary of the site to the west of the entrance gates. The owner (Stevens) told Joanne Alexander, a senior planning enforcement officer, on 28 February 2018 that it was there to provide electricity to the stables. Since there was no evidence of any intention to bring caravans onto the land, and the work involved no visual harm, the case was closed. However, it appears that this work was the precursor to what followed.
24. As I have said, Susan Hefferman made a full planning application on 29 March 2018 for change of use of the land for the placing of 5 gypsy pitches, the laying of hard surfacing and the erection of 5 utility rooms. The application was made on her behalf by WS Planning & Architecture. The proposed occupants were a family group, said to be Susan Hefferman and Frankie, 13 (now 14); Paige Williams, Susan Hefferman's daughter, and her son Tommy (now aged 5); John Ward, who was said to suffer from depression and to care for his children at weekends; Edward Mongan or Monghan; and John Hefferman (Ms Hefferman's brother). As stated above, the Council declined on 9 April to determine that application.
25. On 29 March Joanne Alexander telephoned Mr Stevens following reports of a digger and hardcore being delivered to the site. Stevens insisted that he was just doing what he had told her on 28 February, namely laying electricity from the box to the stables and tidying the site up. He was initially not forthcoming about what the digger was doing. To start with he said there was nothing on the site. Then he described it as a small digger which was there to dig the trench for the electricity cable. He said he was not a gypsy or a traveller and had no intention of bringing caravans onto the land. She explained to him that the extant enforcement notice prevented the stationing of caravans on the land for residential occupation.
26. Ms Alexander had a bad feeling about the site, in part because she had experience of bank holiday weekends being used as an opportunity to bring caravans onto land and take up occupation. It was Maundy Thursday, just before the Easter weekend.
27. She went to the site at 1531 on 29 March with her colleague Abigail Close. A low loader was parked across the entrance to the site and there were a significant number of piles of hardcore – she counted 13 - on the front part of the site. A large yellow digger was working on the land. They were approached by a man with an eastern European accent who said his name was Robert Pieczonka and that they could not come on the land. They spoke to the digger driver, who told them that it was a 40 ton digger which he had delivered. Mr Pieczonka took a telephone call, and passed the phone to Ms Alexander. Mr Stevens was on the line. She told him of her concern about the amount of hardcore and the digger and told him that nothing should be done. He told her again that he only intended to dig a trench for armoured cable, and to use the hardcore as backfill. He said there was 65 tons of hardcore. He said that she could call him on Tuesday, after the bank holiday, or he could come to her office.
28. When Abigail Close, a planning enforcement officer, visited the site on 29 March with Joanne Alexander they saw a black Citroen C4, reg LD60 AHN, parked outside the site with a female driver and children. The driver claimed to have pulled over to use her mobile phone. From the description given to her by her colleague Kelly Jethwa, Ms Close believes (and Ms Hefferman has not denied) that it was Susan Hefferman. On that occasion there was also a white transit van parked outside the site, reg NL14 BUU, with a note on the dashboard saying 'WS Planning and Architecture are handling an application for Susan Hefferman and her family'. That was the day when Ms Hefferman submitted her application for planning permission.
29. A temporary stop notice was served on the site on 30 March in an attempt to stop further development. It ordered that those involved should:

"Cease the carrying out of any further building, engineering or other operations on the land, including (but not limited to) the erection of any buildings or structures, creation of any or any further roads, tracks, areas of hardstanding, fences, walls or other means of enclosure, creation or widening of accesses or digging of pits, gulleys or trenches to facilitate the provision or extension or improvements of services to the land."

