Town and country planning – Unilateral undertaking – Enforcement – Section 106 of Town and Country Planning Act 1990 – Appellants giving unilateral undertaking under section 106 in connection with appeal from against enforcement notice concerning use of site as faith centre – Appellants covenanting to apply for appropriate mixed-used planning permission for site within specified time period failing which removal works required by enforcement notice to be carried out – Appellants failing to make such application – Respondents obtaining mandatory injunction to compel appellant to carry out removal works – Whether circumstances justifying refusal of injunction – Whether appropriate to suspend injunction – Appeal allowed in part
The appellants were the trustees of a charitable trust that operated a faith centre on a site in London E15. The centre comprised a mosque, located in the pre-existing commercial buildings on the site, some new buildings and a car park. It was in use seven days a week, with up to 1,900 people attending prayers on Thursday evening and 1,000 on Friday lunchtimes. A temporary planning permission for the trust’s use of the site expired in 2006 and, in 2010, the respondents issued an enforcement notice requiring the cessation of the faith-based use and the removal of all unauthorised buildings, all fixtures associated with the mosque and the hardstanding in the car park.
In connection with an appeal against that notice, the trust entered into a unilateral deed of undertaking, under section 106 of the Town and Country Planning Act 1990, by which it covenanted to submit within 12 months a planning application for a mixed-use development in conformity with adopted and emerging planning policy, which could include an element of community and faith-based use that was proportionate in scale and did not dominate the overall mix of uses. It further undertook that, in the event that it did not submit such a planning application, it would carry out the removal works specified in the enforcement notice. The trust’s appeal against the notice was consequently allowed by a planning inspector to the extent of granting a temporary planning permission for the current use for a period expiring in May 2013.
In the respondents’ core strategy, adopted in 2012, the site was allocated as a “strategic site” for a mix of residential and employment uses to contribute to the creation of a local centre near West Ham station, consistently with its strategic importance for the delivery of new housing and economic development under the London Plan.
The trust did not submit the planning application contemplated by its undertaking. Instead, in 2012, it applied for permission for a single, faith-based use. It appealed against the respondents’ refusal of that application, the non-determination of another application for a two-year extension to the temporary permission and a further enforcement notice. Meanwhile, the respondents applied for and obtained a mandatory injunction requiring the appellants to carry out the removal works. The judge held that the respondents were prima facie entitled to an injunction to enforce the trust’s contractual obligations and that it would not be appropriate to exercise the court’s discretion to refuse or suspend the injunction.
The appellants appealed. They contended that, in the light of the outstanding planning appeal and the balance of benefits and detriments, an injunction should either have been refused or should have been suspended until the outcome of the appeal was known.
Held: The appeal was allowed in part.
(1) Planning obligations entered into under section 106 of the 1990 Act were contractual in nature and were enforceable by injunction pursuant to section 106(5): R (on the application of Millgate Development Limited) v Wokingham Borough Council [2011] EWCA Civ 1062; [2012] 3 EGLR 87; [2012] 39 EG 120 and Stroude v Beazer Homes Ltd [2005] EWHC 2686 (Ch); [2006] 2 P&CR 6; [2006] 3 EGLR 115 applied. Damages would not usually not be an adequate remedy in the event of breach, since a local planning authority would rarely be able to point to a loss measurable in money terms that they had suffered as a result of such a breach. In seeking an injunction, the authority exercised a public function in the public interest.
Where there was a substantial breach of a planning obligation under section 106, the court would normally exercise its discretion to grant an injunction, in order to hold the party in breach to its bargain, unless the local planning authority had been guilty of delay or unconscionable conduct such as might justify a refusal of relief on ordinary equitable principles. The purpose of an injunction under section 106(5) was to enforce an undertaking voluntarily given to a local planning authority, not to restrain a breach of planning control. The existence of an outstanding planning appeal would usually be irrelevant, since the matters to which a local planning authority was required to have regard when making a planning decision concerning matters of planning control were not matters to which they were required to have regard when deciding whether to seek an injunction under section 106(5), or to which the court should have regard when deciding whether to grant such an injunction: R (on the application of O’Brien) v Basildon District Council [2006] EWHC 1346 (Admin); [2007] 1 P&CR 16; [2006] PLSCS 95 applied; South Bucks District Council v Porter [2003] UKHL 26; [2003] 2 AC 558; [2003] 2 PLR 101 distinguished. If a person sought to contend that a planning obligation no longer served a planning purpose, then the proper course was to seek to discharge or modify the obligation under section 106A or 106B.
The judge had been entitled to conclude that he should grant an injunction in the instant case. He had correctly considered that there needed to be a compelling reason not to hold the trust to the undertaking. The breach of the undertaking was substantial and the matters on which the appellants relied were insufficiently compelling to displace the consequence that should normally follow in the event of such a substantial breach of a section 106 planning obligation. The trust had freely entered into the undertaking, recognising its purpose and effect, in order to advance its case before the planning inspector that it should be granted temporary planning permission authorising its current use of the site. It had subsequently had made a planning application well out of time and had failed in a material respect to comply with the substantive requirements of the undertaking. To refuse an injunction would defeat the whole purpose of entering into the section 106 obligation. In those circumstances, it was not oppressive to enforce the obligation; it was simply a matter of holding the trust to its agreement.
(2) The judge had the power to suspend the injunction under the inherent jurisdiction of the court. The question of whether to grant an injunction was different from the question of whether to suspend it and called for separate consideration. The judge appeared to have given no proper separate consideration to that issue.
Although the power to suspend a section 106(5) injunction should be exercised sparingly, so as not to frustrate the planning purpose achieved by a section 106 planning obligation, there might be circumstances in which it was fair, just and reasonable to suspend the injunction. The existence of the impending planning appeal justified suspension in the instant case. It was relevant that the appeal against the refusal of planning permission for a single faith-based use was likely to be determined before the end of the year and that, if it succeeded, it would be difficult for the respondents reasonably to continue to insist on the trust complying with the undertaking. It was impossible for the court to predict the outcome of the appeal, which was of unusual sensitivity and importance for the area. Moreover, a refusal to suspend the injunction would effectively pre-empt the outcome of the appeal against the respondents’ refusal to extend the temporary planning permission for two years. To require the trust to carry out the removal works would cause considerable hardship to it and the members of the community, which would serve little purpose of practical value if the main appeal succeeded. Although the enforcement of planning obligations served the important general purpose of keeping parties to their obligations, that purpose should not be given undue weight in a case where the planning future of the site would be fundamentally changed in the event of a successful appeal and where compliance with the injunction would cause serious harm. There was no particular planning detriment in allowing the status quo to continue for a relatively short period until the planning future of the site was finally determined. In all the circumstances, the injunction should be suspended until the outcome of the appeals was known and a short period had been allowed for the parties to consider their position.
Timothy Fancourt QC (instructed by Deen & Co) appeared for the appellants; Dougas Edwards QC and Jack Connah (instructed by the legal department of Newham London Borough Council) appeared for the respondents.
Sally Dobson, barrister
