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23/10/2009

Thoroughly premature planning injunction…

Brentwood Borough Council v Ball & Ors [2009] EWHC 2433 (QB)

This was the hearing of an application for an injunction by Brentwood BC. The defendants were six gypsies who had together purchased a plot of land, called Plot 3, in 2009. This was designated agricultural land in Brentwood’s area.

At the time of purchase, the plot was subject to two enforcement notices from 2001, one of which required the removal of all touring caravans from the site, the permanent cessation of the use of the site for residential purposes and reinstatement of the site to a condition suitable for agriculture. That notice had not been enforced by Brentwood in the time since 2001.

Before buying the land, the purchasers had consulted a planning consultant, who had advised them that, if planning permission for use as a residential caravan site was applied for, the most likely outcome was long term temporary permission.

After purchase and over a bank holiday weekend in April 2009, the Defendants and their families moved onto plot 3:

bringing some fourteen caravans and some 30-50 lorry loads of road planings and earth moving equipment which was used to create an encampment with a new continuous roadway laid down the middle of the site with six pitches, three on either side. Earth works were carried out to create an artificial bund or screening mound along parts of the northern and southern boundaries of the site and to level parts of the site. Timber panel and concrete fencing was erected both along the boundaries of the site and within the site dividing it into the six pitches.

It was common ground that this was in breach of the 2001 enforcement notice and without planning permission. After the holiday, Brentwood served enforcement notices and then issued the application for an injunction. On the same day an application for retrospective planning permission was made. This was refused in June 2009 and an appeal lodged by the Defendants, adjourned pending these proceedings.

The Defendants argued that:
i) there had been caravans on the site for many years without the Council seeking to enforce the notices.
ii) They had liaised with the Council in seeking a plot and had sought advice on potential planning permission
iii) They were seeking a long term site for family reasons and some had previously been forced to live in highly dangerous conditions
iv) there is a likelihood, and certainly no less than a real prospect, of their planning appeal being successful.

The Court summarised the guidance in South Bucks District Council v Porter [2003] 2AC 558 on the discretion under Section 187 B of the Town and Country Planning Act 1990 as follows:

(1) The principal purpose of the jurisdiction to grant an injunction under section 187 B is to promote compliance with planning law. The power exists above all to permit abuses to be curbed and urgent solutions provided where they are called for. There is an important public interest in securing compliance with and if necessary enforcement of planning law.

(2) An injunction is the most draconian measure available to promote that end. In the ordinary case, absent particular factors pointing to the need for immediate injunctive relief, it is available as a last resort when the other remedies of enforcement notice and prosecution have been tried and found wanting, or at least where there is good reason to believe that if deployed they will be of no effect. The granting of an injunction is more likely to be proportionate where that is the case than where it is not.

(3) The greater the adverse environmental impact of the breach or anticipated breach of planning law sought to be restrained, the greater will be the case for granting an injunction. The planning history of the site is likely to be a relevant factor.

(4) Before deciding to apply for an injunction under section 187 B, it is not sufficient for the local planning authority to conclude that it is the only means of preventing an actual or anticipated breach of planning law. It is in addition necessary for it to consider fully whether there are any countervailing issues of hardship for the defendant flowing from the grant of an injunction and whether the merits of an injunction outweigh any such hardship. Where it has done so and concluded that it is nonetheless necessary or expedient to seek relief an injunction is more likely to be granted since the court must accord respect to the balance which the local planning authority, as the democratically accountable body, has struck between public and private interests. Where it has not done so, an injunction is less likely to be granted.

(5) The discretion under section 187 B is a wide one. At its heart, in a case where hardship is alleged, lies what may be a delicate balancing exercise between the public interest in upholding planning law and protecting the environment and the private interests of the defendant in avoiding undue hardship as a result of being forced, under threat of potential imprisonment, to leave his place of residence together with his family.

(6) In weighing this balance the court is not bound by the balance struck by the local authority, assuming that it weighed these two factors in the balance. It is not the function of the court to act merely as a rubber stamp to endorse the decision of the local planning authority to stop the user by the particular defendant in breach of planning control. The court is as well placed as the local planning authority to decide whether the considerations relating to what Lord Hutton called the human factor outweigh purely planning considerations.

(7) An injunction should only be granted if, in the judgment of the court, having regard to all relevant circumstances relating both to the actual or anticipated breach of planning control and to the personal situation of and any hardship to the defendants and his family, it would be a proportionate remedy. Proportionality requires that an injunction should not impose an excessive burden on the individual whose private interests are at stake, in the case of a gipsy his private life and home and the retention of his ethnic identity.

(8) The following factors may point in favour of granting an injunction: where there has been a history of prolonged or flagrant breach of planning control and persistent non-compliance by the defendant or evidence that he has played the system by wilfully exploiting every opportunity for prevarication and delay; where conventional enforcement measures have failed over a prolonged period to remedy the breach by the defendant of planning control; where there is some urgency in the situation which is sufficient to justify either the pre-emptive avoidance of an anticipated breach of planning control or the immediate removal of a dangerous or particularly offensive development or one which is causing a significant nuisance or disruption to neighbours or members of the public; where there is clear evidence of suitable alternative accommodation for the defendant and his family.