30. On 30 March, which was Good Friday, Ms Holloway visited the site with a colleague and observed further work taking place. She had been told that workers had arrived at 0600 in a pick up truck. Three 20 ton lorries were tipping hardcore on to the site and a huge Hi Mac digger was spreading the hardcore. That hardcore was in addition to the 65 tons to which Mr Stevens had admitted to the day before. There had also been fresh deliveries of hardcore which had been moved around the site. She saw a yellow digger digging up soil in two areas. She spoke to a worker who was not English, which made communication difficult, but he explained that they were improving the drainage and that two klargesters (septic tanks) had been delivered and installed. He said they would be laying electricity cable to the stables. But during the visit, the digger was excavating in a different area altogether. Since returning from the site she was told by residents that hardcore was being applied more widely across the land.
31. It was on the basis of that evidence that the order of 30 March was made.
32. The order was brought to the attention of those on the land in different ways. At 0906 on Saturday 31 March, Clare Marchant and Alex Stafford attended the site to serve notice of the order. A large yellow digger was operating. There were a number of bags of concrete mix piled near the access to the land. The gates were locked shut and the stop notice, which had been fixed by the entrance, had been taken down. Ms Marchant recognised Mr Pieczonka from photographs taken at the site two days earlier. He approached them. He said he did not know who had removed the stop notice. She tried to hand him a copy of the injunction bundle, which he refused to accept. She explained that he was being served with an injunction and that he was a person named on it. She advised him to stop work at once and explained the terms of the order to him. She explained that the order bore a penal notice, and what that meant. He still refused to accept a copy. She asked if Mr Stevens was present, and he said not. At 0915 she and Ms Stafford each attached a copy of the injunction bundle to the fence adjacent to the access to the land. That morning they also posted by first class post two copies of the injunction to Mr Stevens at 2 addresses, one (in Gravesend) being a recent address which he gave to the council, and the other (in Sandhurst, Berks) being that shown on the Land Registry documents.
33. Ms Marchant and Ms Stafford returned to the land at 1152, in time to see a large low loader delivering a mobile home, which (when she returned on 26 April) was still on site. It appears that this was Susan Hefferman's mobile home. She admits that she moved onto the land on 31 March. Ms Merchant also saw a single touring caravan (the same one appeared still to be there on 26 April) and a white van on the land. A man was still operating the yellow digger. As well as Mr Pieczonka, at least 5 other men were on the land. Ms Merchant again spoke to Mr Pieczonka, telling him that he was in breach of the injunction, reminding him that he was named on it and that non-compliance could result in imprisonment. She insisted the work on site should cease immediately, and that the caravans must be removed. He told her that he was not authorised by Mr Stevens to stop work. She asked if Stevens was present: he said no, but he would be back on Tuesday. She asked if he had a contact number for Stevens. He claimed that he did not. One injunction notice had been removed from the fence. She was approached by the driver of the white Transit van that was leaving the site. He told her that he was delivering furniture for the mobile home.
34. The two officers made a further visit to the land on the same day at 1325, by which time the low loader had gone. The mobile home that had been delivered was now positioned on the land. The man working the yellow digger was still on site.
35. Ms Merchant produces a number of photographs of the work being done on the land. It was plainly a substantial and well organised operation, which will have involved forward planning.
36. Alex Stafford went back to the land on the morning of Easter Sunday, 1 April, at 1145. The large mobile home and touring caravan which she had seen the day before were still there. The large digger was still there and was working. A white septic tank was on the ground next to the mobile home, and she reasonably suspected that it was waiting to be dug into the ground. As significantly, another large white mobile home had been brought onto the land, placed on uneven recently dug ground. There was also a further touring caravan. She recognised Mr Pieczonka on site.
37. She returned at 1530 the same day. The digger was still working. It had dug the land up to the northern boundary. Mr Pieczonka was again on site.
38. On Easter Monday, 2 April, Abigail Close visited the site at 1015. She saw that there were now three mobile homes on the site, and a white touring caravan. There was also a digger and a red tractor. There were about 8 men working on the site. They were erecting a wooden stable or outbuilding. There were several vehicles on the site, including the Citroen C4 which had been driven by Ms Hefferman. Abigail Close returned at 1614: there was no change. She saw a man drive out of the site in the Citroen C4. The copy of the injunction that had been pinned to the fence by the entrance was no longer there.
39. Kelly Jethwa, a senior planning enforcement officer, first visited the land on 3 April, with Kathryn Goodman, from 1235 to 1250. The injunction papers fixed to the fence on 31 March had been removed. She herself put up a further copy on the timber fence. She saw that a septic tank had been installed at the western side of the land. There were plastic piping and reels of cabling on the land. There were 5 mobile homes there and one touring caravan. The digger was still working, and works were continuing to lay hard standing. The ground had been widely excavated. Neither Mr Stevens nor Mr Pieczonka was on the land. She spoke to two men who said they were John Hefferman and his nephew, John Ward. They said they owned the land and were occupying it. They had put up notices at the entrance which said 'WS Planning & Architecture are handling an application for Susan Hefferman and family'. The two men said they were gypsies and had bought the land for five pitches for mobile homes for their family, namely John Hefferman, Susan Hefferman (his sister), John Ward (his nephew), Edward Mongan (another nephew) and Paige Williams (his niece). He said that his sister had arrived a couple of days earlier, and he had arrived yesterday (2 April). He said they had bought the land and mobile homes from Mr Stevens.
40. Ms Jethwa told them that there was an order which prevented the hardstanding and residential occupation. Hefferman said he was unaware of the order. She tried to hand him a copy of the order and papers but he would not accept it, on the ground that (so he claimed) he could not read or write. She told him that the order required all work to cease and that there was no planning permission for the work and for the caravans. He said a planning application had been made. She explained to him that the fact of an application did not allow occupation of the land. It was clear to her that he knew he needed planning permission.
41. On 5 April, Deborah Woledge, a process server, prepared a number of sets of documents for service. With a colleague, she fixed them in four clear plastic wallets to the fence by the entrance gates. There was a covering letter to Robert Pieczonka.
42. As they did this, they were approached by a man who said he was John Hefferman, and that he was in charge. She explained the reason for her visit. He said he was an Irish traveller who had bought the site from Mr Stevens with 5 pitches a few days before. He said there were 5 families on the site, and gave the names of Susan Hefferman, Paige Williams, John Ward and Edward Mongan. He said he could not read or write and that all matters were being dealt with by his legal people. She pointed out to him the seal on the court order, which was visible, and explained to him the meaning of the injunction in general terms. She said he must cease work on the site and that if he failed to he could be in breach of the order. She also explained to him the penal notice. She said that she had to give him a copy of the order and documents but he refused to accept them, saying that he must not accept any documents.
43. During the course of the conversation Hefferman became agitated and called over a woman called Paige (I take this to be the third defendant and current applicant, Paige Williams) to come over and film the conversation. Ms Woledge then took the opportunity to repeat in Ms Williams' presence what she had said about the effect of the order and penal notice. He said he would not be carrying out any further works. He refused her entry to hand copies of the order to any adults on the site. She said that if he would not take the papers she would leave them by the gatepost near where he was standing, and he replied that when he had spoken to his representative, he would pick them up if he was told that was ok. He asked her to leave a second set, which she did. When she was there, there were five static caravans, one touring caravan and three vehicles on site. She saw four males, including one boy, and two females, on site.
44. After 5 April, the Council received numerous reports of breaches of the order. On 5 April there were reports of a road roller on the site, and delivery of two 20 ton loads. On 7 April there were reports of work being done involving a digger and roller. On 8 April there were reports of a digger being used.
45. Ms Jethwa returned to the site on 10 April with Joanne Alexander. They spoke to John and Susan Hefferman in the mobile home which she was occupying, and were later joined by Paige Williams and her son Tommy. Ms Alexander told them that they did not appear as the registered owners of the land on Land Registry records. Mr Hefferman said he had used a solicitor in Gravesend for the purchase of the land. He did not know who that was and could not give a date for the purchase. He said he had bought it from Mr Stevens. He would not say when he moved on to the site.
46. Susan Hefferman said that the caravan that she occupied was her own, while the others had been bought with the land. Ms Jethwa recognised Susan Hefferman's caravan as the one brought on to the land on 31 March 2018, as described by Claire Marchant. (Ms Hefferman admits that she moved onto the land on 31 March). Mr Hefferman said he was unaware of the enforcement notice or of the injunction. He asked the officers to liaise with Brian Woods, his planning agent. He said he had passed a copy of the order fixed to the site on 3 April to Mr Woods, and he had been aware of paperwork being fixed to the fence on 5 April. He asked what would happen next. Ms Alexander said that the council would take the matter to court as there had been a breach of the order, and that he should instruct a solicitor. He said he would come to court.
47. When Ms Jethwa visited the site on 10 April there were three vehicles (including the black Citroen C4), most of the fenced in paddock area was covered in hardcore, the roadway from the site entrance extended northwards for 120m with more hardcore to the west, there were two static caravans and a tourer within the paddock area and three further caravans to the west of the roadway, a timber building was complete next to the existing (legitimate) timber building, there was a large bund of excavated soil around the pond, 1-1.5m high, there was a manhole inspection chamber east of the touring caravan, there were dog cages with 12 dogs, and a satellite dish was fastened to a post and rail fence.
48. Ms Jethwa returned on 19 April with Kathryn Goodman. They saw John and Susan Hefferman, John Ward and Paige Williams, with two unknown men. The hardcore access road had been extended to the east and a mobile home occupied by Edward Mongan had been relocated to a different position on the site. Mr Hefferman said that they were tidying the site, installing a cladding skirt and installing a sewage pipe for one mobile home. Ms Jethwa told him again that he should not be doing anything else on the site because of the order and the need for planning permission. Mr Hefferman said, when asked, that he had called Stevens three to four days earlier and that there was no answer. It is unclear why he called Stevens.
49. In sum, the developments carried out on the land since the order was made on 30 March were:

i) the introduction of hardcore, and excavation of land;

ii) the laying and extending of hardstanding;

iii) the construction of a substantial roadway, 120m long and 4m wide from south to north through the site;

iv) the deposit of a large quantity of excavated material around the pond;

v) the erection of a timber building;

vi) the installation of at least two septic tanks; and,

vii) change in use of the land to residential occupation by one touring and five static caravans.

50. This, according to Ms Jethwa, was exactly the kind of development that the Council had been concerned to prevent. It results, in her view, in significant visual harm to an isolated area of open countryside.

