Proceedings for an injunction — Sections 187B and 214A of Town and Country Planning Act 1990 — Delegated authority to authorise enforcement action — Whether enforcement action including proceedings for injunction — Whether proceedings properly authorised — Claim dismissed
The claimant council applied for injunctions to restrain the defendant from depositing waste materials in an area of woodland in breach of enforcement notices and of an undertaking given by the defendant. They relied upon sections 187B and 214A of the Town and Country Planning Act 1990, which empowered local planning authorities to apply for an injunction where they considered it necessary or expedient to restrain an actual or apprehended breach of planning control or an offence under section 210 or section 211. The council document authorising the commencement of the proceedings was signed by the council’s head of planning services, who, under para 2.21 of the council’s scheme of delegation, was given the power for “the taking of Enforcement Action under the Town and Country Planning Acts, including the service of Enforcement Notices”.
Section 171A(2) of the 1990 Act defined “enforcement action” as the issue of an enforcement notice or the service of a breach of condition notice. Issues arose as to whether the words “enforcement action” had the same meaning in the scheme of delegation as they did in section 171A(2), and, consequently, whether the proceedings had been properly authorised.
Held: The claim was dismissed.
The scheme of delegation, as it stood in context, should not be read as covering proceedings under section 187B. Those proceedings were the most serious that a planning authority could take by way of enforcement, because of the sanction of imprisonment for breach of an injunction, which was not otherwise available for a breach of planning control. The council could not have intended that the authority to start such proceedings could be delegated more widely than the authority to start a criminal prosecution, which was not covered by para 2.21. As a consequence, there was no general delegation of authority to bring proceedings under sections 187B or 214A. The scheme of delegation did not authorise any officer to decide whether to bring proceedings for an injunction. Only the planning committee could take that decision, unless it delegated power in a particular case. It followed that authorisation of the present proceedings by the head of planning services could not have been valid. The council had failed to go through the correct process, under their internal rules, to decide whether to start the proceedings, including satisfying themselves of the relevant matters under the section. It was not that the council could not have decided as they did; rather, that they had not decided at all: R v Basildon District Council, ex parte Clarke [1995] JPL 866 distinguished. That point could not be taken into account as part of a decision on the merits. The case was analogous to the situation in which proceedings brought by a corporate claimant had not been authorised by a resolution of the board of directors or other governing body. The claim would therefore be dismissed without going into the merits.
Alan Evans (instructed by the solicitor to Kirklees Metropolitan Council) appeared for the claimants; Robert Fookes (instructed by Jacksons Commercial & Private Law, of Stockton-on-Tees) appeared for the defendant.
Sally Dobson, barrister
