Town and country planning – Injunction – Jurisdiction – Crown land – Defence secretary owning former airfield as Crown land – Home secretary wishing to use part of site to accommodate asylum seekers – Local planning authority applying for injunction to prevent breaches of planning control – High Court concluding no jurisdiction to consider matter – Appellant appealing – Whether application for injunctive relief prohibited without consent – Appeal dismissed
The former RAF airfield near Braintree was Crown land owned by the second respondent defence secretary. The first respondent home secretary had a statutory responsibility to provide accommodation for asylum seekers and proposed to house up to 1,700 on part of the airfield.
The appellant local planning authority issued a Part 8 claim applying for injunctive relief under section 187B of the Town and Country Planning Act 1990 to prevent breaches of planning control by requiring the second respondent not to facilitate any kind of residential occupation on the land by asylum seekers.
Under section 296A(2) of the 1990 Act, a local planning authority could not to take steps for the purposes of enforcement in relation to Crown land unless it had the consent of the appropriate authority; in this case; in this case the second respondent.
Under section 296A(4), a step taken for the purposes of enforcement was anything done in connection with the enforcement of anything required to be done or prohibited by or under the 1990 Act.
By section 296A(5) an enforcement step included (a) entering land, (b) bringing proceedings and (c) making an application.
The first respondent applied successfully under CPR 3.4 to strike out the application. The judge made his order explicitly on the basis that the appellant did not have consent from the appropriate authority under section 296A(2). Therefore, the application under section 187B was prohibited by section 296A. The appellant appealed.
Held: The appeal was dismissed.
(1) The issue of the appellant’s Part 8 claim constituted its “bringing proceedings”, within section 296A(5)(b), and its application for an injunction was “the making of an application” within section 296A(5)(c). The application was made under section 187B, which granted the local planning authority the power to “apply to the court for an injunction”.
The court’s function was to ascertain whether the “bringing proceedings” and “the making of an application” were, respectively, within section 296A(5), because they were a “step taken for the purposes of enforcement” in section 296A(4), having regard to the purpose of the provision and in a way that best gave effect to that purpose.
(2) The definition of a “step taken for the purposes of enforcement” in section 296A(4) was a deliberately wide definition. It extended to “anything done in connection with the enforcement” of “anything required to be done or prohibited by or under this Act”. It was amplified in the inclusive provision in section 296A(5), which confirmed that a relevant step included “(a) entering land”, “(b) bringing proceedings” and “(c) the making of an application”. And it was limited by the exclusive provision in section 296A(6), which excluded “(a) service of a notice” and “(b) the making of an order (other than by a court)”.
The concept of a “step taken for the purposes of enforcement” in section 296A(4) was not the same as the concept of “taking enforcement action” in section 171A(2), which was defined in specific terms as being “(a) the issue of an enforcement notice”, as defined in section 172, or “(aa) the issue of an enforcement warning notice”, as defined in section 173ZA, or “(b) the service of a breach of condition notice”, as defined in section 187A. The difference in the language used seemed to be deliberate and reflected an obvious difference in scope.
(3) An application for an injunction under section 187B was undoubtedly a “step taken for the purposes of enforcement”. Its explicit purpose was to enable the local planning authority to restrain, by means of an injunction granted by the court, any “actual or apprehended breach of planning control”.
If an authority applied to the court for such an injunction, as the appellant had done, it was clearly taking a “step for the purposes of enforcement” within section 296A(4). That was because that step qualified within the relevant definition as “anything done in connection with the enforcement of anything required to be done… by or under” the 1990 Act. Therefore, the appellant’s application for an injunction under section 187B was subject to the prohibition in section 296A(2). The same might be said of the Part 8 claim itself.
That analysis corresponded to the reality of the proceedings. The appellant’s Part 8 claim and its application for an injunction were motivated by its belief that, if the proposed development was to proceed, an application ought to be made and granted for the required planning permission in accordance with section 57(1), and that until the required planning permission had been obtained, the development would be unlawful.
(4) The application under section 187B also constituted a step qualifying as “anything done in connection with the enforcement of anything… prohibited by or under” the 1990 Act. The apprehended alleged breach of planning control would be unlawful and susceptible of enforcement, and in that sense “prohibited” under the 1990 Act. On that basis too both the application under section 187B and the Part 8 proceedings fell within section 296A(4) and were subject to the prohibition in section 296A(2).
The expression “the enforcement of anything required to be done or prohibited by or under this Act” could not properly be construed as including only acts required or prohibited by a notice or order that had already been issued. The word “anything” embodied its wide reach, qualified only as anything required or prohibited “by or under this Act”. The relevant requirements and prohibitions were envisaged in generous terms.
(5) Section 296A(4) extended to any relevant requirement or prohibition arising from the provisions of the 1990 Act itself, and to any relevant requirement or prohibition attributable to its legal effects. To construe that provision as confined to requirements and prohibitions arising in notices or orders would require the court to read into it additional words that parliament did not include.
Therefore, section 296A presented a statutory bar to the Part 8 claim and to the application for an injunction under section 187B. The court does not have jurisdiction to entertain those proceedings.
Wayne Beglan and Jack Barber (instructed by Sharpe Pritchard LLP) appeared for the appellant; Paul Brown KC and Nicholas Grant (instructed by Government Legal Department) appeared for the first respondent; The second respondent did not appear and was not represented. Richard Wald KC and Jake Thorold (instructed by Legal Services Lincolnshire) appeared for the first intervener by written submissions only; Alex Goodman KC and Charles Bishop (instructed by Deighton Pierce Glynn) appeared for the second intervener by written submissions only; Wayne Beglan and Jack Barber (instructed by Shared Legal Services for Wealden and Rother District Councils) appeared for the third intervener by written submissions only.
Eileen O’Grady, barrister
