Town and country planning – Injunction – Variation – Material change of circumstances – Defendants applying to vary terms of an injunction prohibiting defendants’ occupation of static caravan on agricultural land – Whether material change of circumstances since injunction made – Whether new facts emerging which could not have been relied on before – Application dismissed
Since June 2000, the defendants had run a company which bred, reared, and produced free-range Saddleback pigs primarily for pork. They specialised in conserving rare bloodlines and practiced regenerative farming methods to preserve grazing land. In June 2022, the defendants purchased, with a mortgage, land accessed off the eastern side of Pickaxe Lane in South Warnborough, which they named Hares Farm. They also had an agreement with the farmer who owned the nearby Priory Farm to rent between five and 10 hectares of arable land per year for grazing.
Following the purchase of the land, the defendants began to instal infrastructure which included the creation of an engineered access track from the entrance gate at Pickaxe Lane, parking areas, a loosely stoned area, a foul water drainage system, electricity and water supply, equipment cabinets, a telegraph pole, metal storage containers and a timber storage shed.
On 16 September 2022, they placed a twin-unit static caravan on the land and began to live in it. They subsequently applied to vary the terms of an injunction made by a deputy judge which prohibited the defendants from occupying the land, on the grounds that there had been a material change of circumstances since it was made.
The defendants argued that they were forced to vacate the property in which they had been living and had been unable to find suitable alternative accommodation. They needed to live in a caravan on the land in order to avoid homelessness; and/or since the order was made, the defendants had appealed against an enforcement notice issued by the claimant. They maintained that they should be permitted to occupy the land.
Held: The application was dismissed.
(1) Section 187B of the Town and Country Planning Act 1990 provided that a local planning authority might apply to the court for an injunction, where it considered it necessary or expedient for any actual or apprehended breach of planning control to be restrained. The court might grant such an injunction as the court thought appropriate for the purpose of restraining the breach: Hambleton District Council v Bird and another [1995] 3 PLR 8 and R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 PLR 76; [2003] 2 AC 295 considered.
An application to vary an injunction could not be used as an accelerated form of challenge to the enforcement notice which was the province of the planning inspector who would hear the appeal. The 1990 Act allocated the control of development of land to democratically-accountable bodies, local planning authorities and the secretary of state. Issues of planning policy and judgment were within their exclusive purview: Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132 and South Bucks District Council v Porter [2003] 2 AC 558 considered.
(2) Whilst the court had jurisdiction to vary an order, it ought only to do so if there had been a change of circumstance or where new facts had emerged which could not have been relied on before. It was the duty of a party with the benefit of an existing order to ensure that it did no more than was necessary to protect their claim. An application to vary an injunction had to raise a material change of circumstances or other good reason why the court should review the injunction. If that threshold was passed, it was for the court to determine whether the injunction remained just and convenient (or proportionate) in its original form or whether it should be varied: Chanel Ltd v FW Woolworth & Co [1981] 1 WLR 485 and Willetts v Alvey [2010] EWHC 155 (Ch) considered.
In the present case, the defendants had not raised a material change of circumstances. They had failed to demonstrate that they could not afford rental accommodation. Although some landlords might refuse to rent to the defendants because they wished to keep two working farm dogs at home, given that the dogs were used for business purposes, the court and the claimant could expect them to look after the dogs without resort to breaches of planning control.
(3) As to the planning merits of residential occupation of agricultural land, there was no reason to step into the shoes of a planning inspector by reaching conclusions on the relative strengths of the expert reports or by exercising a planning judgment. It was not clear that the defendants would succeed in their appeal. The mere exercise of rights of appeal against the enforcement notice was insufficient to demonstrate a change of circumstances. The defendants still wanted to live on the land when they had no permission to do so. In terms of the planning merits, the defendants had raised, and there had been, no material change of circumstances since the hearing before the deputy judge. There was no justification for varying the order.
Even if there had been a change of circumstances, the balance of convenience favoured the claimant. The defendants ignored the planning system when building what was intended as their home on the land. They failed to apply for retrospective planning permission and had taken months to request an oral hearing of their appeal against the enforcement notice. The court was not persuaded that anything in their personal circumstances was so compelling that it outweighed the public interest in the fair and consistent application of planning laws. There was no medical or other independent evidence before the court to suggest that the welfare of the defendants’ child or his best interests required the order to be varied.
(4) Although the defendants said they would leave the caravan if their appeal was unsuccessful, they had already breached planning controls by living in the caravan before the claimant was forced to apply for an injunction; and so the claimant was properly concerned that they might do so again. In the circumstances, public confidence in the planning system would be damaged by the variation sought. The balance of convenience fell in favour of an injunction in the terms granted by the deputy judge. It remained just and convenient, and also proportionate, for the claimant to have the benefit of an injunction in the existing terms.
Robin Green (instructed by Hart District Council) appeared for the claimant; Emmaline Lambert (instructed by Tozers LLP) appeared for the defendants.
Eileen O’Grady, barrister
Click here to read a transcript of Hart District Council v Freeman and another
