Breaches of planning control — Injunctions granted — Whether jurisdiction existed under section 187B of the Town and Country Planning Act 1990 to grant mandatory injunctions — Whether structure complained of was ‘incidental to the enjoyment of the dwellinghouse as such’
The
appellants, a father and son, occupied 42 St Oswald’s Road, Norbury, London
SW16, an ordinary semi-detached house in a quiet residential area. The
respondents (‘the council’) were the local planning authority for the area. The
son was the registered proprietor of the property at the Land Registry. In
November 1992 the council received a complaint that a 14-ft long fibreglass
replica of a fish had been fixed to the roof of a single-storey extension at
the property. This had been done by the father without planning permission. In
January 1993 he submitted a planning application seeking retrospective consent
for the
State for the Environment. At the date of these judgments the outcome of that
appeal was not known. At various other times the father stationed replica items
on and about the property without planning permission, attracting the service
of enforcement notices by the council. In March 1993 he put up scaffolding
round the front of the property and the council concluded, from information
received, that he intended to put a replica of an aircraft on the scaffolding.
On an ex parte application, they obtained an injunction restraining the
appellants from putting up any such replica. In due course, however, a large
wooden replica of a Spitfire was fixed to the roof of the property. The council
made a further application to the county court for injunctions against the
appellants and, after an effective inter-partes hearing, the county
court granted the following:
(a) an injunction restraining the defendants from
causing or permitting any structural alterations or additions other than the
fish the subject of the pending planning appeal to be affixed to the exterior
of any building at 42 St Oswald’s Road in breach of the requirement for
planning permission, and
(b) an injunction requiring the defendants to
remove the replica Spitfire from any open land or from the exterior of any
building at 42 St Oswald’s Road
The appellants
appealed to the Court of Appeal contending: (1) There should be no injunction
against the son. (2) There was no jurisdiction under section 187B of the Town
and Country Planning Act 1990 to grant a mandatory injunction, merely power to
grant negative injunctions. Accordingly, there was no jurisdiction to grant
injunction (b). (3) Any quia timet injunction must make it quite plain
to the defendant what he is forbidden from doing. Injunction (a) was too
uncertain and failed to do that. (4) The placing of the replica Spitfire on the
land, and in particular in the back garden of the property, without any
structure would be within section 55(2)(d) of the 1990 Act — being ‘the use of
any land within the curtilage of a dwellinghouse for any purpose incidental to
the enjoyment of the dwellinghouse as such’ — and so would not amount to
development.
was dismissed.
(1) The inference was overwhelming that the son
had permitted his father to do all that the latter had done and accordingly if
the injunction stood against the father it should stand also against the son:
see pp32H-33A.
(2) Logically it might be correct to say that a
breach of planning control which had already happened could not be restrained
in the sense of being prevented or stopped, but section 187B was drawn on the
statutory assumption that an actual as well as an intended breach of planning
control could be restrained by injunction. Therefore the word ‘restrain’ must
be given a wider, and in the context, more natural meaning. Once that was done
it was obvious that mandatory injunctions were not excluded: see p35B-C.
(3) Injunction (a) was not a completely general
injunction against infringing planning law. It was merely concerned with
prohibiting future structural alterations or additions to the exterior of the
property in breach of planning law. The appellants should have no difficulty in
deciding whether whatever they wanted to put up did or did not require planning
permission: see pp35H-36A.
(4) The enjoyment derived from keeping the
replica Spitfire on the land at the property could not be described as
‘enjoyment of the dwellinghouse as such’. Furthermore, the concept of what is
‘incidental to the enjoyment of the dwellinghouse as such’ involved an element
of objective reasonableness. It could not rest solely on the unrestrained whim
of the occupier of the dwellinghouse: see p36F-G.
to in the judgments
Staver Co
Inc v Digitext Display Ltd [1985] FSR 512
Video
Arts Ltd v Paget Industries [1986] FSR 623
Wallington
v Secretary of State for Wales (1990) 62
P&CR 150; [1991] 1 PLR 87
Appeal against
decision of Mr Recorder Barnett QC
This was an
appeal against an order of Mr Recorder Barnett QC made in Croydon County Court
on July 22 1993, whereby he granted certain injunctions.
Underwood and Lisa Giovannetti (instructed by Amphlett Lissimore) appeared for
the appellants, John Gladden and Gary Gladden.
Gray QC and Michael Druce (instructed by the solicitor to Croydon London
Borough Council) appeared for the respondents.
following judgments were delivered.