The Third Defendant's Application

51. Minton Morrill, solicitors for Ms Williams, sent the Council a letter before action on 26 April 2018, warning that she intended to challenge the refusal to determine Susan Hefferman's application for planning permission. The gist of it was that the refusal was unlawful because unreasoned and because the Council was said to have failed to take into account the personal circumstances of the claimant and her family.
52. Soole J gave directions on 18 May 2018 on the third defendant's application to vary. They included an order that she should serve and file any further evidence by 31 May 2018, and that any further evidence from the Council should be filed and served by 8 June 2018. There was also a direction for the exchange of skeleton arguments.
53. The papers with which I was provided at the hearing by the representatives of the third defendant were in a very unsatisfactory state. They were unnumbered, poorly organised and indexed, in some respects apparently incomplete, and far from easy to negotiate.
54. The affidavits sworn on behalf of individual defendants were vague, lacking in detail and documentary corroboration, and did not address properly such important questions as the precise circumstances in which they entered on the land, which demanded careful and thorough answers. It is not as if the deponents were unrepresented litigants: they were advised at the time by solicitors who must be taken to have understood what evidence was required.
55. Despite Soole J's order, most of the evidence was not served until long after 31 May. There was no explanation for the lateness of the evidence, nor any apology. Paige Williams' second affidavit, and the affidavits of John Ward and Susan Hefferman, were not sworn until 14 June, the morning of the hearing. Brian Woods' witness statement, though sworn on 13 June, was exhibited to Ms Williams' affidavit. Nor did the Council have any chance to consider the psychiatric evidence (contained in a report dated 11 June).
56. That is not a helpful background against which to determine this application, and it created difficulties for Ms Sheikh QC and for the Council, which had no time at all to reply to the applicant's evidence. In effect, the Council was ambushed.

Paige Williams' affidavits

57. Ms Williams has sworn two affidavits. The first is dated 25 May 2018.
58. She says that she is an Irish traveller who wishes to stay on the land until the determination of her mother's application for planning permission. She says that Mr Stevens sold her family ('us') the land with four mobile homes, which were there when they arrived. She says: 'We thought the mobile homes could be on the site as Mr Stevens said so'. The only mobile home that they introduced on to the land was her mother's. Given the evidence that Ms Hefferman was apparently present at the site on 29 March, before any mobile homes had arrived, I think that the truth must be a little more complicated than Ms Williams' account suggests. Moreover, she says nothing of when or for how much the land was bought, and exhibits no documents of sale.
59. Ms Williams explains that her mother, Susan Hefferman, has mobility problems and is in a wheelchair. Her mother's medical notes are exhibited. Ms Hefferman is 49, illiterate, and suffers from a variety of ailments, including asthma, complex regional pain syndrome, chronic obstructive pulmonary disease and rheumatoid arthritis. She has been prescribed a number of strong painkillers, including pregabalin, amitriptyline, morphine capsules and morphine sulphate.
60. Apparently, her mother used to live on a rented pitch at Headcorn, but a family 'targeted' her and she had to leave. She has nowhere to go, according to Ms Williams, because she cannot move back to the Headcorn site. Moreover, Ms Williams herself was burgled (her second affidavit states that she was living in a flat in Gravesend at the time).
61. Ms Williams states that she moved on to the site because she needed somewhere permanent to live, and because her 'whole family is in danger from another family that have attacked me and my mum'. They have been told that there are parts of Kent they cannot go to.
62. It is very difficult for the court to place any weight on that kind of vague and generalised assertion, which raises more questions than it provides answers. If she is referring to the attack on her mother at Headcorn, why does that put Ms Williams in danger (she not having lived there), or even her mother, once her mother had left the Headcorn site? Who are the people who are making these threats, and why? What exactly do the threats amount to? How is it that they are out of danger at High Halden, which is only a few miles from Headcorn? Some further light is cast on this by her later affidavit, but not much.
63. She refers to her depression and to her understandable wish to be in a settled place for the sake of her son's schooling. She feels that the family needs to live together so that they can look after each other.
64. In her short further affidavit, sworn on 14 June 2018, she explains that with John Ward she is the main carer of her mother. She says that she was burgled in her last accommodation, a flat in Gravesend. She believes that the culprits were members of what she calls the 'travelling community'. It is not clear why she believes that, nor what the relevance of the burglary is said to be, except that she believes (without explaining why) that the same people were responsible for targeting her mother at Headcorn. She left that accommodation and then stayed in the car park of a business site in Ramsgate, from which she was evicted.
65. She gives a short, vague and unsatisfactory explanation for the circumstances in which she arrived on the land and stayed there in breach of the order of the court. She says that John Hefferman just told her that the council said no more work was done on the site, and no more work was done. It was not until she spoke to her solicitor that she realised that the order meant they had to leave the land. She does not deal with the evidence of the process server, Deborah Woledge, that she explained the effect of the injunction to Hefferman and a woman called 'Paige' on 5 April 2018.
66. She apologises for not complying with the order and states, without giving reasons, that it was not possible for her to comply with the order (ie move off the land) 'with me as the carer for my mum, her ill health, my son and my pregnancy'. She says that she is sorry for what has happened but asks the court not to separate her from her son (that has never been suggested, as far as I am aware) and asserts that her mother needs her to care for her.

John Ward

67. There is a brief and highly uninformative affidavit from John Ward, who gives no explanation at all for the circumstances in which he arrived on the land, or where he was living before. He simply says that he is a pallet salesman who suffers from very bad depression and wants his children (aged 8 and 10) to come to stay with him at weekends. He apologises for breaking the order, but says that he has nowhere else to go. It is difficult to evaluate such a claim when he says nothing about where he was living before and why he had to leave.

Susan Hefferman

68. Ms Hefferman states that she came on to the site on 31 March 2018 with her mobile home. She claims not to have known what the council officers were telling her when they visited, because of the morphine that she takes.
69. She explains that she was being abused and harassed on her previous pitch at Headcorn, where she had been for 4 years, by people who would shout abuse, throw bricks, break her windows, and let out her horses and dogs. This, she believes, was because they wanted to buy the land and she was unwilling to move out. That was a terrifying experience for her.
70. She refers to her son Frankie, who is now just 15, and who wants to be a farrier. He is doing very well in his new school. He would be devastated if they had to move. However, she does not refer to the fact that according to a Kent County Council Housing Needs Assessment, carried out recently but before she moved, she lived alone, and Frankie only stayed at weekends. It is most unfortunate, and surprising, that she does not even mention that in her affidavit, let alone explain why he has now come to live with her all the time instead of making weekend visits.
71. She says that she had not known that she should not have come onto the High Halden land, until she was told by her solicitor. She does not explain how it is that she was not acquainted with the many notices of the injunction which were put up around the site by Council officers, nor how she can have believed that she was entitled to move onto the land when she herself had only just made an application for planning permission to reside there.
72. She says that she regrets and is sorry about what has happened, but needs her daughter and cousin to look after her.

Other defendants

73. There is no evidence from any other defendants, including John Hefferman and Edward Mongan, who are (or were) intended beneficiaries of Ms Williams' application to vary. Given that Mr Hefferman is the person who is alleged to have bought the land from Stevens, and might have been best placed to give a full account of the circumstances in which he and his family moved onto the land in breach of the order, it is surprising that he has not put in evidence, even if (which I do not know) he is not represented by Minton Morrill.

