Case No: B2/2008/0931
Neutral Citation Number: [2008] EWCA Civ 620
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CANTERBURY COUNTY COURT
(HIS HONOUR JUDGE MURDOCH QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 21st May 2008

Before:

LORD JUSTICE MAY,
LORD JUSTICE LLOYD
and
LORD JUSTICE LAWRENCE COLLINS
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Between:

	CANTERBURY CITY COUNCIL	Claimant/
Respondent	
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HILL	Appellant/
Defendant	

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THE APPELLANT APPEARED IN PERSON

Mr P Tapself (instructed by Legal & Democratic Services Canterbury City Council) appeared on behalf of the Respondent.
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Judgment
Lord Justice May:

1.	On 25 April 2007 HHJ Murdoch QC granted Canterbury City Council an injunctive order requiring Mrs Hill, the appellant, to remove certain buildings and structures from land north of Heart’s Delight, Covet Lane, Barnham in Kent and to discontinue certain uses of the land.  The order required her to do this by 4 pm on 25 May 2007, which is almost to the day a year ago.  

2.	The orders were made to remedy breaches by Mrs Hill of planning control. Mrs Hill may have sought to appeal this order, but did not in the event do so, and accordingly that order stands.  She did not comply with the order by the stipulated date.  During the autumn 2007 there were at least two inconclusive hearings towards enforcement of it.  By the time of the hearing before the judge on 11 January 2008, Mrs Hill had belatedly complied with parts of the order but had not complied with other parts.  She had by then, for instance, removed a stable building and a water bowser, but the judge found that she was in continuing breach of 25 April 2007 order, first, by failing to remove internal fencing and, second, by failing to remove pig sheds.  He made a committal order for those breaches for twenty-eight days’ imprisonment, but he suspended it on condition that Mrs Hill remove the internal fences and the pig sheds by 4 pm on 11 March 2008.  

3.	In early February 2008 she made some kind of an application which the judge appears to have dealt with by indicating that it required to be made to the Court of Appeal, and then, on 29 February 2008, the judge heard an application by Mrs Hill to set aside his committal order.  This appears to have been on the basis, first, upon additional evidence to the effect that the pig sheds were mobile and, second, that an application for planning permission in about October 2007 ought to have been considered by the City Council without payment of a fee.  The judge dismissed the application to set aside the earlier order but stayed the committal order pending an appeal to the Court of Appeal which Mrs Hill is entitled to make to this court without permission -- it being an appeal against an order of committal.  

4.	The judge remained satisfied that the pig sheds were not mobile, and he was not persuaded to set aside the order on the ground that removing the internal fences would allow the pigs to churn up the entire area, which was said to include an area dedicated to wild flowers.  An earlier contention by Mrs Hill that there were bats and nesting swallows was disproved by expert evidence.

5.	Mrs Hill’s grounds of appeal again complained that no fee should have been payable upon the application which she made in October and that the City Council did not deal with that application.  She also complains that the judge did not accept her evidence about the mobility of the pig shelters.  In my judgment, the finding by the judge that the pig sheds were not mobile is a proper finding of fact open to him on the evidence which this court will not disturb on appeal.  As to the application for planning permission and complaint about the fee, this is in fact dealt with in paragraphs 9 and 10 of the affidavit of James McEwen of 10 December 2007.  He exhibits a copy of the application which is a prior notification for agricultural development dated 10 October 2007.  He makes the points, first, that there are no relevant permitted development rights because such rights only exist on units of five hectares or more (which this unit is not) and, secondly, that a planning inspector dealt with the matter of fences in a decision of 12 July 2005 requiring them to be removed, and thirdly, that an appeal against an enforcement notice was dismissed and the enforcement upheld.  On this basis the matter of a fee becomes irrelevant.  The application has been dealt with by means of the affidavit.

6.	What this all boils down to is that the order of 25 April 2007, requiring Mrs Hill to remove the pig sheds and to remove the internal fencing, has not been complied with more than a year later; that the contention that the pig sheds were mobile has been dealt with and dismissed by the judge in a way which is not amenable to appeal to this court, and that, whatever Mrs Hill may have to say about an application for planning permission firstly has been dealt with on the evidence, but secondly does not impinge on the fact that the court order which stands of April 2007 remains uncomplied with.  In those circumstances and for those reasons I would dismiss this appeal.  

Lord Justice Lloyd: 

7.	I agree

Lord Justice Lawrence Collins: 

8.	I also agree. 

Order:  Appeal dismissed