Development – Claimant local authority granting defendant developer conditional planning permission for development of land — Defendant breaching planning condition — Claimants issuing enforcement notice — Claimants applying for injunction to restrain defendant from continuing breach — Whether enforcement notice null and void – Whether breach amounting to planning harm sufficient to interfere with defendant’s rights – Whether claimants entitled to injunction — Application granted
The defendant property developer had obtained planning permission to build 30 flats in the garden of his house. The permission was conditional on a scheme of landscaping being submitted and approved by the claimants prior to commencement of the development. As part of that scheme, the defendant proposed that an area of the development site (the affected land) should be fenced off and planted with trees with a view to creating a secluded garden for the residents of the flats.
The claimant local planning authority expressed concerns over the proposal. They issued an enforcement notice alleging that the affected land had been enclosed within the extended garden of the defendant’s house, a development that did not have planning permission, deprived the flats of amenity land and necessitated alterations to boundary features.
On the defendant’s appeal, the inspector found that the enforcement notice was unclear. By agreement with the parties, he amended it to allege non-compliance with the landscaping condition and included a requirement that the defendant should make the land “available for the enjoyment of residents”. However, the defendant continued to treat the land as part of the garden to his house.
The claimants applied for an injunction, pursuant to section 187B of the Town and Country Planning Act 1990, restraining the defendant from preventing the residents of the flats enjoying the affected land. The defendant argued that: (i) the matter complained of did not constitute a breach of planning control; (ii) the enforcement notice was null and void because it did not identify a breach of planning control; (iii) there was no planning harm sufficient to justify interference with private rights; and (iv) the claimants had inappropriately interfered with private law arrangements between the defendant and the lessees of the flats that did not include any express rights over the affected land.
Held: The application was granted.
Section 171A of the 1990 Act provided that a failure to comply with any condition or limitation subject to which planning permission had been granted constituted a breach of planning control. In the instant case, the condition incorporated into the planning permission provided that no development should take place until a landscaping scheme had been submitted and approved by the claimants. Since the development had commenced without such a submission, there had been a breach of planning control at the outset. Accordingly, there had been an actual or apprehended breach of planning control engaging section 187B of the 1990 Act.
Moreover, the enforcement notice was not null and void; it complied with the requirements of the Act and had not been quashed on appeal. The inspector had therefore been entitled to correct or vary it to allege non-compliance with the landscaping condition and the breach of planning control underpinned the enforcement requirements. Although the notice could have been less ambiguous, it must have been clear to the defendant that making the affected land available for the enjoyment of residents meant allowing them to access it: R v Wicks [1998] AC 92 applied.
It was in the public interest for the land to be made available for to the residents of the flats and granting an injunction would not be detrimental to any planning interest or any member of the public. There was no suggestion that to grant residents access would give rise to a nuisance, and it was in the public interest generally for enforcement notices to be obeyed. The defendant did not live on the land, and was not prevented from selling it. His expressed intention had been to make the affected land available to the residents of the flats. Accordingly, an injunction would not be an unjustified interference with his rights as owner.
Furthermore, persistent non-compliance by the defendant and/or companies over which he had control made it just and equitable that the claimants should be granted an injunction restraining the defendant and/or his successors in title from preventing the residents enjoying the amenity land.
Peter Harrison QC (instructed by the legal department of Norfolk County Council) appeared for the applicants; Harriet Townsend (instructed by Hewitsons LLP, of Cambridge) appeared for the defendant.
Eileen O’Grady, barrister