(9) The following factors may point against granting an injunction: where there has not been a history of prolonged breach of planning control, persistent non-compliance or playing of the system by wilfully exploiting every opportunity for prevarication and delay by the defendant; where conventional enforcement measures against the defendant have not been taken and found wanting; where there is no urgency in the situation (for example because of a dangerous or particularly offensive development or one which is causing a significant nuisance or disruption to neighbours or members of the public) which is sufficient to justify the compulsory removal of the defendant and his family from a site where they are residing; where the local planning authority failed fully or at all to consider or weigh in the balance the personal circumstances of the defendant and his family and any hardship which might flow from the grant of an injunction; where there is a real prospect of a successful appeal against the refusal of planning permission; where the effect of forcing the defendant and his family to leave the site would or might be to cause hardship or danger to the defendant and his family; where there is no or no clear evidence of suitable alternative accommodation for the defendant and his family.

(10) Unless at the time of giving his/her judgment, the judge would be prepared if necessary to contemplate sending the defendant(s) to prison in the event of a subsequent breach of the injunction, no injunction should be ordered. The court would not be prepared to do so without considering all questions of hardship to the defendant and his family including the availability of suitable alternative accommodation if required to move. The House of Lords did not explicitly identify what other factors the court can or should take into account in considering whether it would be prepared to contemplate sending the defendant(s) to prison in the event of a subsequent breach. In my judgment the court can and should take into account all matters which are material in the particular circumstances of the case. These could include the circumstances leading up to and reasons for the actual or anticipated breach of planning law, the defendant(s)’ record of compliance with or defiance of planning law, the extent and gravity of any environmental harm caused or likely to be caused by the breach of planning law sought to be restrained and the prospects of success of any outstanding or proposed application for planning permission or appeal against refusal of planning permission.

(11) In particular the more flagrant and persistent has been the record of ignoring or defying enforcement notices or prosecutions, the greater is likely to be the case for granting an injunction. The less serious and the less persistent such a record has been, the weaker is likely to be the case for granting an injunction.

(12) It is not the function of the Court to second guess or go behind planning decisions already taken by the local planning authority or the Secretary of State on the advice of an inspector.

(13) It is, however, legitimate for the Court when considering whether it is just and convenient to exercise the discretion to grant an injunction and if so when and on what terms to consider whether there is a real prospect that planning permission will be granted or an appeal against the refusal of planning permission will be successful.

(14) In such a case the court has the power to decide to adjourn the application for an injunction until after the result of a planning appeal is known. In my judgment it also has the power to suspend any injunction granted until and unless planning permission is refused or an appeal is unsuccessful. Alternatively in an appropriate case in my view the Court can take its conclusion that there is a real prospect of planning permission being granted into account as a relevant factor when deciding whether to exercise the discretion to grant an injunction at that time. It may be a factor contributing to a decision that the Court would not currently be prepared to contemplate send the defendant to prison in the event of breach of an injunction; or it may be that the court considers that one of the factors outweighing the detriment to the environment and/or the rule of law inherent in refusing an injunction is the hardship or detriment which might flow from requiring the defendant and his family to leave the site with all the consequent disruption to his family life in circumstances where the outcome of an application for planning permission or an appeal against its refusal might hold him entitled to reside on the site and/or carry on the conduct sought to be restrained.

The Court found that there was a real prospect that the planning appeal would be successful. In addition the Court considered that the personal situation of the occupiers raised real hardship if an injunction was granted. In the Court’s view this was not a ruthless, cynical action. There was a lack of urgency suggested by the previous failure to enforce the notices and the Court found that it would not, on the basis of the evidence, be prepared to send the Defendants to prison on breach of a putative injunction. In view of all of this, the proper course was to exercise the discretion to decline to make an injunction order. An adjournment was considered but rejected as, if the planning appeal was successful there would be no purpose, and if it was not, then:

It may be that circumstances will change in the future, either in relation to issues of hardship or in relation to the availability of suitable alternative accommodation, or in relation to environmental damage or in relation to the planning regime or in some other respect in such a way as to lead the Council to the view that the balance between hardship on the one hand and environmental damage and upholding planning law on the other justifies a further application. In that event the Council would not be prevented by the terms of this judgment or my order from making a renewed application. I do not encourage it to do so. That would be a matter for the Council.

Thanks to Chris Johnson of Community Law Partnership for the nudge.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

5 Comments

  1. Chris Johnson

    The judge in this matter, Stadlen J, is to be commended for returning to the principles that apply to the court dealing with S187B planning injunctions as laid out in the Porter case. Those principles are laid out with great clarity by the judge. I would hope that courts dealing with cases where a defence based on public law is raised will have reference back to what is said by the House of Lords in Doherty v Birmingham City Council (albeit that the Lords appear to be out of step with the European Court of Human Rights) and not get diverted by subsequent lower court decisions.

    Reply
    • NL

      Chris, was a Doherty public law defence argued in this case? I can’t see anything in the judgment, or I’d have mentioned it.

      Reply
      • Chris Johnson

        NL, I may have not made it very clear. There was no public law defence as such in the Brentwood case (it deals with the discretion inherent in s187B)but my point (made very badly I’m sure) was that the judge stuck with the leading case on the issue(i.e. Porter- where article 8 was dealt with by the way) and didn’t get diverted by loads of subsequent lower court decisions, some of which, heaven forbid, may have been attempting to fudge Porter somewhat. Likewise with Doherty.For all that Doherty fails to line up with the line of ECtHR decisions running from Connors v UK onwards, it is the leading domestic authority at present on public law defences and it is to Doherty that judges should be going.

        Reply
        • NL

          Ah – thanks Chris. That makes sense.

  2. Phoebe ap dafydd

    Thank you for this article NL. I’ve been feeling very depressed facing a high court injunction requiring us to move off our land and this had given me a tiny glimmer of hope. We cannot afford legal help so we’re going it alone and these articles are so informative! Phoebe

    Reply

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