Dr Robinson's report

74. Ms Williams exhibits a medical report dated 11 June 2018 by Dr Benjamin Robinson, who states that he specialises in psychiatry at the Maudsley and King's College Hospital.
75. It is a slightly unusual psychiatric report, partly because the history which Dr Robinson recounts appears to be almost wholly dependent on the accounts given to him by Paige Williams, Susan Hefferman and John Ward, all of whom he seems to have assessed on 29 May 2018. Psychiatric reports normally refer to records of contacts with mental health services, and any previous reports, in order to supply a reliable history which is independent of the account given by the patient, against which the patient's account can be checked and verified. As far as I can see, no psychiatric records are referred to in support of his conclusions.
76. Dr Robinson explains that Ms Williams was depressed when she lived in a house, and wanted to adopt the 'Traveller (or Travelling) lifestyle'. When the chance arose to move onto the land, she was eager to do so for a number of reasons. One was that she wanted to alleviate her depression by returning to the travelling lifestyle which is said to constitute her culture (albeit that she was to live in a stationary caravan), to provide stability for her son Tommy and a school that he could attend regularly, and to have a safe place in which to complete her pregnancy and nurse her child. She also wanted to look after her mother Susan Hefferman, who is described as having severe mental health (as well as physical) impairments, and as being disabled and unable to look after her own basic daily needs.
77. According to Dr Robinson, Ms Williams had a major depressive episode as well as post-natal depression after the birth of Tommy. He does not cite any medical records in support of that assertion, so although he states it as if it amounts to a diagnosis, it must in fact be a part of the history provided by Ms Williams. He concludes that removal of herself – or any member of her family – from the land would constitute a major stressful event and would increase the chance of post-natal depression. He would therefore be concerned for her mental health and for the health of the new baby. Eviction to the roadside would put the baby at risk of complications because the hospital would have difficulty contacting her and she would have difficulty getting to appointments from an unstable, unpredictable address.
78. I quite accept that eviction to the roadside would be highly unsatisfactory for any mother of young children, but I cannot fathom why – with mobile phones almost universal – she would be any more difficult to contact than she is when living on the land, nor why – with a mother and uncle who appear to drive a car, even if she does not do so herself – she should be unable to attend appointments.
79. Dr Robinson also considers Ms Williams' prognosis if she went back to living in a house rather than a caravan. His professional conclusion, based on what she has told him, is that she has a 'deep, abiding and psychologically damaging aversion' to bricks and mortar. Moreover, it would not just be her mental health but that of her son and baby that would be affected, and he goes so far as to opine that it would be 'unlikely that her new baby or her son would ever recover'. That seems to me, in the circumstances, to be a remarkably strong and certain opinion.
80. Susan Hefferman's condition is also considered by Dr Robinson. She was abused as a child, and there seems to have been a diagnosis of PTSD, although Dr Robinson did not see the report of the psychiatrist who made the diagnosis, and I have not been able to find any reference to it in her medical reports. However, he appears to regard it as well founded. He refers to her physical condition, and rightly notes that she is very immobile and needs a wheelchair. It appears that she is awaiting a modified mobile home with bars for her to hold onto, which will help her to move around.
81. Dr Robinson considers what the prognosis would be if Ms Hefferman were evicted from the land. She maintains that she would kill herself if she were forced to live in a normal house. That extreme reaction would be due in part to the loss of the style of life with which she was familiar as a child before she was taken into care, and in part to the trauma of her childhood abuse, which took place in buildings built of brick and mortar. It is said that she avoids any brick buildings because they remind her of her abuse. If evicted to the roadside, she would not have access to carers and would be unable to undertake the necessities of life. If sent to another traveller site, then in Dr Robinson's professional opinion there would be 'no way' that her PTSD could be successfully treated, because she would be afraid of the other travellers, having experienced attacks from other travellers (English, as opposed to Irish) in the past, whom she regards as violent and racist towards her. In short, her PTSD would worsen.
82. Dr Robinson also assessed John Ward, who is Paige Williams' cousin. Mr Ward is diagnosed as suffering from Recurrent Depressive Disorder. Dr Robinson does not explain whether this is his own diagnosis (and, if so, what it is founded upon) or whether it is that of another doctor. It appears that Ms Hefferman is in effect his surrogate mother. He came to the land, it seems, because he wanted to cease roadside living, since his partner would not allow him access to his children while he lived by the road. He would like to have them with him at weekends. It is unclear where they live during the week. I hope I do not do Dr Robinson's lengthy hypotheses an injustice when I say that what they amount to is that eviction would worsen Mr Ward's depression and he would or might become suicidal.
83. Finally, Dr Robinson also expressed a professional opinion about Ms Hefferman's son Frankie, who is 14, even though he did not meet him. He took a detailed history from Ms Hefferman. On the strength of that, he concludes that Frankie suffers from learning difficulty, conduct disorder, and likely ADHD. He has been very hard to control, and constantly in danger, but his behaviour has improved on the site, where he can look after the horses. He is 'talking steps' to get back into education. In short, he is a child 'with a high degree of social, behavioural, emotional and learning impairment'. Both Frankie and Tommy, Ms Williams' boy, would be at risk if they were forced to live by the roadside. That is obviously correct, for any of a number of reasons.
84. Dr Robinson refers to his patients' claim that they were 'duped' into moving on to land which they were told had planning permission for mobile homes, when in fact this was not the case. Given that Ms Hefferman put her name to a planning application for use of the land on 29 March 2018, and was apparently seen at the site on that day in her car, when the work was well under way, it is not immediately easy to see how the deception can have taken effect.
85. I quite accept that these three people, and possibly Frankie, do have the problems which Dr Robinson describes, and that it would be difficult, traumatic and in many ways undesirable from their point of view for them to be moved from the land. However, Dr Robinson crossed the line into advocacy. That is not his role. Had he not seemed to be trying so hard to persuade, his report would have been more persuasive.

