Town and country planning – Planning control – Injunction – Defendants and children occupying land in breach of planning control – Claimant seeking injunctive relief – Parties agreeing terms of injunction – Whether necessary and expedient for claimant to seek to restrain breaches of planning control by injunction, rather than other methods of enforcement – Whether proportionate to grant injunction sought – Claim allowed
The third defendant company was the registered owner of land known as Long Leys, Fanshaws Lane, Brickendon, Hertford. The fourth defendant was a director of that company.
The land was occupied by the first and second defendants, who had Gypsy and Traveller status, and lived there together with their two children, aged 10 and 14. Their youngest child was in her last year at the local primary school. Their older child went to a secondary school.
The land was located within the metropolitan green belt and a conservation area. It was an area of agricultural pastureland and woodland and formed part of the Long Leys Estate. The land was outside the village of Brickendon and was located close to a Grade II listed property and several residential properties.
The land was occupied by a large chalet-style caravan; a touring caravan, a large camper van, a number of motor vehicles and a low loader, along with items of residential paraphernalia. An area of hardcore had been laid on the land to provide a base for the chalet-style caravan and a parking area.
The claimant local authority argued there had been actual and apprehended breaches of planning control at the land and brought a Part 8 claim seeking final prohibitory and mandatory injunctive relief pursuant to section 187B of the Town and Country Planning Act 1990.
Held: The claim was allowed.
(1) A local planning authority could not exercise the power to apply for an injunction under section 187B unless it considered it “necessary or expedient” to restrain a breach of planning control by seeking an injunction, rather than by other methods of enforcement.
The need to enforce planning control in the general interest was a relevant consideration and in that context the planning history of the site might be important. The degree and flagrancy of the breach of planning might be critical. Where conventional enforcement measures had failed over a prolonged period, the court might more ready to grant an injunction.
An anticipatory interim injunction might be preferable to a delayed permanent injunction, for example, where stopping a Gypsy moving on to a site in the first place, might involve less hardship than moving him out after a long period of occupation.
While it was not for the court to question the correctness of planning decisions which had been taken, the court should come to a broad view as to the degree of environmental damage resulting from the breach and the urgency or otherwise of bringing it to an end.
The achievement of the legitimate aim of preserving the environment did not always outweigh countervailing rights (or factors). Injunctive relief was unlikely to be granted unless it was a commensurate remedy in the circumstances of the case. It was the court’s task to strike the balance between competing interests, weighing one against the other: Ipswich Borough Council v Fairview Hotels (Ipswich) Ltd [2022] EWHC 2868 followed.
(2) In relation to the best interests of any children affected by the claim, in ZH v Secretary of State for the Home Department [2011] UKSC 4, the Supreme Court held that although the best interests of a child had to be treated as “a primary consideration”, that was not the same as “the primary consideration” or “the paramount consideration”. The best interests of the child were not determinative of the planning issue. Nor did respect for the best interests of a relevant child mean the planning exercise necessarily involved merely assessing whether the public interest in ensuring planning controls was maintained outweighed the best interests of the child. Most planning cases would have too many competing rights and interests, and would be too factually complex, to allow such an exercise: Stevens v Secretary of State for Communities and Local Government [2013] 2 EGLR 145, Great Yarmouth Borough Council v Al-Abdin [2022] EWHC 3476 (KB); Vale of White Horse District Council v Winter [2022] EWHC 2313 (QB); Epping Forest District Council v Halama [2023] EWHC 2906 (KB); and Chelmsford City Council v Mixture [2024] EWHC 1006 (KB) considered.
(3) In the present case, as a result of further negotiations between the parties, it was agreed the court should make the injunction order in the terms agreed by the parties. Notwithstanding that agreement, the court had to consider whether or not it would be proportionate to grant the injunction, taking into account all of the circumstances of the case.
The first, second and third defendants had all been aware their activities in relation to the land constituted a breach of planning control from 2019 onwards. They had failed to comply with an enforcement notice issued by the claimant and took no steps to secure alternative accommodation. They ignored the assistance offered by the claimant to find alternative housing. They also ignored the warning given as to the prospect of an injunction being sought if there was no compliance with the enforcement notice.
Planning permission had been refused because the development constituted inappropriate development within the green belt for which very special circumstances had not been demonstrated. The court was satisfied that the material change of use of the land for the stationing of caravans used for residential purposes was harmful to the intrinsic character and appearance of the area.
(4) The needs of the children and the overall accommodation needs of the family were extremely important countervailing considerations. However, no evidence had been placed before the court as to any particular hardship that they would encounter as a result of the injunction.
In all the circumstances, the proposed injunction was necessary to uphold the integrity of the planning system as conventional enforcement measures had proven ineffective in resolving a clear breach of planning control.
Whilst the injunction would have an impact on the lives of the defendants, it was a commensurate and proportionate remedy. The evidence demonstrated that the breaches of planning control would continue unless and until effectively restrained by the court and that nothing short of an injunction would provide effective restraint.
Mark O’Brien O’Reilly (instructed by Sharpe Pritchard LLP) appeared for the claimant; Charles King (instructed by Couchman Hanson Solicitors) appeared for the defendants.
Eileen O’Grady, barrister
Click here to read a transcript of East Herts District Council v Flynn and others
