Buildings not constructed in accordance with planning permission — Enforcement notice — Failure to comply — Appeal procedure exhausted over 10-year period — Application for mandatory injunction to demolish building — High Court granting injunction
In 1986 the council granted planning permission to the defendant company to erect an extensive farm complex at Westfield Farm, Peatling Lane, Arnesby, to house a deer herd which it intended to acquire. The council contended that one of the buildings had not been built in accordance with the planning permission. The two-storey storage building was materially different from that for which permission was granted. The north-eastern section was allegedly built too high and too long and in elaborate form with the addition of triangular and semi-circular window bays and stairwell and looked like a prestigious town centre office block rather than an agricultural building. The first floor was meant to be used for storage and the ground floor for administration purposes whereas both floors had been fitted out as offices which were in excess of the needs of the farm.
The council served an enforcement notice requiring removal of that building within six months for non-compliance. An appeal and application by the defendant for planning permission for the building as it had been built were dismissed by the Secretary of State, who upheld the enforcement notices. The defendant recognised that it had exhausted all procedures by way of appeal in 1993. Appeals had been dismissed or withdrawn over a period of almost 10 years and the council applied by way of originating summons for a mandatory injunction under section 187B(1) of the Town and Country Planning Act 1990 requiring the defendant to remove the offending building.
Held The injunction was granted.
1. Whether to grant an injunction was a matter of discretion. It was for the court to carefully consider the facts relating to the history of the dispute and the parties. But injunctive relief should be used in cases involving substantial work only with considerable circumspection. It might be appropriate where remedial action by other means was ineffective.
2. Section 187B(1) manifested in statutory language that it was unnecessary that every remedy open to the local planning authority should be exhausted. The court should attach weight to the overall conduct of the person against whom an injunction was sought and evidence of such matters as co-operation or disregard of the law and serious personal hardship should be taken into account.]
3. The possibility of planning permission being granted in the future was not a legitimate reason for refusing an injunction to restrain a breach of the law: see Hambleton District Council v Bird [1995] EGCS 67.
4. The tactics of appealing to the court and then withdrawing the appeal was alleged and accepted on the evidence as being delaying tactics.
5. The grant of an injunction to remedy a long-term breach of law was the correct remedy and an injunction would be granted in the terms sought, ie that the defendant should remove the two-storey building within 56 days.
Stephen Gasztowicz (instructed by Edwin Coe, London agents for the solicitor to Harborough District Council) appeared for the council; Peter Goatley (instructed by Shoosmiths & Harrison, of Rugby) appeared for the defendant company.
