Breach of planning control – Injunction – Defendants establishing boys’ school in residential property without planning permission – Retrospective planning application refused – Enforcement notice issued and upheld – Subsequent further planning application also refused – Whether claimant planning authority entitled to injunction to restrain unlawful school use – Whether prospects of success of outstanding planning appeal a matter to be taken into account in deciding application for injunction – Application granted
The first defendant owned a semi-detached property in which the defendants ran a boys’ school associated with a local synagogue. The use of the property as a school was a breach of planning control and neighbouring residents complained to the claimant council. In 2003, the first defendant applied to the claimants for retrospective planning permission. The claimants rejected the application on the ground that the increased activity, noise and disturbance arising from the use of the property as a school was harmful to the amenity of neighbouring properties, contrary to the relevant development plan policies. In 2005, the claimants issued an enforcement notice requiring cessation of the unauthorised use but allowing 11 months for compliance. The first defendant’s appeal against that notice was dismissed by an inspector, who considered that planning permission should not be granted and that the time for compliance was not too short. Consequently, the notice took effect from May 2006 and the use of the property as a school was required to cease by April 2007.
The defendants did not comply. They remained in correspondence with the claimants while attempting to find an alternative site. In December 2008, the defendants made a further planning application to continue the school use, relying on a noise report that they had obtained and various measures that they had taken to reduce the nuisance. The claimants’ planning committee expressed sympathy with the defendants but refused planning permission by four votes to three.
In 2009, the claimants applied for an injunction to restrain the breach of planning control pursuant to section 187B of the Town and Country Planning Act 1990. The defendants contended that the court should in its discretion refuse to grant the injunction. They submitted that it would be disproportionate to close down the school pending the outcome of an appeal that they had lodged against the second refusal of permission. They argued that the decision on that appeal would be available by November 2009 and that they had a reasonable prospect of success.
Held: The application was granted.
The authorities did not establish any general principle that injunctions that would otherwise be granted under section 187B were not to be suspended by reference to the expected result or duration of the planning process: Waverley Borough Council v Lee [2003] EWHC 941 (QB); [2003] EWHC 29 (Ch), Mid-Bedfordshire District Council v Smith [2003] EWHC 932 (QB) and Oxfordshire County Council v Wyatt Bros (Oxford) Ltd [2005] EWHC 2402 (QB) considered. The possibility that an appeal against a refusal of planning permission might be successful was a factor that the court could take into account when deciding whether to grant an injunction under section 187B, although it did not itself have the function of deciding the outcome of that appeal: South Buckinghamshire District Council v Porter (No 1) [2003] UKHL 26; [2003] 2 PLR 101 applied. Whether to give weight to such a possibility and if so how much, was a matter for the court to decide in all the circumstances of the case.
In the instant case, it was appropriate to grant an injunction notwithstanding the pending planning appeal. The prospects of success in that appeal were not such that any substantial weight could be given to them. All other relevant factors pointed overwhelmingly to the grant of an injunction. Although the defendants had not been guilty of deliberate delaying tactics, had made substantial efforts to find alternative locations and could not be criticised for thinking that their planning appeal had a real prospect of success, given the narrow margin by which their second planning application had been defeated. However, they had taken too long to “grasp the nettle”. The inspector in the 2006 planning appeal had provided sound reasons for thinking that a period of 11 months was sufficient for the school to resolve the situation. The claimants had given more than due consideration to the school by the course they had taken and had rejected the second planning application. The pupils and their parents had to recognise that they had benefited from the school only because the defendants had contravened planning law. If the defendants were unable to find an appropriate alternative location, it would be just and proportionate to require them to accept that the position should revert to that in existence before the school was established. However, the injunction should be suspended until December 2009 in order that arrangements could be made for the boys to continue their education elsewhere without disruption.
Saira Kabir Sheikh (instructed by the legal department of Barnet London Borough Council) appeared for the claimants; Alun Alesbury (instructed by Pearlmans) appeared for the defendants.
Sally Dobson, barrister