DILLON LJ: I give judgment now in Croydon London Borough Council v Gladden.
This appeal
also concerns section 187B of the Town and Country Planning Act 1990, which I
set out in my judgment in Runnymede Borough Council v Harwood and
do not now repeat. In this case the roles are reversed, in that the local
planning authority, in this case Croydon London Borough (‘the council’) are the
respondents and not the appellants.
The appellants
are the defendants (Mr John Gladden and his son Mr Gary Gladden). The appeal is
from an order of Mr Recorder WE Barnett QC, made in Croydon County Court on
July 22 1993, whereby he granted certain injunctions against the appellants.
The council
complains of certain acts of the first defendant John Gladden, at a property 42
St Oswald’s Road, Norbury, London SW16, which is within the council’s area. 42
St Oswald’s Road was, before these acts took place, an ordinary semi-detached
house in a quiet, residential part of the council’s area. It is, as I understand
it, the home of both defendants, but the registered proprietor at the land
registry is actually the second defendant, Gary Gladden, who is the 18-year-old
son of Mr John Gladden.
It is
therefore submitted and I mention this first because I can deal with it very
briefly, that even if the injunction against Mr John Gladden stands there
should be no injunction against Mr Gary Gladden. As I see it, the inference is
overwhelming that Mr Gary Gladden has permitted his father to do all that the
latter has done. Accordingly, if the injunction stands against the father it
should stand also against the son.
The history of
events clearly indicates, in my judgment, a deliberate policy on the part of Mr
John Gladden to annoy the council and, to that end, to exploit whatever gaps he
can find in planning enforcement law. Indeed, I believe Mr John Gladden would
make that his boast.
So far as the
council are concerned, the story begins in November 1992 when the council
received a complaint that a 14-ft long fibreglass replica of a fish (‘the
fish’) had been fixed to the roof of a single-storey extension to 42 St
Oswald’s Road. This had been done by Mr John Gladden without planning
permission.
On January 11
1993 Mr John Gladden submitted a planning application seeking retrospective
consent for the retention of the fish. This was refused by the council on March
9 1993, but Mr Gladden appealed and a public inquiry on his appeal was held in
the latter part of January 1994. The outcome of the appeal is not yet known,
but the injunctions appealed against do not relate to the fish.
In the
meantime outsize Christmas decorations were put up outside 42 St Oswald’s Road
over Christmas 1992. These were removed in January 1993.
In March 1993
Mr John Gladden put, in the front garden of 42 St Oswald’s Road, large replicas
of a military tank and of a rocket-type missile and a large inflatable figure
of Winston Churchill. All this was without planning permission.
The
rocket-type missile and the figure of Churchill were removed in compliance with
an enforcement notice served by the council on March 30 1993. They were then
placed on vehicles parked in the road.
A further
enforcement notice was served by the council in respect of the military tank on
May 14 1993. This was appealed against, but the appeal has now been withdrawn
and the tank removed.
Mr Gladden has
also put up large notices offensive to the council in the front garden of 42 St
Oswald’s Road. These have since been removed.
Also, in March
1993, Mr Gladden put up scaffolding round the front of 42 St Oswald’s Road. The
council concluded, from information received, that he intended to put a replica
of an aircraft on the scaffolding. Accordingly, on ex parte application,
the council obtained an injunction restraining the defendants from putting any
replica of an aircraft on the scaffolding.
In due course,
however, it transpired that the replica, a large wooden replica of a Spitfire,
had been fixed to the roof of 42 St Oswald’s Road and not to the scaffolding.
The effect, as shown by the photographs in evidence, is bizarre.
There is also
hearsay evidence in the shape of a newspaper report of Mr Gladden saying:
‘Every time they make me take something down I will put up something else’. In
addition, in response to a question in a
erect or place any other structures on the land?’ — Mr Gladden’s unqualified
answer was: ‘Yes’.
In these
circumstances the council made a further application to the county court for
injunctions against the defendants and, after an effective inter partes hearing,
the recorder granted the injunctions now appealed against, that is to say: (a)
an injunction restraining the defendants from causing or permitting any
structural alterations or additions other than the fish the subject of the
pending planning appeal to be affixed to the exterior of any building at 42 St
Oswald’s Road in breach of the requirement for planning permission, and (b) an
injunction requiring the defendants to remove the replica Spitfire from any
open land or from the exterior of any building at 42 St Oswald’s Road.
Mr Gray QC
accepts that by way of clarification of the words ‘. . . in breach of the
requirement for planning permission’ in injunction (a) there should be added the
words ‘. . . or otherwise then as permitted by Schedule 2 Part 1 of the General
Development Order 1988’.
