Planning control – Enforcement notice – Injunction – Claimant local authority seeking injunctions against defendants requiring cessation of residential use of former RAF camp – Whether defendants having reasonable prospect of successful defence at full trial – Applications dismissed
The claimants were the local planning authority for an area in Hampshire which included the site of a former RAF camp on which there were about 100 units originally constructed to form the camp. The site, save for two units on its eastern edge, was now co-owned by three members of a family and a company (the defendants) who ran it as a training activity centre. In March 2005, the claimants issued a lawful development certificate (LDC) covering the whole site for use as a “training and rest camp on an occasional basis including day and residential training, educational and activity courses and ancillary uses”.
The claimants subsequently applied for injunctions against the defendants requiring them to cease using three of the units for residential purposes, in breach of a planning enforcement notice issued in September 1995 in relation to two other units on the site, and to remove all personal belongings associated with their residential use of those units. Each claim was made under section 187B of the Town and Country Planning Act 1990 and sought permanent injunctions or interim injunctions until trial or further order on the basis that none of the defendants had a defence to the claim against them.
The claimants considered that the defendants’ breaches in using their respective units for residential use were both obvious and without justification and that they had made repeated but unsuccessful attempts to persuade the defendants to desist from their unlawful use. Therefore the claimants considered that they had no alternative but to seek injunctions that could be enforced if necessary by compulsory action.
The question was whether there were reasonable prospects of the defendants succeeding at a full trial.
Held: The applications were dismissed.
The court’s jurisdiction under section 187B was an original and not a supervisory jurisdiction. It had a discretionary power as to the granting of an injunction, the terms on which one was granted and whether it should be granted absolutely, as an interim measure or stayed and, if so, for how long. That power had to be exercised judicially with due regard to the purpose for which the power was conferred: to restrain actual and threatened breaches of planning control. In all cases, the judge was not confined to a consideration of public law grounds for challenging an exercise by a public authority of its statutory powers but had to decide whether in all the circumstances it was just to grant the relief sought against each defendant.
The judge was not entitled to reach his own independent view of the planning merits but had to take account of the possibility that a pending or prospective application for planning permission might succeed, that a previously unsuccessful planning application might yet succeed or that the local planning authority might itself come to reach a different planning judgment in the case. A particular concern was the degree and flagrancy of the postulated breach of planning control, the extent of previous breaches of planning control, the nature and extent of previous planning decisions, any failure to take enforcement measures and the degree of urgency needed in order to prevent or minimise environmental or other damage.
The judge had to take account of whether the defendant had properly taken the opportunity to make his case for at least a temporary personal planning permission and the effect of an injunction had to be proportionate, involved a balancing of the public interest in protecting the environment and upholding the green belt and the relevant development plan and other applicable planning policies against the interests of the defendants in securing respect for their family and personal lives and the protection of their property rights: Porter v South Bucks District Council [2002] 3 PLR 1 (CA; [2003] 2 PLR 101 (HL) applied.
In the circumstances of the present case, it appeared that the defendants had a good arguable case for showing that the 1995 enforcement notice only concerned with the two specific units to which it applied and not with any other units on the site. The use definition contained within the LDC had a much broader and much more widely applicable meaning than that contended for by the claimants and was arguable unenforceable. In any event, the use contended for by the defendants was arguable correct and they were arguably complying with it. Accordingly, the case for final injunctions had not been made out. The balance of convenience was overwhelmingly in favour of maintaining the status quo.
Paul Brown QC and Lisa Busch (instructed by Legal and Democratic Services, New Forest District Council) appeared for the claimants; The first defendant appeared in person and on behalf of the second defendant; The third defendant appeared by his representative; The fifth defendant appeared in person and on behalf of the fourth defendant.
Eileen O’Grady, barrister
