In King’s Lynn and West Norfolk Council v Smith [2009] EWHC 2615 (QB); [2009] PLSCS 296, the High Court had to consider whether maintaining an injunction, in the context of a particular breach of planning control, was just and proportionate.
The council had obtained an injunction against persons unknown forbidding the use of certain agricultural land for the siting of residential mobile homes and caravans and/or using it for residential purposes. Copies of the order were displayed on the land. Despite this, the defendants moved caravans onto the land to use as their homes. They subsequently increased the residential usage by bringing other items onto the land. Following committal proceedings, the defendants were fined £5,000 each. They applied for retrospective planning permission and issued proceedings to vary or discharge the terms of the injunction.
(In the committal proceedings, the defendants contended that they had purchased the land on the understanding that a temporary planning permission to reside in a caravan on the land that was personal to the seller, who was engaged in an agricultural business, would be renewed in their favour.)
The judge took as the starting point the principles laid down by the House of Lords in South Bucks District Council v Porter [2003] UKHL 26; [2003] 2 PLR 101. He concluded that there were four issues to consider, namely: (i) the defendants’ conduct; (ii) the availability of alternative accommodation; (iii) the prospects of success of the planning application; and (iv) the defendants’ personal circumstances.
On (i), the judge found that the defendants had been aware, when they moved their caravans onto the land, that they were acting in breach of planning conditions and that they understood the effect of the court order. Their application to vary the terms of the order was made at the last moment before the committal proceedings, and suggested an attempt to manipulate the system. He took the view that their conduct was the most important of the factors that the court had to consider in deciding whether to exercise its discretion in their favour.
On point (ii), he decided that issues of alternative accommodation did not militate against the removal of the defendants from the land, and with regard to (iii) that, for a number of reasons, the defendants had no realistic prospect of obtaining planning permission.
As far as issue (iv) was concerned, the judge acknowledged that where a dwelling had been established without planning permission, a conflict arose between the rights of the individual under Article 8 of the European Convention on Human Rights to respect for his or her home and the right of the community to environmental protection as set out in planning controls. In terms of proportionality, he held that the defendant’s personal circumstances were towards the lower end of the scale.
Accordingly, he dismissed the defendants’ application.
John Martin is a freelance writer
