Town and country planning – enforcement notice – Injunction – Defendants erecting agricultural building in breach of planning control – Claimant local authority applying under section 187B of Town and Country Planning Act 1990 for mandatory injunction for removal of structure – Whether necessary or expedient to exercise court’s discretionary power to grant injunction – Application dismissed
The defendants were the joint registered proprietors of Cwm Farm, Narberth, Pembrokeshire where they carried on a farming business.
In October 2018, they applied to the claimant local authority to determine whether prior approval was required to erect an agricultural building suitable to house and milk a flock of goats over the winter months.
Having heard nothing from the claimant after 56 days, the defendants believed that work on the structure could commence under permitted development rights. In fact, the proximity of the livestock to a protected building (a residential dwelling) meant that the rule did not apply. However, the defendants carried out development.
In December 2018, the claimant identified breaches of planning control including the construction of an agricultural building. In 2019 and 2020, the defendants made two unsuccessful planning applications for retrospective planning permission.
In 2021, the claimant issued an enforcement notice under section 172 of the Town and Country Planning Act 1990 requiring the defendants to remove the structure within four months. A planning inspector extended that period to nine months on appeal but the defendants failed to comply. The defendants subsequently pleaded guilty to failing to comply with an enforcement notice and were fined.
The claimant applied for a mandatory injunction against the defendants pursuant to section 187B of the 1990 Act seeking the removal of a cattle shed and the covering with soil of a track made for the purposes of access.
Held: The application was dismissed.
(1) Section 187B(1) of the 1990 Act provided that where a local planning authority considered it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, it might apply to the court for an injunction, whether or not it had exercised or was proposing to exercise any of its other powers under the Act.
The court’s power to grant an injunction under section 187B was discretionary. It was not obliged to grant an injunction just because a local authority considered it necessary or expedient to do so and made the application to the court.
(2) The discretion of the court under section 187B, like every other judicial discretion, had to be exercised judicially with due regard to the purpose for which the power was conferred: to restrain actual and threatened breaches of planning control. The power existed above all to permit abuses to be curbed and urgent solutions provided where those were called for. Where it appeared that a breach or apprehended breach would continue or occur unless and until effectively restrained by law, and that nothing short of an injunction would provide effective restraint, that would point strongly towards the grant of an injunction. The court had to decide whether in all the circumstances it was just to grant the relief sought against the particular defendant: South Buckinghamshire District Council v Porter [2001] EWCA Civ 1549; [2001] PLSCS 214; [2002] 1 WLR 1359 considered.
(3) In the present case, the relief sought by the claimant was an order that the defendants demolish the shed and reinstate the land to its previous condition.
The defendants had never had permission for the erection of the shed or the construction of the track. If they initially believed that the development was permitted, their belief arose from their own failure to take proper steps to communicate with the claimant. They had known for more than five years that they had no permission for development.
However, this case did not involve flagrant disregard for planning control as the defendants had made genuine efforts to regularise the position and obtain the necessary permission. The court was prepared to take into account that the defendants had always had a genuine belief that there were no insuperable planning obstacles to what they had done and intended to do and, to that extent, they had acted in good faith.
(4) When deciding whether to use its power to grant injunctive relief, the court was entitled to look at the context. The reason why the enforcement notice was upheld was that the inspector was unable to conclude that the proposed development would not have an adverse effect on a special area of conservation. He did not find, and the claimant had not sought to prove, that the defendants’ activities had, or were likely to have, such an adverse effect.
Both the procedural history and the timescales for compliance suggested by the claimant tended to belie any contention that an injunction was required by way of an urgent intervention to prevent environmental harm. If the shed were required to be removed, the evidence showed no reason why it could not be removed within 28 days. The claimant’s suggestion that six months might be allowed made it questionable whether the court should exercise its jurisdiction to grant an injunction.
(5) The defendants remained in breach of planning control and the terms of the enforcement notice and were thereby committing an ongoing offence under section 179 of the 1990 Act, for which they were liable to repeated fines if prosecuted. Further, the claimant had the powers conferred by section 178 of the 1990 Act.
The defendants were required by law to comply with the enforcement notice. They were not entitled, and would not be permitted, to flout planning control by their pleas of hardship, anxiety or being hard-done-by by professionals or the local planning authority. Nor could they hope to remain in breach of planning control by seeking to draw out the planning process endlessly.
(6) However, the court was satisfied that the defendants had genuinely sought to address the planning objections to their development, that they continued to do so, and that they had a further pending planning application that could not be regarded as having no real prospect of success. An injunction requiring them to remove the shed and track at this stage would probably cause them serious financial harm and would be likely to be dispositive of the pending planning application by rendering it nugatory.
The evidence did not persuade the court that the present situation was causing or likely to cause environmental harm or that the claimant believed that it did. In the circumstances, the court would decline to grant an injunction.
Owain Rhys James (instructed by Department of Law and Governance) appeared for the claimant; Harry Spurr (instructed by Thrings LLP) appeared for the defendants.
Eileen O’Grady, barrister
Click here to read a transcript of Pembrokeshire County Council v Cole and another
