In Barnet London Borough Council v Adler [2009] EWHC 2012 (QB); [2009] PLSCS 23 (see EG 19 September, p104) the local planning authority successfully applied to the High Court for an injunction restraining the continuing use of a semi-detached house as a boys’ school in breach of planning control. The claim was made under section 187B of the Town and Country Planning Act 1990.
The lawful use of the property was residential. Evidence showed that the increased activity, noise and disturbance arising from the unlawful use caused significant harm to the amenity of neighbouring properties, contrary to development plan policies. At trial, the only serious hurdle for the authority was the argument advanced on behalf of the defendants that it would be disproportionate to close the school pending the outcome of a subsisting planning appeal and that they had a reasonable prospect of success in that appeal.
(The authority had been extremely patient; the planning application underlying the appeal had been submitted only when it was known that the authority were about to seek injunctive relief and the appeal itself was lodged only once the authority’s proceedings had been issued.)
The High Court held that the possibility that a planning appeal might be successful was a factor that the court could take into account when deciding whether to grant an injunction under section 187B, notwithstanding that the court did not have the function of deciding the planning appeal. Whether to give weight to such a possibility, and if so how much, was a matter for the court to decide. In this respect, referring to all the circumstances known to it, the court concluded that it could not give substantial weight to the prospects of success on the appeal.
This case also illustrates that section 187B provides an effective weapon in the armoury of local planning authorities. Although in Adler the authority had already served an enforcement notice, the section makes it expressly clear that an authority can seek an injunction whether or not it has exercised or is intending to exercise any other enforcement powers. Furthermore, the breach of planning control need not actually have occurred. It is sufficient if it is merely apprehended. Finally, there is what the Encyclopedia of Planning Law and Practice describes as a “deliberately loose entry barrier”. The only express requirement is that the authority considers it necessary or expedient for injunctive relief to be granted.
Procedurally, the claim can be made either in the High Court or in the county court. It has been held that section 187B also extends to the grant of mandatory injunctions, as opposed simply to injunctions in purely negative terms. Rules permit an injunction to be granted against persons whose names are unknown and the authority is unlikely, when seeking an interlocutory injunction, to be required to give the usual undertaking in damages.
John Martin is a freelance writer
