Defendants occupying land in breach of planning control – Councils applying section 187B under Town and Country Planning Act 1990 for injunctions to restrain breaches – Court granting injunctions – Whether court correctly exercising discretion to grant injunctions
The defendants in all four cases were gypsies living in mobile homes on land that they occupied in breach of planning control. In each case, the council applied, under section 187B of the Town and Country Planning Act 1990, for an injunction to restrain the breaches. In each case, the court granted relief, and ordered the defendants to move off the sites that they occupied. The defendants appealed.
At the heart of the appeals was Article 8 of the European Convention on Human Rights. It was common ground that: (i) the defendants’ removal was an interference with their right to respect for their private life, family life and home (Article 8(1)); and (ii) the interference was “in accordance with the law” and was pursued “for the protection of the rights… of others” (Article 8(2)), namely through preservation of the environment.
The issue was whether the interference answered a “pressing social need”, and, in particular, was proportionate to the legitimate aim pursued.
In that context, the central question was the extent to which the court, upon a section 187B application, could exercise an independent judgment in deciding whether to grant an injunction. The defendants submitted, inter alia, that the court was bound to consider afresh all the facts, including all issues of policy as to the grant of planning permission and all questions of hardship if the gypsies were to be removed. The respondent councils submitted, inter alia, that provided the planning authority had struck a balance between the interests of the gypsy and those of the wider community and had not reached a manifestly erroneous conclusion, an injunction should be granted, unless a material changehad taken place in circumstances since the application was made.
Held: The established approach to section 187B, that a judge was more or less bound to grant an injunction unless the local planning authority’s application could be shown to be flawed on Wednesbury grounds, was not compliant with the Human Rights Act 1998. A judge was required to approach an application by taking the planning merits of a case as decided within the planning process. He should not grant injunctive relief unless he were prepared, if necessary, to contemplate committing the defendant to prison for breach of the order. This required consideration of all the questions of hardship for the defendant and his family if required to move, which included considering the availability of suitable alternative sites. Questions of the family’s health and education would be relevant, alongside countervailing considerations, such as the need to enforce planning control in the general interest and the site’s planning history. The degree and flagrancy of the postulated breach of planning control might prove critical, and previous planning decisions would always be relevant.
2. Although a local authority’s decision under section 187B(1) to seek injunctive relief would also be relevant, the relevance and weight of their decision would depend, above all, upon the extent to which they could be shown to have had regard to all the material considerations and to have properly posed and approached the Article 8(2) question as to necessity and proportionality. The court’s discretion was absolute. Injunctive relief should not be granted unless properly thought to be proportionate. Proportionality required not only that the injunction was appropriate and necessary for the attainment of the public interest objective sought but also that it did not impose an excessive burden upon the individual whose private interests were at stake.
3. Applying those principles, the decisions in the first three cases could not stand; in the fourth case, the judge had correctly exercised his power under section 187B of the Act.
Mole Valley District Council v Smith [1992] 3 PLR 22; Hambleton District Council v Bird [1995] 3 PLR 8; Tandridge District Council v Delaney [2000] 1 PLR 11 and Chapman v United Kingdom 27238/95 (2001) 33 EHRR 18, considered.
Charles George QC and Stephen Cottle (instructed by The Community Law Partnership, of Birmingham) appeared for the appellant in the first action; Timothy Straker QC and Ian Albutt (instructed by Sharpe Pritchard) appeared for the respondent in the first action.
David Watkinson (instructed by The Community Law Partnership, of Birmingham) appeared for the appellants in the second action; Timothy Straker QC and Robin Green (instructed by Sharpe Pritchard) appeared for the respondents in the second action.
Richard Drabble QC and Stephen Cottle (instructed by The Community Law Partnership, of Birmingham) appeared for the appellant in the third action; Timothy Straker QC and Robin Green (instructed by Sharpe Pritchard) appeared for the respondents in the third action.
Richard Drabble QC and Murray Hunt (instructed by Bramwell Browne Odedra, of Chesham) appeared for the appellant in the fourth action; Robert McCracken and Gregory Jones (instructed by the solicitor to Hertsmere Borough Council) appeared for the respondents in the fourth action.
Thomas Elliot, barrister
