Two cases this year have shown the effect of a new government circular on dealing with injunctions against Gypsies. In South Bucks DC v Smith [2006], there was an application for an injunction under s187B of the Town and Country Planning Act 1990 by the council to remove the defendants, who were occupying green-belt land in breach of planning control.

It was clear from the detailed planning history of the site that the defendants had acted in flagrant breach of planning control for many years. The judge held that but for two developments he would have granted the injunction. These developments were the issue of the new government circular 01/2006 setting out government policy in respect of Gypsies and travellers and the fact that, pursuant to its issue, the defendants had made a further planning application.

The judge’s decision

The judge accepted submissions that the planning position had changed due to the issue of the circular. While there may have been no prospects of obtaining permission prior to this, new responsibilities on local authorities meant that permission may be granted. A further consideration was that while in the past the council had not accepted the status of the first defendant as a Gypsy, the new circular undoubtedly brought him within it and this would have an impact on whether an injunction should be granted. The judge’s findings are outlined in the box below.

This decision is of cold comfort to local planning authorities. It appears to suggest that notwithstanding the breaches and enforcement of previous years, if an application for planning permission is put in following the issue of the circular, the slate is wiped clean until such time as the application and any subsequent appeal to the Secretary of State is determined and any other appeals are exhausted. By this time of course, rights under the Human Rights Act would be further strengthened, making it even more difficult to obtain an injunction.

Other decisions

Other recent decisions prior to Smith do not support a view that injunctions should be suspended in this way awaiting the outcome of a planning decision, particularly such as in this case where it is so very early on in the planning process. In addition, it is not clear that the circular warrants such a sweeping effect over the prospects of planning permission being granted. In particular, this was green belt land. The circular does not change the position regarding granting planning permission in the green belt and expressly states that green-belt policies must be upheld. Those policies were in place long before the recent circular and the question of whether any very special circumstances existed to override them would have already been considered in the many stages of the planning process the defendants had already been through.

There were moves to rely on the judgment in Smith very recently in another injunction case. In Wychavon DC v Connors and Rafferty & anr [2006] it was attempted to pressure the Council into suspending an existing injunction which had been breached with reference to the decision in Smith. It was contended that this decision, together with the new circular, meant that the council should agree to suspend the terms of the injunction, which had been obtained several months earlier, preventing Gypsies moving on to a piece of land.

The Council resisted this and an application to vary the injunction was made. The Council made an application to commit the defendants for breaching the terms of the injunction.

The defendants argued on much the same lines as in Smith, mainly that they should be allowed to stay on the land because they had a planning appeal pending and in light of the new circular they were likely to get planning permission.

The court’s decision in Wychavon DC v Connors and Rafferty & anr

The court dismissed this argument and gave a robust judgment, stating that court orders could not be breached with impunity. In addition the judge considered that the circumstances in Smith were very different as the defendants had been on site for many years. The judge commended the approach of local authorities obtaining injunctions before the breach of planning control takes place. In a strong judgment the judge specifically made clear that he was not going to delve deeply into the planning merits, but that unless there was a real prospect of planning permission being granted he would not suspend the injunction. Taking a broad view of the facts, he did not consider that this was the case, notwithstanding he had been referred to the new circular.

Conclusion for practitioners

Although Smith appears to be wideranging in its effect, in one of the first cases after it, it is plain that the court is prepared to confine it to its own narrow facts.

This is plainly of relief to councils up and down the country which otherwise could expect injunctions obtained by them to prevent breaches of planning control to be contravened with impunity. Indeed, the consequence of Connors and Rafferty’s argument being accepted would have meant that all such injunctions would be rendered otiose, since it would always be possible to breach them and contend that they should remain in breach of them and unlawfully on site pending the determination of any planning appeal. This would also have deeply undermined public confidence in court orders. It remains to be seen if Smith will have any wider application than its own case or whether in future other judges too will confine that decision very much to its specific facts.

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