The injunction
(a), as granted by the recorder, was less wide than had been sought in the
council’s application of July 7 1993. The injunction (b) was granted by the
recorder on firm findings by him that the fixing of the Spitfire replica to the
roof required planning permission and no application for the requisite planning
permission had ever been made.
These findings
are plainly right and have not been challenged on this appeal. It is my
understanding that the Spitfire has been taken down from the roof in compliance
with the injunction to that effect.
The points
taken for the defendants on this appeal, apart from the point with which I have
already dealt, that any injunction granted should not extend to Mr Gary
Gladden, are three:
1. There is no
jurisdiction under section 187B to grant a mandatory injunction, merely power
to grant negative injunctions. Therefore, there was no jurisdiction to grant
injunction (b) requiring the replica Spitfire to be removed from the roof of 42
St Oswald’s Road.
2. Any quia
timet injunction must make it quite plain to the defendant what he is
forbidden from doing. Injunction (a) is too uncertain and fails to do that.
3. Even though
the affixing of the replica Spitfire to the roof of 42 St Oswald’s Road was
development within section 55 of the Act as being ‘the carrying out of building
engineering mining or other operations’, the placing of it hereafter on the
land and, in particular, in the back garden to 42 St Oswald’s Road without any
structure would not be development of that nature and, indeed, would be within
the exemption in section 55(2)(d) of the Act of ‘the use of land within the
curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the
dwellinghouse as such’.
Argument 1
The basis of
the argument is that under subsection (1) section 187B only applies where it is
necessary or expedient ‘for any actual or apprehended breach of planning
control to be restrained by injunction’. Under subsection (2) the court’s only
power is to grant an injunction ‘for
is essentially negative and on its natural meaning cannot cover the grant of a
mandatory injunction.
Under section
171(a) of the Act the carrying out of development without planning permission
constitutes a breach of planning control. There is a breach when building
operations, etc, are carried out, or where there is a material change of use,
in each case without planning permission. That gives the date of breach and
strictly there is a once and for all breach in either case and not a continuing
breach.
Logically it
may be correct to say that a breach of planning control which has already
happened, ie a ‘once and for all’ breach and not a continuing breach cannot be
restrained in the sense of being prevented or stopped. But section 187B is
drawn on the statutory assumption that an actual as well as intended breach of
planning control can be restrained by injunction. Therefore, the word
‘restrained’ must be given a wider, and in the context more natural, meaning.
Once that is done it is obvious that mandatory injunctions are not excluded.
It is also
urged for the defendants that the grant of an interlocutory mandatory
injunction is a very serious matter, but its seriousness depends on what is
ordered to be done and, indeed, on what the issues in the proceedings are. A
mandatory injunction to remove a vehicle which was obstructing a right of way
would not be serious at all. In the present case there is no objection to an
interlocutory mandatory injunction to remove the replica Spitfire from the roof
when there is no substantive justification whatsoever for its being where it is
without planning permission and, thus, no defence to the claim.
Argument 2
Mr Underwood
refers for a statement of the principle on which he relies to Video Arts Ltd
v Paget Industries [1986] FSR 623, a decision of Knox J. There the
judge reiterated the principle stated by Scott J in the Staver Co Inc v Digitext
Display Ltd [1985] FSR 512, that it is essential that a party who was
subject to an interlocutory injunction should know what he could and could not
do pending trial.
In point of
fact the Video Arts case was a copyright case. The difficulty that arose
in that case was that the plaintiff was only entitled to an injunction to
restrain acts which infringed his copyright. It could not be clear until trial
what did or did not infringe the copyrights since that was one of the issues
which fell to be decided at the trial.
But the
principle that a party should know what he is restrained from doing is not in
doubt. We are concerned with its application. Mr Underwood submits that
planning law is complicated. The ordinary man does not know its detailed
requirements and prohibitions and there are circumstances in which it is
difficult, one may add even for an expert, to know whether planning permission
is or is not needed. Therefore, he submits, that a quia timet injunction
such as injunction (a) against doing things in breach of the requirement for
planning permission is far too vague to be permissible.
I do not
accept that in the context of the present case. Injunction (a) is not a
completely general injunction against infringing planning law.
It is merely
concerned with prohibiting future structural alterations or additions to be
fixed to the exterior of the buildings of 42 St Oswald’s Road in breach of
planning law. That is an aspect of planning law which does not, in my judgment,
present any real difficulty. The defendants are well aware that planning law
exists and they should have no difficulty in deciding whether whatever they
want to put up does or does not require planning permission.
