Planning permission granted subject to conditions – Breaches of conditions by over-tipping – Defendant failing to comply with enforcement notices – Judge granting mandatory injunction requiring restoration of land – Whether appropriate – Appeal dismissed
In February 1982 land known as Collins Green Landfill site, Warrington, Cheshire, a green field site, was registered to the second defendant company. In November 1982 the first defendant acquired the shareholding of the company, and in mid-1984 he began tipping on the site. On 25 February 1985 planning permission was granted for restoration of the site and the importation of infill materials. A number of conditions were attached to the permission, which related to the restoration of the land and required that tipping and restoration did not exceed certain levels. On 15 May 1985 a waste-disposal licence was granted to the company. On 6 March 1987 an application to vary the conditions of planning permission was allowed, which in effect extended the range and type of material that could be tipped to include domestic waste; the waste-disposal licence was accordingly modified.
By February 1988 there were breaches of planning in respect of over-tipping and an enforcement notice was served for failure to comply with the conditions specified in respect of the north-west area of the site. The notice required levels to be lowered to conform with the levels specified in the conditions – a covering of shale of appropriate depth to be carried out by 31 December 1988 and of subsoil by 31 March 1989, and seeding to be completed by 30 April 1989. The enforcement notice was upheld on appeal. By 30 April 1990 the remedial work had not been completed and summonses were issued for breaches of the enforcement notice. The first defendant pleaded guilty and was fined £12,000.
On 23 July 1991 a second enforcement notice was served in respect of the south-eastern end of the site, again specifying breaches of conditions. The appeal against the notice was dismissed and time expired for compliance in January 1994. The plaintiff council sought a mandatory injunction under section 22 of the Local Government Act 1972 and section 182B of the Town and Country Planning Act 1990. The judge held that the planning breaches were very substantial and that although it could cost around £8m to restore the land, it was appropriate to grant a mandatory injunction requiring the works to be carried out in accordance with the two enforcement notices.
Held: The appeal was dismissed.
There were no grounds on which the judge’s exercise of discretion could be faulted, and, on the evidence, she had been plainly entitled to conclude that the first defendant had not been frank to the court in relation to his financial position. There was no other sensible course that had been open to her. If she had granted no relief at all it would have been unjust, and if she had limited the injunction to only works that the defendants could afford, it would have been unworkable and unjust. There had been a flagrant breach of the planning controls and the mandatory injunction imposed had been appropriate. Whether or not it could be paid for did not render it futile or the judge’s exercise of discretion inappropriate. The defendants could not avoid the consequences because they could not afford the remedies to right their wrong.
John Barrett (instructed by the solicitor to Warrington Borough Council) appeared for the plaintiffs; Eric Owen (instructed by Birchall Blackburn, of Manchester) appeared for the first defendant.
Thomas Elliott, barrister