Brian Woods

86. There is also a witness statement dated 13 June 2018 from Brian Woods, exhibited, for no obvious reason, to Paige Williams' affidavit of 14 June, and itself exhibiting a number of documents. It provides a helpful overview of planning considerations, but it would have been very much more helpful if it had been served in time to enable the Council to reply to it, as Soole J ordered. Mr Woods gives no explanation or apology for its lateness.
87. He is managing director of a planning consultancy called WS Planning, and acts for the Hefferman family in their planning application. His consultancy's notices were visible on and at the land from 29 March when Stevens was working on it, as if to suggest that the fact of an extant planning application sanctioned what was taking place.
88. As I have said, a revised application was made on 12 June 2018, which (according to Mr Woods) attempts to meet some of the Council's concerns by limiting development to two pitches 'for those persons in the greatest urgent need', each with a caravan, utility room and mobile caravan. One pitch would be occupied by Paige Williams (and Tommy and the baby) and the other by Susan Hefferman (and Frankie).
89. Mr Woods takes the view that there should be a presumption in favour of the development, having regard to what he considers the Council's failure to address properly the needs of travellers and gypsies.
90. Mr Woods refers to the delays with the Council's adoption of a Gypsy and Traveller Development Plan Document (DPD), and the unmet need for pitches within the borough. Repeated assurances have been given to Inspectors as to when a DPD will be adopted, but nothing has yet happened. It appears that consultation on a DPD is continuing. In Mr Woods' view, this represents an ongoing failure of policy. Indeed, it appears that this has been admitted by the Council. He refers to a Gypsy and Traveller Accommodation Assessment (GTAA) made in 2013, which identified a need for 17 additional pitches between 2012-2017, and for 57 pitches between 2012-2028. According to a report by Council officers in connection with a different application for planning permission for gypsy residential use in October 2016, 'there is still a general unmet need (for gypsy sites) in the borough', and 'the lack of a 5-year supply of deliverable sites is a significant material consideration'.
91. It appears that the extant Local Plan was adopted in June 2000, and contained a criteria-based policy for considering planning applications for traveller and gypsy sites. It was updated in June 2014, with the policies to remain saved. The current proposed Plan was submitted in December 2017. The Plan in its 'Submission Version' sets out policy HOU16 on Traveller Accommodation, stating that planning permission for new sites to accommodate gypsies and travellers will only be permitted outside allocated sites if certain criteria are met. Among those criteria are the need for the Council to be satisfied that there is a clearly established need for the site and that the proposals cannot be accommodated on an existing available site or allocated site. A further criterion is that the form and extent of the accommodation does not adversely affect the key characteristics of a Landscape Character Area.
92. Mr Woods accepts that paragraph 25 of the Government's Planning Policy for Travellers Sites (PPTS) requires that local planning authorities should very strictly limit new traveller site development in open countryside that is away from existing settlements or outside areas allocated in the development plan, but argues (in accordance with a decision to which he refers by an Inspector in another case) that does not mean such developments should always be resisted, but rather that particular care should be given to their location and number. In Mr Woods' view, the proposed use of the land does not (subject to conditions on landscaping) conflict with the policy in the PPTS.
93. In Mr Woods' view, the Council should not decline to determine the revised application simply because of an existing enforcement notice. He believes that there is a reasonable prospect of planning permission being granted on appeal, even if it is refused by the Council.

Law

94. The Town and Country Planning Act 1990 s187B provides as follows:

"(1) Where a local planning authority consider 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 Act.

(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.

(3) Rules of court may provide for such an injunction to be issued against a person whose identity is unknown.

(4) In this section 'the court' means the High Court or the county court."

95. The relevant legal principles were settled by the House of Lords in South Buckinghamshire District Council v Porter [2003] 2 AC 558. That was an appeal in three cases in which gypsies had placed mobile homes on land where planning consent had been refused. The planning authorities had each obtained injunctions which ordered the removal of the gipsies. The defendants appealed, on the footing that the court had failed to consider the likely effect of the orders on their human rights. They succeeded in the Court of Appeal and the planning authorities' appeals were dismissed by the House of Lords.
96. Porter is authority for the propositions that:

i) s187B confers an original and discretionary jurisdiction to be exercised with due regard for the purpose for which it was conferred to restrain actual or threatened breaches of planning control;

ii) it is inherent in the remedy that its grant depends on the court's judgment of all the circumstances of the case;

iii) although the court will not examine matters of planning policy and judgment which lay within the exclusive purview of the planning authorities, it is not obliged to grant relief because a planning authority considers it necessary or expedient to restrain a planning breach; and,

iv) the court should have regard to all the circumstances of the case (including personal circumstances), is required by s6 Human Rights Act 1998 to act compatibly with Convention rights, and, having regard to Art.8 rights, will only grant an injunction where it is just and proportionate to do so.

97. The House of Lords approved the following guidance given by Simon Brown LJ in the Court of Appeal ([2002] 1 WLR 1359):

"38. Questions of the family's health and education will inevitably be of relevance. But so too, of course, will countervailing considerations such as the need to enforce planning control in the general interest and, importantly therefore, the planning history of the site. The degree and flagrancy of the postulated breach of planning control may well prove critical. If conventional enforcement measures have failed over a prolonged period of time to remedy the breach, then the court would obviously be the 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. On the other hand, there might be some urgency in the situation sufficient to justify the pre-emptive avoidance of an anticipated breach of planning control. Considerations of health and safety might arise. Preventing a gipsy moving onto the site might, indeed, involve him in less hardship than moving him out after a long period of occupation. 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.

39. 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 necessity and proportionality.

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 reach a different planning judgment in the case.

41. True it is, as Mr McCracken points out, that, once the planning decision is taken as final, the legitimate aim of preserving the environment is only achievable by removing the gipsies from site. That is not to say, however, that the achievement of that aim must always be accepted by the court to outweigh whatever countervailing rights the gipsies may have, still less that the court is bound to grant injunctive (least of all immediate injunctive) relief. Rather I prefer the approach suggested by the 1991 Circular: the court's discretion is absolute and injunctive relief is unlikely unless properly thought to be 'commensurate'—in today's language, proportionate….. Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the public interest objective sought—here the safeguarding of the environment—but also that it does not impose an excessive burden on the individual whose private interests—here the gipsy's private life and home and the retention of his ethnic identity—are at stake.

42. I do not pretend that it will always be easy in any particular case to strike the necessary balance between these competing interests, interests of so different a character that weighing one against the other must inevitably be problematic. This, however, is the task to be undertaken by the court and, provided it is undertaken in a structured and articulated way, the appropriate conclusion should emerge."

98. It is material to consideration of the Art.8 rights of the applicant and her family that they are faced with having to vacate land which has already been occupied. That requires consideration of the question whether the occupation of the land was lawful.
99. Mid-Bedfordshire District Council v Brown [2004] EWCA Civ 1709 (Lord Phillips MR, Mummery and Jonathan Parker LJJ) was a case in which, by contrast with Porter, but similarly to the present case, an injunction was granted when workers were observed using a digger to excavate and to lay hardcore over a Bank Holiday weekend, and a family of gypsies had then moved their caravans on to land in breach of that existing court order. No application was made to vary or discharge the injunction.
100. Tugendhat J allowed the gypsies to remain on the land until the determination of their planning application by suspending the operation of the order. Mummery LJ (giving the judgment of the court) observed at [10] that the effect of a lengthy suspension, as the judge granted in that case and as (in effect) the third defendant seeks in this case, "would tend to defeat the whole purpose of applying for an injunction to enforce planning controls, to dilute the requirement for obtaining prior planning permission for a change of land use and to secure by unlawful actions a temporary and special exemption from generally applicable planning controls".
101. The Court of Appeal allowed the planning authority's appeal, Mummery LJ stating the court's reasons in these terms:

"25. In our judgment, the judge's decision to suspend the injunction pending the determination of the planning application did not take proper account of the vital role of the court in upholding the important principle that the orders of the court are meant to be obeyed and not to be ignored with impunity. The order itself indicated to the defendants the correct way in which to challenge the injunction. It contained an express provision giving the defendants liberty to apply, on prior notice, to discharge or modify the order. The proper course for the defendants to take, if they wished to challenge the order, was to apply to the court to discharge or vary it. If that failed, the proper course was to seek to appeal. Instead of even attempting to follow the correct procedure, the defendants decided to press on as originally planned and as if no court order had ever been made. They cocked a snook at the court. They did so in order to steal a march on the council and to achieve the very state of affairs which the order was designed to prevent. No explanation or apology for the breaches of the court order was offered to the judge or to this court.

