Gypsies — Injunction to restrain breach of planning control — Proportionality — Section 187B of Town and Country Planning Act 1990 — Appeals dismissed
In each of these three cases, gypsies were living on land without planning permission. The respective local planning authority applied for an injunction against them under section 187B of the Town and Country Planning Act 1990. This allowed a planning authority to apply for an injunction where they considered it necessary, or expedient, to restrain any actual or apprehended breach of planning control. The court granted the injunctions and the gypsies appealed.
The planning authorities argued that: (i) the judge was more or less bound to grant an injunction on a section 187B application unless the planning authority’s application could be shown to be flawed on Wednesbury grounds; and (ii) it was not until the committal stage for breach of an injunction that the judge was entitled to reach an independent view on proportionality. The Court of Appeal rejected that approach. It held that although the judge was not entitled to reach his own independent view of the planning merits of the case, he should not grant injunctive relief unless he was prepared, if necessary, to contemplate committal to prison for breach; in deciding that matter he should consider all questions of hardship. It took the view that a failure to consider the issue of proportionality at that stage would not be consistent with the judge’s duty, under section 6(1) of the Human Rights Act 1998, to act compatibly with Convention rights. The planning authorities appealed.
Held: The appeals were dismissed.
1. The court’s jurisdiction under section 187B was an original, not a supervisory, jurisdiction. It had a discretionary power to grant an injunction under section 187B. Accordingly, the court was not obliged to grant an injunction just because the local authority thought it expedient to apply for one. No single test could be prescribed, since the facts of each case varied. However, it would be relevant to consider whether, and to what extent, the local planning authority had taken account of the defendant’s personal circumstances and any hardship that an injunction might cause: Westminster City Council v Great Portland Estates plc [1985] AC 661 considered. In all cases, it was ultimately for the court to decide whether it was just and proportionate to grant relief: Buckley v United Kingdom [1997] 2 PLR 10 and Chapman v United Kingdom 27238/95 (2001) 33 EHRR 18 considered. Mole Valley District Council v Smith [1992] 3 PLR 22 and Hambleton District Council v Bird [1995] 3 PLR 8 should now be read subject to the present judgment.
2. A section 187B application was not an invitation to the court to exercise functions allocated elsewhere, so it could never be appropriate for a court to hold that planning permission should not have been refused or that an appeal against an enforcement notice should have succeeded: Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1984] 2 EGLR 183, R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2001] 2 PLR 76 and Hambleton considered.
3. When making an order, the court should ordinarily be willing to enforce it if necessary, and apprehension that a party might disobey an order should not deter the court from making it if otherwise appropriate. Those propositions rested upon the assumption that the order was just in all the circumstances and one with which the defendant could, and reasonably ought to, comply, an assumption that arose both when the order was made and when the time for enforcement arose: Re Liddell’s Settlement Trusts [1936] Ch 365 and Castanho v Brown & Root (UK) Ltd [1981] AC 557 considered.
Timothy Straker QC and Ian Albutt (instructed by Sharpe Pritchard) appeared for the appellants in the first appeal; Charles George QC and Stephen Cottle (instructed by Community Law Partnership, of Birmingham) appeared for the respondent; Timothy Straker QC and Robin Green (instructed by Sharpe Pritchard) appeared for the appellants in the second and third appeals; the respondents in the second and third appeals did not appear and were not represented.
Sally Dobson, barrister
