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Mid Bedfordshire DC v Brown

DATE: 07 Dec 2004

[2004] EWCA Civ 1709. The Court of Appeal (The Master of the Rolls, Mummery and Jonathan Parker LJJ.) reversed Tugendhat J.‘s indefinite suspension of an injunction against a gypsy site under s. 187B of the Town & Country Planning Act 1990 and emphasised the seriousness of a defendant failing to observe the order of the court. The order had originally been obtained ex parte before any caravans had been brought onto the site and the defendants had breached the injunction by setting up a residential caravan site. The suspension imposed by the trial judge (effectively to allow the planning process to run its course) would have allowed a lenghty and indefinite period of occupation and had failed to give proper weight to the serious breaches of the court’s order.

 

The injunction was brought back into effect with a short suspension to allow compliance.

 

Mummery L.J. (giving the judgment of the Court) held at para.s 7-10:

 

“7. 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.

 

8. 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.

 

9. 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.

 

10. We would add that the defendants would have attracted more sympathy from the court for their plight, if they had embarked on their plans to purchase and establish a caravan site, so that they could integrate with the community, by taking steps to obtain a site which had a reasonable prospects of being granted planning permission, by following the proper procedures for obtaining the necessary permission and by awaiting the outcome of the planning application, instead of taking the law into their own hands, flouting orders of the court and asking the court to suspend the injunction in order to relieve them of the consequences of their unlawful conduct.”

David Elvin QC and James Maurici represented the Appellant Council.