26. The practical effect of suspending the injunction has been to allow the defendants to change the use of the land and to retain the benefit of occupation of the land with caravans for residential purposes. This was in defiance of a court order properly served on them and correctly explained to them. In those circumstances there is a real risk that the suspension of the injunction would be perceived as condoning the breach. This would send out the wrong signal, both to others tempted to do the same and to law-abiding members of the public. The message would be that the court is prepared to tolerate contempt of its orders and to permit those who break them to profit from their contempt.

27. The effect of that message would be to diminish respect for court orders, to undermine the authority of the court and to subvert the rule of law. In our judgment, those overarching public interest considerations far outweigh the factors which favour a suspension of the injunction so as to allow the defendants to keep their caravans on the land and to continue to reside there in breach of planning control."

102. Broxbourne Borough Council v Robb [2011] EWCA Civ 1355 was another case where people moved on to land in breach of an existing injunction, which the appellant refused to obey, saying that he had nowhere else to go. The Court of Appeal confirmed that an application to vary an injunction is governed by the principles set out both in Porter and in Brown. That required consideration of:

i) planning issues (including whether the prospects of success are sufficiently strong to provide a factor of real weight weighing the balance in favour of granting a variation of the injunction pending the outcome of an appeal);

ii) the personal circumstances of the applicants, including their Art.8 rights and the best interests of any children; and,

iii) the overarching public interest in ensuring that court orders are respected and obeyed.

103. By contrast with the cases considered in Porter, this is a case where the defendants moved on to the land in breach of an injunction which had already been granted.
104. For that reason, Choudhury J did not know the personal circumstances of the applicant or her family. He was granting an injunction against two named defendants and persons unknown. The applicant and her family, though the position was later regularised by order of Soole J and then by me, became people to whom the injunction was addressed, and became defendants, when they moved on to the land in breach of the injunction. I must take the personal circumstances of the applicant and her family into account on this application for a variation of the order. I must also take into account the fact that the applicant and her relatives are in flagrant breach of an order of the court.

Submissions

105. Mr Cottle, for the applicant, argued that there was a real prospect of the planning application being determined favourably, and that in the circumstances the court should vary the injunction notwithstanding the principles stated in the case of Brown.
106. He referred to the case of South Cambridgeshire District Council v Gammell [2006] 1 WLR 658, a case where, like the present, the defendant gypsies brought their caravans on to land following the grant of an injunction. Those facts, as Sir Anthony Clarke MR observed at [28], gave rise to a crucial distinction between that case and Porter, such that the ratio of Porter did not apply to Gammell.
107. In Gammell, an application was made for committal, but the defendants made no application to vary or discharge the order. Their appeals were dismissed, the court holding that they were in breach of the orders and had the requisite knowledge to be in contempt of court, and that there was no discretion to be exercised nor balancing exercise carried out in concluding that they were in breach of the order and in contempt of court. The discretion or balancing exercise only arose on (inter alia) an application to vary or discharge the order. However, Mr Cottle relies on the court's guidance at [33] that the correct course for a person who learns that he is enjoined and wishes to take further action which is or would be in the breach of the injunction, and thus in contempt of court, is not to take such action but to apply to the court for an order varying or setting aside the order. On such an application, the court should apply the principles in Porter:

"A person who takes action in breach of the injunction in the knowledge that he is in breach may apply to the court to vary the injunction for the future. He should acknowledge that he is in breach and explain why he took the action knowing of the injunction. The court will then take account of all the circumstances of the case, including the reasons for the injunction, the reasons for the breach and the applicant's personal circumstances, in deciding whether to vary the injunction for the future and in deciding what, if any, penalty the court should impose for a contempt committed when he took the action in breach of the injunction. In the first case the court will apply the principles in the South Bucks case and in the Mid-Bedfordshire case."

