Town and country planning – Unilateral undertaking – Enforcement – Claimants giving unilateral undertaking under section 106 of Town and Country Planning Act 1990 in connection with appeal against enforcement notice concerning use of site as faith centre – Claimants covenanting to apply for mixed-used planning permission within specified period – Claimants failing to make application – Defendant local authority obtaining mandatory injunction to compel claimants to carry out removal works – Claimants applying to suspend injunction – Whether fair and reasonable to suspend injunction – Application dismissed
The claimants 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 pre-existing commercial buildings, some new buildings and a car park. It was in use seven days a week. A temporary planning permission for the trust’s use of the site expired in 2006. In 2010, the defendant local authority issued an enforcement notice requiring the cessation of the faith-based use and removal of all unauthorised buildings, fixtures associated with the mosque and hardstanding in the car park.
In connection with an appeal against that notice, the claimants entered into a unilateral deed of undertaking, under section 106 of the Town and Country Planning Act 1990, by which they 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, proportionate in scale and not dominating the overall mix of uses. It further undertook that, if it did not submit a planning application, it would carry out the removal works specified in the enforcement notice. An appeal against the notice was allowed by a planning inspector to the extent of granting temporary planning permission for the current use expiring in May 2013.
The claimants did not submit the planning application. Instead, in 2012, they applied for permission for a single, faith-based use. They appealed against the defendants’ 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 defendants obtained a mandatory injunction requiring the claimants to carry out the removal works. The judge held that the defendants 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 Court of Appeal upheld the injunction but suspended it pending the outcome of the appeals against the enforcement notices: [2014] EWCA Civ 676; [2014] PLSCS 153.
In October 2015 the secretary of state dismissed the appeals. The claimants were refused permission to seek judicial review and the Court of Appeal refused permission to appeal. By 23 August 2017 the claimants had no further right of appeal, the injunction became active and they made the instant application to suspend it, which was then adjourned. They had not submitted a plan for the land that complied with the local plan and their use of the land remained unlawful. They argued that, as their community was now fully committed to a mixed-use plan, it would be fair and reasonable to suspend the injunction.
Held: The application was dismissed.
(1) Despite the five-and-a-half months that had passed since the adjournment, the claimants were very far from agreeing any sort of development for the site. There had been no progress in entering an agreement with a developer, no steps regarding a site investigation or decontamination of the land, no application for outline planning permission, no consultation with the defendants and no solicitors instructed to deal with due diligence or licence agreements with a developer. The claimants were continuing to procrastinate. There was no obvious will to enter into any agreement to develop the site that would comply with the local plan. The planning inertia of 2011 continued despite the great indulgence given to the claimants. It was notable that no proposed development partners with exclusive licence agreements had supported the application. If they were genuinely interested, the court would expect them to have given evidence as the application was in their best interest. There was a fundamental disagreement between the claimants and developers regarding what should be paid for licence agreements which was plainly a big consideration and might indicate that no agreement would be reached.
(2) Even though enforcement of the injunction would cause hardship to the community who enjoyed the centre, their activities were unlawful. Although those activities were of undoubted benefit to the community, they had to stop. The claimants had given a unilateral undertaking to obtain the very real benefit of gaining extra time in which to make the activities lawful. From the outset the mosque had been a breach of planning control. It was a criminal offence to breach an enforcement notice. An injunction was a means of enforcement. The court would hold parties to their legally binding undertakings. The impact on the community was a consequence of the unlawful use of the land. The hardship did not amount to circumstances giving the court the power to suspend the injunction. Suspension would defeat the purpose of the injunction granted under section 106(5) and would undermine planning control: Newham London Borough Council v Ali [2014] EWCA Civ 676; [2014] PLSCS 153 followed.
The claimants appeared in person; Douglas Edwards QC (instructed by Newham London Borough Council) appeared for the defendants.
Eileen O’Grady, barrister