Argument 3
This relates
only to the replica Spitfire. The question is whether, if that is placed in the
land at the front or at the back of 42 St Oswald’s Road instead of being
affixed to the exterior of the building, that would need planning permission.
The argument
has turned on the phrase in section 55(2)(d) of the Act:
use of any .
. . land within the curtilage of a dwellinghouse for any purpose incidental to
the enjoyment of the dwellinghouse as such.
The argument
does not arise in relation to the quia timet injunction (a) since that
is only concerned with the exterior of the buildings and not the land.
We were
referred to the decision of this court in Wallington v Secretary of
State for Wales (1990) 62 P&CR 1501 and, in particular, to
passages in the judgments of Slade and Farquharson LJJ. That case concerned a
lady who loved dogs. She kept no less than 44 dogs in her home when the local
planning authority served an enforcement notice on her on the basis that she
had made a material change in the use of land without planning permission by
keeping so many dogs.
1Also reported at: [1991]
1 PLR 87.
She appealed
against the enforcement notice, but the inspector upheld it. It limited the number
of dogs she could keep without obtaining planning permission to six. She then
appealed unsuccessfully to the High Court and thence to this court.
Two points in
the case have relevance to the present case. The first is that Slade LJ
recognised that, as a dog-lover, the lady derived personal enjoyment from each
and all of her 44 dogs, but that personal enjoyment was not ‘enjoyment of the
dwellinghouse as such’ — that is to say as a dwellinghouse — which is the
phrase in section 55(2)(d) of the Act. The parallel in the present case is that
Mr Gladden would no doubt derive great enjoyment from keeping the replica
Spitfire on the land at 42 St Oswald’s Road because that would be one in the
eye for the council, but that sort of personal pleasure, however exquisite, is
not ‘enjoyment of the dwellinghouse as such’.
The second
point is that Farquharson LJ held, approving a passage from a judgment of Sir
Graham Eyre QC, that the concept of what is ‘incidental to the enjoyment of the
dwellinghouse as such’ involved an element of objective reasonableness. It
could not rest solely on the unrestrained whim of the occupier of the
dwellinghouse. No one could
one could, in my judgment, regard it as reasonable to keep a replica Spitfire
of the size of this replica on the land, front or back, of 42 St Oswald’s road
as incidental to the enjoyment of that dwellinghouse.
I would
accordingly reject all three arguments put forward by the defendants and I
would dismiss their appeal, subject only to adding, as already indicated to
injunction (a), the words, ‘. . . or otherwise than as permitted by Schedule 2
Part 1 of the General Development Order 1988’.
STUART-SMITH
LJ: I agree. I only add a few words to what Dillon
LJ referred to as the third argument in so far as it relates to the removal of
the replica aircraft from any open land at the site.
The submission
made by Mr Underwood (on behalf of the defendant) is that the placing of the
Spitfire on such land is the use of land within the curtilage of the
dwellinghouse for a purpose incidental to the enjoyment of the dwellinghouse as
such within subsection 5(2)(d) of the 1990 Act. There is really no factual
dispute on the matter. That is the issue which, if the case goes for trial,
will have to be determined. No doubt it is a question of fact and degree
whether or not such an use of land is for the enjoyment of the dwellinghouse as
such. It is easy to see that certain uses, for example the construction of a fountain
or fishpond or the erection of a garden statue, is a use of land for a purpose
incidental to the enjoyment of a dwellinghouse.
This is so
even though the case of the statue is somewhat unconventional. So, too, the
erection of a ‘Wendy House’, a gypsy caravan or a pirate ship for children’s
enjoyment would be structures or the use of land for a purpose incidental to
the enjoyment of a dwellinghouse. There is no suggestion in this case that the
placing of a life-size Spitfire in a small suburban garden is for any such
purpose. Indeed, it is plain that it was put there solely for the purpose of
teasing the local planning authority. That is no doubt good sport and not
unlawful provided the defendant does not infringe planning control, but on the
facts of this case there can be no doubt that the placing of the Spitfire
within this small suburban garden would be a breach of planning control.
HOBHOUSE
LJ: I agree with the judgment of my lords.
Appeal
dismissed with costs. Leave to appeal to House of Lords refused.
Editor’s Note: This case, Croydon London
Borough Council v Gladden, and Runnymede Borough Council v Harwood
were heard together in the Court of Appeal. The judgments, although given
together, are totally separate and have been treated as such.
