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South Cambridgeshire District Council v Flynn [2006] EWHC 1320 QB, [2007] JPL 440

DATE: 07 Jun 2006


This case concerned part of the notorious gypsy encampment at Smithy Fen, Cottenham. In 2004 and 2005 the Secretary of State upheld enforcement notices against 17 plots, about 6 of which were still occupied.  He did not extend the period for compliance in the enforcement notices and specifically stated that temporary planning permission should not be granted. 

The local planning authority sought an eviction injunction about two weeks after C1/2006 was published. The gypsies argued that they now had a real chance of a grant of temporary planning permission (there was a substantial unmet need in the district) and that they should be allowed to remain on the site until a fresh application had been determined. 

Silber J held that, given the strength of the objections articulated by the Secretary of State, the prospects of a grant of temporary planning permission were so negligible as not to require consideration.  As to the general approach he said – 

119. On the issue of the temporary planning permission, the starting point must be the exact terms used in Porter … 

“… 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” (Simon Brown LJ at paragraph 40) 

“Nor need the court refuse to consider… the possibility that a pending or prospective application for planning permission may succeed since there may be material to suggest that a party previously unsuccessful may yet succeed …” (Lord Bingham at paragraph 30)

“If the court thought that there was a real prospect that an appeal against an enforcement notice or a fresh application by the Defendant for the requisite planning permission might succeed, the court could adjourn the injunction application until the planning situation had become clarified.  But where the planning situation is clear and apparently final the court would, in my opinion, have no alternative but to consider the injunction without regard to the merits of the planning decisions” (Lord Scott at paragraph 100).

120. I agree with Mr. Langham that a “real prospect” of success is required before the adjournment/suspension route could be appropriate so as to militate against the claimants being entitled to the relief now claimed. The ‘possibility’ of success is merely a consideration that the court “need [not] refuse to consider” in the sense that it is something that merits consideration. 

121. In my view, these new provisions [in C1/2006] mean that local planning authorities ought now to be less reluctant to grant temporary planning permission than they would have been previously. This is an important factor to bear in mind, as I will do, when considering as I have to whether to grant section 187B relief. Nevertheless, these new provisions do not enable me to conclude in this case that there is a "real prospect of success" because the Defendants are putting forward essentially the same case in support of their claim for temporary planning permission as had been recently decisively rejected by the Inspector for cogent and persuasive reasons in his report and subsequently by the First Secretary of State. 

122. Second, this was a case in which there were important findings made by the Inspector upheld by the First Secretary of State about the continued use of the site by the Defendants…. 

124. Third, there is nothing in the 2006 Circular which alters the critically important planning judgment made in this case by the Inspector and the upheld by the First Secretary of State about the severe harm to the landscape and amenity as well as the consequent breach of development plan and policy HG 23 caused by the present development. These specialist decision makers had considered this to be overwhelming and decisive in spite of the countervailing factors such as first that there had been a lack of qualitative assessment, second that there were no immediate available alternatives, third that the Defendants and their families would have the very difficult task of having to find alternative homes and fourth that the Council was assessing need and trying to find alternative sites so that in the fullness of time there would be more facilities available for gypsies. In this respect, it must not be forgotten that the Inspector and the First Secretary of State made potent conclusions not merely that they would not permit planning permission for one plot but also that no temporary planning permission was to be granted.

125. Fourth, there is nothing in the 2006 circular which requires or suggests that gypsy sites should be permitted in places where there is the level of injury to the amenities found by the Inspector. It is true that this circular requires local planning authorities to allocate or allow for an adequate number of sites in suitable locations but it is a feature of the new scheme that the these authorities would be able to enforce their policies so as to take effective enforcement action against unlawful sites in unsuitable locations. An important feature of the 2006 circular is that it gives advice and guidance to local planning authorities on how they should formulate their planning policies and then grant or refuse permission. 

126. Fifth, the existing guidance in C11/95 on temporary planning permissions is still in force and, as I have explained is specifically referred to in paragraph 45 of the 2006 Circular and it provides that an activity which causes unacceptable harm to an amenity should not be allowed even on a temporary basis. This remains the position even though, as I have explained it is now more likely that a temporary planning permission would be granted for a site, which would not eventually obtain permanent planning permission. The grant of temporary permission in this case would lead to unacceptable harm to an amenity in the light of the recommendations of the Inspector to which I have already referred. This recommendation of the Inspector upheld by the First Secretary of State, which has not been challenged by the Defendants, would constitute an additional reason why temporary planning permission will not or at least is highly unlikely to be granted in this case ...’ 

Silber J proceeded to grant an eviction injunction, giving the gypsies three months to leave the site.

Richard Langham appeared for South Cambridgeshire District Council.