In Chichester District Council v Sullivan & Ors (Rev 1)  EWHC 2154 (QB) HHJ Auberbach considered the impact of the coronavirus pandemic on a decision to grant a mandatory injunction requiring the removal of caravans and mobile homes in place in breach of planning restrictions. The judge held that the impact of the pandemic had to be considered, however there was no evidence that it would prevent compliance in this case.
“No reader of this decision needs to be told by me how extraordinary and pervasive an event the Covid-19 pandemic is, in terms of its health, social and other impacts, in both gravity and scale. It is absolutely right, in principle, that its impact on this application calls for distinct consideration, and very careful appraisal.”
The Proportionality Exercise – Subject to the Pandemic
I can begin now to engage in what I call the proportionality exercise – the process of standing back and looking at the overall picture and balance of considerations, in favour of or against granting an injunction or injunctions, or doing so in particular terms. That includes the need in particular to ensure that any interference with the Defendants’ Convention rights is no greater than is, in my judgment, necessary to the purpose of the injunction, and proportionate.
Ms Hawksley was commendably realistic and candid in her stance. She recognised that she would struggle to convince the Court not, at least, to grant an inhibitory or status quo injunction, restraining any further development (by way of building work or increased domestic use) from taking place in the future. But that is not the real battle ground in this case. Given what has already occurred, and the current position, such an injunction would not by itself really give the Claimant any material relief from its point of view. More significant, therefore, was Ms Hawksley’s candid acknowledgement that, in the absence of the pandemic, she would struggle to convince the Court not to grant the mandatory injunction in both its limbs – cessation of domestic use and dismantling of the physical development – as well.
She was right about that. The breaches of planning control are extensive, pervasive and long-standing. Having regard to the status of the site within an AONB they are very serious. The matter has been very thoroughly examined, and all of this is very fully set out, in the Inspector’s report. The breaches are intentional, have continued since she reported, and all other efforts to curb or reverse them have failed. The Claimant has a compelling case that nothing short of an injunction will provide effective restraint, and that these factors together point strongly towards the grant of one, in principle.
The lack of available alternative accommodation in terms of gypsy/traveller pitches is an important and weighty consideration, because of the real and significant difference it makes to the impact on the occupier-Defendants’ Convention rights, generally and having particular regard to their way of life. As I have noted, I proceed on the assumption that, at least to start with and for an uncertain period, some, or all of them, may go on the road. The impact on the children in particular will be significant. But while the lack of alternative pitches is undoubtedly therefore a weighty consideration, as Ms Hawksley acknowledged, it is not a trump card. It must still be weighed in the balance against the considerations on the other side.
In summary, applying the guidance in the authorities, and bearing in mind the statutory purpose for which the power has been conferred, these considerations would not be sufficient alone to outweigh the compelling features pointing towards the grant of a mandatory injunction in this case. However, the fact that occupiers, or some of them, may be out on the road, and the impact, in particular, on the lives of the children, are considerations which may have an impact on the terms of any injunction, in this case, in particular, the time which I allow for compliance.
However, Mrs Hawksley submits that the impact of the pandemic makes all the difference, and tips the scale away from the grant of any sort of mandatory injunction. I therefore turn to this aspect next.
Impact of the Pandemic
The following key points or themes emerge from the overall written and oral submissions on this general topic.
Ms Hawksley acknowledged that the initial lockdown imposed in March, and the associated legal restrictions and Government guidance, have been eased. But, she submitted, I can take judicial notice of the fact that a second wave is highly likely, and that there may be further local outbreaks leading to increased risk and re-imposition of local restrictions, at any time.
Secondly, she said that the pandemic, and associated restrictions, have a distinct impact on members of the gypsy and traveller communities.She referred to a letter from the Minister of State for Housing, Communities and Local Government to Local Authorities, earlier this year, on mitigating the impacts of the pandemic on such communities. This states that some gypsies and travellers are particularly vulnerable and may have been asked to shield. It refers to such matters as the challenges of observing social distancing on many sites, and the impact of closure of leisure centres and recycling centres.