108. The applicant and his family, Mr Cottle submits, fall into that category, and therefore those principles fall to be applied.
109. Mr Cottle took me on a rapid and extensive tour d'horizon of planning principles (albeit, unfortunately, without the assistance of a skeleton argument).
110. He argued, in essence, that there is a real prospect that the planning permission might succeed, relying on the words of Stadlen J in Brentwood BC v Ball [2009] EWHC 2433 (QB) at [45(13)], that while it is not the function of the court to second guess or go behind planning decisions already taken, "[i]t is legitimate for the court when considering whether it is just and convenient to grant an injunction and if so when and what terms, to consider whether there is a real prospect that planning permission will be granted or an appeal against the refusal of planning permission will be successful."
111. Mr Cottle referred to s38(6), Planning and Compulsory Purchase Act 2004, by which a planning application must be dealt with in accordance with a local Development Plan unless material considerations justify departing from it. Among those material considerations were the evidence of repeated delays in producing a DPD for travellers' sites and of the lack of proper planning for the unmet need for travellers' pitches, there being a public interest in avoiding unauthorised sites. I observe that the decision of the Inspector on the appeal against the enforcement notice shows (para 16) that an unmet need for sites is a significant material consideration when contemplating whether to grant temporary planning permission for a proposal.
112. Mr Cottle referred to the national policy on protection of the countryside in the PPTS, and relied on the way in which an Inspector in another case had construed paragraph 25 of the PPTS, ie as meaning not that traveller sites in the open countryside should always be resisted, but that particular care should be given to their location and number: permission was granted. That seems a not unreasonable construction, as long as the adverbial phrase 'very strictly limit' is given its full meaning. He submitted that against that background, in particular in the context of the Council's policy failures, Ms Williams had a reasonable prospect that an Inspector would disagree with any decision by the Council to refuse permission.
113. Mr Cottle also relied on the evidence of the health and welfare needs of the applicant and her family (including the best interests of their children) as material considerations. In connection with the children, he referred to the UN Declaration on the Rights of the Child art.3(1), by which in all actions concerning children, the best interests of the child shall be a primary consideration. S11, Children Act 2004, imposes a duty on public bodies to carry out their functions having regard to the need to safeguard and promote the welfare of children, and I accept that any decision taken without having regard to that need will not be 'in accordance with the law' for the purposes of Art.8(2) of the European Convention.
114. In relation to the Inspector's decision to uphold the enforcement notice, he pointed out that one reason for the decision was that the appellant was not a gypsy for planning purposes. That is a good point as far as it goes, but it does not go very far, because the Inspector still decided that the land was not suitable for use even as a single gypsy pitch.
115. Moreover, there is no evidence that it has yet been determined that the applicant or her family are travellers for planning purposes. As Ms Sheikh observed, if a person has ceased a nomadic way of life they may cease to benefit from planning policies designed to protect the interests of travellers. It was not clear, she submitted, that the applicant or any of her family had a nomadic way of life. Mr Cottle pointed out that the PPTS contemplates that travellers can have ceased to travel for a long time without being found to have abandoned the way of life. (Travellers are defined in the PPTS of August 2015 as 'Persons of nomadic habit of life whatever their race or origin, including such persons who on grounds only of their own or their family's or dependants' educational or health needs or old age have ceased to travel temporarily'. In determining whether people are gypsies or travellers for the purposes of the policy, consideration should be given to three issues among other relevant matters – (1) whether they previously led a nomadic life; (2) the reasons for ceasing their nomadic habit of life; and (3) whether there is an intention of living a nomadic life in the future, and if so, how soon and in what circumstance). I note that the Ashford Gypsy and Traveller Accommodation Assessment Update Paper (GTAA), published in June 2016 in response to the updated PPTS, suggests that the new definition might lead to a decline in pitch need. No doubt the question of the status of the applicant and her family will have to be determined on any consideration of the planning application.
116. Mr Cottle told me on instructions (this was not in evidence) that the defendant Stevens still owns parts of the land, including the pond. He explained by reference to photographs in the Council's committal bundle what the effect would be of the new planning application, and that the area not to be occupied for residential purposes would be restored to its original condition if it was within the applicant's power to do so. It was not his fault that without proper evidence I did not find that a very helpful exercise, although I understand that these are factors which may weigh with the Council or the Inspector in determining the application.
117. Ms Sheikh QC, for the Council, argues that the extant enforcement notice runs with the land and cannot now be challenged. By s285 Town & Country Planning Act 1990, there can be no challenge to an enforcement notice except on an appeal under s174, and that appeal has been determined. The Inspector determined the appeal on the footing that the land was not suitable even for one gypsy pitch or and that planning permission should not be granted. The fact that the appellant Rossiter was not a gypsy for planning purposes meant that his personal circumstances did not add measurable weight in favour of a grant of planning permission: it did not mean that a different result would have been reached had he been a gypsy for planning purposes, although of course that would always depend on the personal circumstances of the applicant. The consequence of the Inspector's decision, Ms Sheikh argued, was that the planning merits have been considered, and it has been determined that the proposed change of use to a gypsy site would be harmful in terms of landscape and sustainability. It follows, she submitted, that the planning situation is therefore clear and apparently final (in Lord Scott's words), and therefore the court must consider the injunction application without regard to the merits of the planning decisions.
118. I find that a cogent argument, so far as it goes. But it seems to entail the questionable proposition that the Council can refuse for all time to determine future applications to develop this land, simply because of an Inspector's decision on one previous application. Every case is different, and the differing personal circumstances of the applicant would surely have to be taken into account. They might conceivably cause an Inspector to reach a different conclusion on the facts.
119. Ms Sheikh also argues that the HOU16 policy will be adopted at the end of 2018 as part of the local plan, when a planning inspector will have to asses whether it is compliant with national guidance. Some weight can be given to it at this stage, she suggests. The current application would fall foul, she suggests, of paragraphs (e) (need for local services and facilities to be readily accessible from the site), (g) (need for form and extent of accommodation not to affect adversely the key characteristics of a Landscape Character Area), and (h) (need for access to the site not to endanger highway safety for vehicles or pedestrians).
120. On that footing, Ms Sheikh submits, even if the Council did consider the current application, the application would fall foul of those justifiable criteria. I am not sure that is true of criterion (h). However, it is certainly true that the Inspector who dealt with the appeal against the Enforcement Notice considered that the site was in a somewhat isolated position, which conflicted with the requirements of the PPTS (and, putatively, of criterion (e) of policy HOU16), and also that it would cause further degradation of the rural surroundings and visual harm to its immediate surroundings, a conclusion which on the face of it would run counter to criterion (g). She also referred to paragraph 25 of PPTS, to the effect that new traveller site development in open countryside away from existing settlements should be strictly limited, and observed that the cumulative erosion of open land around the village of High Halden was an important consideration.
121. Therefore, Ms Sheikh submitted, I should not conclude that there was a real prospect of the planning situation changing.
122. She also made the point that in a case such as this it is acceptable for brick and mortar accommodation to be offered. In other words, even if there are at present no suitable gypsy pitches, alternative arrangements can still be made for the applicant and her family in accordance with the Council's housing duty. She relied for that proposition on the case of Codona v Mid-Bedfordshire District Council [2004] EWCA Civ 925 at [49]. I accept that, as Mr Cottle argued, every case must be considered on its own facts, and that the facts of Codona were extreme, in that it was a case where someone had been evicted from a site one afternoon and applied for immediate accommodation. But Ms Sheikh's point remains valid in principle.
123. I note from the decision on the appeal against the enforcement notice that the fact that the appellant had (in common with the present applicant and her family) occupied the site before obtaining planning permission for residential use is a material consideration. According to the Inspector, 'Such intentional development is now a material consideration to be weighed in the determination of planning appeals, as set out in a Ministerial Statement given on 31 August 2015, which applies to applications and appeals made from that date'.

