Where a local planning authority seeks an injunction to restrain any actual or apprehended breach of planning control under section 187B of the Town and Country Planning Act 1990, the court’s discretion to make an order must be exercised judicially and not automatically because a local authority seeks one.
The High Court has considered an application for an injunction to restrain unlawful development in Maidstone Borough Council v Brazil and others [2023] EWHC 965 (KB).
The case concerned land at Three Sons, Nettlestead, the lawful use of which was as an undeveloped green field for agricultural purposes. The land was registered but had been divided into smaller parcels owned by the 23 defendants, not all of which were separately registered.
Between April 2015 and November 2020, the site was entirely transformed to an area covered in earth and hardstanding with many caravans and permanent structures on it. The claimant contended that the development was inappropriate, had caused harm to the green belt and was in breach of national and local planning policy.
In 2017, after enforcement notices had failed to stop development, the claimant obtained interim injunctions under section 187B of the 1990 Act. Breaches of those injunctions in 2019 led to the claimant’s application for a permanent injunction requiring the defendants to remove from the land all buildings, mobile homes and caravans and to restrain them from bringing such items onto the land and carrying out further works on the land.
When exercising its discretion as to whether to grant an injunction under section 187D of the 1990 Act, the court must exercise its discretion judicially. It must be satisfied that the defendants intend to breach planning law but that in all the circumstances it is proportionate and just to grant an injunction, taking account of the impact on the defendants including their rights under Article 8 of the European Convention on Human Rights: South Bucks District Council v Porter (No. 1) [2003] 2 AC 558.
The court granted injunctions in respect of the third to twenty-third defendants, whose transformation of the land was a serious and significant breach of planning control. Such orders would cause the defendants hardship but this was outweighed by the degree of planning harm, the flagrancy of their breaches of planning control and the failure of other methods of enforcement over many years. Injunctions against the first and second defendants were refused. They had the benefit of temporary planning permission and had not breached planning control with the same degree of flagrancy as the remaining defendants.
Louise Clark is a property law consultant and mediator