That document refers in turn to Local Government Association guidance on protecting vulnerable people during the outbreak. Ms Hawksley highlighted that this places gypsy and traveller communities in the category of those who may suffer from a reduction of usual services. She also referred to guidance from the Welsh Government which, whilst obviously not applicable to England, she commended for its insight and approach into the increased risks and support needs faced by gypsies and travellers during the pandemic.
Ms Hawksley said that the pandemic created increased risks to, and difficulties for, travellers on the move, with regard to access to toilet and washing facilities, and greater vulnerability to hostile treatment. Track and trace would not work for them. Healthcare, if needed, would be harder to access. Restricted access to refuse sites could also affect the Defendants’ ability to comply rapidly with any order. Because of the distinct impact of the pandemic on the gypsy/traveller community it was, submitted Ms Hawksley, a discriminatory act to seek to send the Defendants out on the road.
Ms Hawksley submitted that, in view of the pandemic, the Court should not be granting a mandatory injunction at this time. If it refused one, the Claimant would not be precluded from reapplying (though she said that it should only do so plot by plot – a point to which I will come) as and when the pandemic situation had improved. Alternatively, the Court could stay any mandatory injunction for a suitable period – she proposed a year. Alternatively, the Court could provide that its order would only take effect as and when a given Defendant was offered a permanent pitch.
Ms Hawksley also referred to the Practice Direction of 26 March 2020, staying possession proceedings for 90 days, which she said had since been extended to 31 August 2020. Though not applicable, this, she said, showed that a stay was the right way to go. Whilst accepting the serious nature of the planning harm within an AONB, which could not be gainsaid and must be resolved, the land, said Ms Hawksley, can be restored; people, she said, can’t.
In reply on this aspect Mr Lewis made the following principal points.
First, we are now in a very different situation than we were following lockdown in March. As to the future, although there are some additional localised restrictions in some parts of the country, no evidence had been put before the Court to suggest that the rate of infection in or around Chichester is any higher than the current average. The Court could take judicial notice that a second wave in winter is a possibility, but anything beyond that would require evidence. The Court could not, as Ms Hawksley had suggested, take judicial notice of the proposition that a second wave is “highly likely”.
At present, said Mr Lewis, the general level of risk and restriction is such that the pandemic is not a reason to defer, or stay, the proceedings, or any order, generally, or on the sort of timescale being suggested by Ms Hawksley. Leisure centres and refuse centres have reopened, albeit with restrictions. There is no reason to believe the Defendants could not access the resources needed to clear the Site. The Court could, if it was concerned about them having sufficient time to complete the removal work, stagger the cessation of use, and then final removal of remaining infrastructure.
Even recognising the possibility of a second wave in winter, there was now a window in which action could and should be taken, given the longstanding, extensive and serious breaches of planning control in this case. It would be neither necessary nor proportionate to put off time for compliance until the risk from Covid-19 entirely disappears – something that could be years away.
As to the suggestion of discrimination in this respect, what mattered, said Mr Lewis, was the actual evidence of individual vulnerabilities, and the Claimant’s approach to that. The Claimant had proactively enquired and given opportunities for the Defendants to raise any personal vulnerabilities or other circumstances affecting themselves or family members. The Claimant had considered and responded to all the information in fact provided, on a case by case basis. It had taken its obligations seriously and fully discharged them under the Public Sector Equality Duty as well as under Article 8. These proceedings were not a forum for an Article 14 challenge.
Mr Lewis said that the stay on fast-track civil possession proceedings does not provide an analogy that supports the Defendants. He pointed out that it expressly does not apply to injunctions.
Mr Lewis said that, if the Court granted a mandatory injunction and then there was a dramatic development, such as a serious local outbreak, leading to the imposition of local restrictions, the Claimant would of course take a responsible approach, and be prepared, if appropriate, to consent to any necessary variation of the terms of the order. The Defendants could in any event apply for one if they believed they had good cause. This provided a safety net in respect of contingencies of that sort.