Decision

124. The starting point is that Ms Williams and her family came on to the land when, as they must have known, they had no right whatever to use it for residential purposes. I say that because Susan Hefferman made an application for planning permission for residential use on 29 March, the day that she was seen by the entrance to the land in her car, at a time when Pieczonka and Stevens (who appears to have lied repeatedly to Council officers about what his intentions were) were still carrying out the various works which the Council's evidence describes. She had received advice from Mr Woods' consultancy, which acted as her agent in making the application. She must have known perfectly well that she had no right to reside there, whether or not, as John Hefferman claimed (but does not now suggest in an affidavit), he had bought the land from Stevens. It is very difficult to believe, as Dr Robinson did, that in those circumstances any of the Hefferman family can have been the 'dupes' of Stevens.
125. It does appear to be clear that the court order was made before any of the Hefferman family came on to the land. There could therefore be no argument that the status quo favours protection of their continued occupation. Even on the applicant's own evidence, vague though it is on the detail of when she arrived and what she knew, she does not suggest that she began occupying the land until after the injunction was granted.
126. Ms Williams and Ms Hefferman claim not to have known of the court order when they came on to the land. I do not think that I have to decide that question, although it stretches credulity that neither the applicant nor Ms Hefferman knew they were obliged to leave the land until (as they claim) they were told by their solicitors. It is probably enough to say that the evidence shows that copies of the order were repeatedly fixed around the entrance of the land from 31 March, that Ms Hefferman's brother was offered copies of the order on 3 and 5 April (but refused to accept one) and had its effect explained to him, that the effect of it was explained to the applicant, Ms Williams, on 5 April also, and that both Heffermans, and Ms Williams, had its effect explained to them on 10 April (when Ms Hefferman says that she was oblivious to what was said because of the morphine that she had taken, and Ms Williams says that she did not 'fully concentrate' because her son Tommy was with her).
127. Whenever they did learn of the order, they were aware from that point that their original occupation of the land was in breach of the injunction, and that their continued occupation was a continuing breach. No steps were taken to apply to vary or discharge the injunction until Ms Williams made her application on 23 April.
128. It is not entirely clear how the new application for planning permission bears on the evidence advanced by the applicant and her family. According to Mr Woods, the revised application comprises just two pitches, for 'those persons in the greatest urgent need'. It is the applicant's evidence that the whole family needs to be on the land together, and that she and her cousin John Ward need to be there to look after Susan Hefferman. If that evidence is to be accepted, then at least three pitches are required, not two. Yet it is now envisaged that the two pitches would be occupied by the applicant and her mother (and their children).
129. The application to vary the injunction is to allow the applicant 'and her family' to remain on the land until their planning applications have been fully determined and/or any appeal resolved, or alternatively for the proceedings to be adjourned to allow sufficient time for the Council to re-house the defendants in what is termed 'culturally appropriate' accommodation.
130. As I have said, the original planning application was for 5 pitches for John Hefferman, Susan Hefferman, Paige Williams, Edward Mongan and John Ward, whereas the revised planning application is for two pitches, for Susan Hefferman and Paige Williams (and their children) only. It seems to me that I must now treat the application to vary the injunction as being itself varied, so as to allow Susan Hefferman and Paige Williams and their children, but no others, to remain on the land pending resolution of the application for planning permission. Of course, neither John Hefferman nor Edward Mongan has put in evidence, and John Ward's contribution is flimsy at best. But Ms Williams has sworn in her affidavit that John Ward and she are her mother's carers. There is no explanation as to why John Ward's essential role as a carer is no longer relevant.
131. It is plain that the applicant's Article 8 rights, and those of her mother, brother and children, are engaged. However, it seems to me that the extent of the interference with those rights is limited.
132. Firstly, the occupation of the land for residential purposes was never lawful. I do not see how Susan Hefferman can ever have believed that it was, given that she was the original applicant for planning permission. That is not something that she explains in her evidence. If she did not, it strains credulity to imagine that the applicant, her daughter, could have believed otherwise.
133. Secondly, even if Ms Hefferman and the applicant did not know about the court order until 3 or 5 April or later, they knew from a very early stage that their occupation of the land was prohibited by an order of the court. They have not lived there for very long.
134. Thirdly, I can see that the applicant, Ms Hefferman and their children will suffer hardship if the order is not varied. They have no alternative site to go to. If they are forced to live by the side of the road, or in the car park of a business site in Ramsgate, from which it appears that they were evicted by order dated 21 February 2018, the dangers for the children and the difficulties for the family as a whole are obvious. But that was their position before they came onto the land.
135. I have little evidence about the impact that a refusal to vary the injunction would have on the family, beyond generalised assertion and what I regard as Dr Robinson's somewhat apocalyptic prognoses, which go a long way beyond the evidence supplied to the court by the applicant, Susan Hefferman and John Ward, and which in my judgment require some discounting.
136. The applicant is prone to depression, she is about to have a child, and she has a four or five year old son, who is not said to be other than a healthy child. The boy joined a local primary school in April. There is a risk of post-natal depression, but otherwise even Dr Robinson describes her as healthy and well-functioning (if vulnerable). I accept that the risk of depression is greater if she is obliged to move away from the land, which no doubt satisfies her hopes and aspirations for a life with her family. However, it seems to me that Dr Robinson's stated opinions of the consequences of eviction for her mental health and for her children (namely that it would be unlikely that they would ever recover) are speculative and over-stated. However, I cannot see why she should be less capable of keeping in contact with the hospital, or of attending hospital appointments, if she is compelled to leave the land.
137. Susan Hefferman is plainly disabled and in pain, and needs others to care for her; but on her evidence that requires her to be close to her daughter and her nephew, John Ward (although the new planning application implies that his presence is not as important as had been suggested). Whatever proximity is required can be achieved elsewhere. It need not be on the land. Nor can I accept that either a diagnosis of PTSD resulting from childhood abuse, or her fear of particular English travellers, can realistically be seen as weighty reasons why a move from the land should be precluded.
138. As for her son, Frankie, he seems to have a number of behavioural problems, not mentioned by Ms Hefferman herself in her evidence but strongly and perhaps slightly speculatively highlighted by Dr Robinson, and (according to his mother, at least) he is benefiting from his new school, albeit that he can only have attended it since April. I recognise the particular importance that the court must give to his interests. But I have been told almost nothing about his past, where he lived before coming onto the land (apparently not with his mother), where he went to school before he started at Homewood, how long he was there and how he was doing there (save that he was bullied), and in the circumstances it is very difficult for me to form any properly informed view of the importance of his continuing in the school where he has just started.
139. It appears that it is no longer proposed that John Ward should occupy a pitch. However, in case that is wrong, his evidence contains no explanation at all of why and when he came on the land, where he was before, why he left his previous site or home, where his children are and what their interests might be beyond the fact that, understandably, he wants to see them at weekends. His evidence raises more questions than it answers, and it is hard for me to give it very much weight, notwithstanding the elaborate analysis of his difficulties supplied by Dr Robinson.
140. I give no weight to the Article 8 rights of Edward Mongan or John Hefferman, since neither has put in evidence and neither, as it now appears, now seeks to stay on the land.
141. I have to make an assessment of the planning issues. It seems to me that Ms Sheikh is right to place weight on the decision of the Inspector on the appeal against the enforcement notice, a decision which refused consent for a single pitch. The planning merits were considered on that appeal, and the fact that the appellant was not a gypsy for planning purposes meant only that his personal circumstances did not add measurable weight in favour of planning permission. I do not consider that the personal circumstances of the applicant and her family, even if it be assumed in their favour that they would be found to qualify as travellers for planning purposes, are of such weight that they are likely to displace the Inspector's analysis of the planning merits, given in particular the need to apply the plain words of paragraph 25 of the PPTS, whatever the delays for which the Council is responsible in the formulation of a gypsy and traveller accommodation policy. Therefore I do not find that there is a real prospect of planning permission being granted.
142. Finally, I must consider what has been described as the 'overarching principle' that court orders are to be respected and obeyed. That principle is admirably explained by Mummery LJ in Brown. It is true that in this case (unlike Brown) it cannot be said, on the evidence before me, that the applicant and her family moved on to the land in knowledge of and in defiance of the court order, but the force of the principle does not depend on open defiance. Choudhury J made an order on 30 March 2018, when the land was not occupied, that it was not to be used for residential purposes. That order was made, entirely properly, to protect the planning process. The applicant and her family moved their caravans on to the land and have used it for residential accommodation after the order was made.
143. The practical effect of varying the injunction would be to allow the applicant and her family to change the use of the land until the conclusion of what might be a lengthy planning process, and to retain the benefit of occupation of the land for residential purposes, when there was no legal right to bring mobile homes onto the land in the first place and when there was a court order in place preventing the use of the land for such purposes. There must be a real risk that the variation of the injunction would send out a message that the court is prepared to tolerate defiance of the law and breach of court orders, by permitting those responsible to profit from their behaviour. As Mummery LJ said in Brown, the effect of that message would be to diminish respect for court orders, to undermine the authority of the court and to subvert the rule of law. I regard the policy considerations explained by the Court of Appeal in Brown as a factor of great importance in determining the outcome of this application.
144. Taking all those matters into account, I conclude that it would not be right to grant Ms Williams' application. The injunction granted by Choudhury J will not be varied as sought. There must be no further residential occupation of the land unless and until planning permission is granted which enables it to take place lawfully.
145. I will hear counsel on the time needed for the applicant and her family to remove their mobile homes and caravans from the land, and on any consequential orders which are required.