No reader of this decision needs to be told by me how extraordinary and pervasive an event the Covid-19 pandemic is, in terms of its health, social and other impacts, in both gravity and scale. It is absolutely right, in principle, that its impact on this application calls for distinct consideration, and very careful appraisal. I have navigated my way to a conclusion on this aspect in the following way. First, I have considered what I would do in the absence of the pandemic. Then I have considered the impact of the current pandemic situation. Then I have considered the impact of what the future may hold.
Addressing the first of those questions, for reasons I have given, undoubtedly, in the absence of any pandemic implications, I would in principle grant the injunction sought, both inhibitory and mandatory, and in both its limbs – requiring the domestic use of the land to cease and what I may call the infrastructure to be removed.
Given the long history of persistent and extensive breach, the previous enforcement orders, the extended period that was allowed by the Inspector but simply not taken, and the time that has passed since even the period that she allowed had expired, I do not think the Claimant’s general starting point of three months was wrong. Nevertheless, as I have described, it has also rightly and sensibly modified its approach in certain individual cases.
I am, as I have noted, also mindful of the particular impact more generally on those families with school-age children. Notwithstanding the extensive nature of some of the infrastructure, I am not persuaded that particularly longer is needed for it to be removed; but staggering the mandatory elements is prudent. That is, not least, so that some infrastructure, such as the surfacing on the track, which may facilitate the orderly removal of caravans, mobile homes and other infrastructure, could potentially be left until last.
To take account of the impact on those families with school-age children, and the pregnant women I have mentioned, a more extended period to comply would be warranted in their cases; and I consider that the best and most practical approach is to extend this not just to them, but across the board. On that basis, the period of time I would allow for all domestic occupation of the Site to cease, and therefore for all the caravans, mobile homes and other appurtenances, to be removed, is by the end of the year, on 31 December 2020. I would then allow an extra month for all remaining physical development to be removed, and the land reinstated, by 31 January 2021.
I turn to consider the current situation in relation to the pandemic. Although the Government continues to make adjustments, the overall restrictions and guidance currently applicable in relation to England have been considerably eased compared to what was imposed in March. Although there have been local outbreaks and resurgences in certain parts of the country, with associated re-imposition of more severe local restrictions, it was not suggested to me that this applies now, or is foreshadowed, in Chichester or its immediate environs.
I have no reason to doubt the Claimant’s evidence that public toilets are not currently restricted. I accept of course, that these do not offer facilities for bathing and personal hygiene, but I can take judicial notice of the fact that leisure centres have reopened, albeit on a reduced scale and with restrictions. Refuse facilities have also reopened, albeit, again, with restrictions. I do not have any evidence to suggest that the Defendants will, on account of the pandemic, have greater difficulty dismantling, removing, and properly disposing of, the infrastructure on the timescale that I envisage.
I have reflected on the Governmental guidance to which I have referred, but the letter from the Minister of State, in particular, seems to have been written at an earlier stage of the pandemic, when more stringent restrictions applied in England; and I have endeavoured to take on board the wider insights offered by the Welsh material, in my approach to this aspect.
There is also valuable discussion of the wider social and indeed historical context in relation to the situation and culture of gypsy/traveller communities in some of the other authorities that I have mentioned. Gypsies and travellers experience prejudice, hostility, and worse, just because of who they are; and it would be naïve not to suppose that the pandemic may exacerbate the risk of such treatment, particularly for those who are on the move. But I do not accept Ms Hawksley’s invitation to find that maintaining this application in current circumstances is itself an act of discrimination by the Claimant because the Defendants are gypsy/travellers. The Court would not grant an order that facilitated an act of discrimination; but there is no evidence before me to support that proposition in this particular case.
Reflection on the stay on possession proceedings does not further Ms Hawksley’s case. Injunctive relief was excluded, and the current extension, which, to my understanding is under CPR 55.29, will, I believe, expire on 23 August 2020. Thereafter, the ongoing requirement will be for information about any individual impacts of Covid-19 on the individual defendant(s) in a given case, to be put on the table.
Pausing there, after careful consideration, I am not persuaded that the current situation in relation to the pandemic tips the balance against the grant of injunctive relief that would require the Defendant-occupiers to leave within the timescale of the end of the year, that I have otherwise arrived at.