Town and country planning – Planning control – Injunction – Defendants owning land in green belt – Lawful use of land for agricultural purposes – Defendants creating hard standing and putting caravans on land – Claimant local authority applying for permanent injunction prohibiting defendants using land in green belt for inappropriate development – Whether grant of injunction being just and proportionate – Application granted in part
The first, fifth and sixth defendants were the owners of land at Three Sons, Hampstead Lane, Nettlestead which was in the metropolitan green belt and in a flood zone. The lawful use of the land was as an undeveloped green field for agricultural purposes. However, the site had been entirely transformed and was almost covered in earth and hardstanding and had many caravans and permanent structures upon it. The claimant local authority argued that the development of the land was inappropriate development, had caused harm to the green belt and was in breach of national and local planning policy, including Government Planning Policy for Traveller Sites (PPTS).
In October 2015, the claimant served two enforcement notices and a stop notice on the land. The notices required that there be no further development of the land and that all previous development be demolished and permanently removed. The first defendant applied for part retrospective planning permission in respect of plot 1 occupied by her and the second defendant. That application was refused but, in 2017, a planning inspector allowed an appeal in part, and granted temporary planning permission for plot 1 to be occupied by first and second defendants and their families for a period of five years. The enforcement notices for the remainder of the land were upheld.
The court granted an injunction under section 187B of the Town and Country Planning Act 1990 following the claimant’s ex parte application. The claimant then applied for a permanent injunction against 23 defendants.
Held: The application was granted in part.
(1) In deciding whether to grant an injunction, the court’s jurisdiction was an original one and not supervisory, but it would not normally investigate the planning merits of the local planning authority’s decisions. However, the court had a discretion to decide for itself whether to grant the injunction and should not do so automatically just because a local planning authority sought one. The court not only had to be satisfied that the defendants intended to breach planning law but also that, in all the circumstances, it was proportionate and just for the court to grant an injunction, taking account, amongst other things, of the impact that such an injunction would have on the defendants, including their rights to private and family life under article 8 of the European Convention on Human Rights. Because the facts of different cases were infinitely various, no single test could be prescribed to distinguish cases in which the court’s discretion should be exercised in favour of granting an injunction from those in which it should not. The degree and flagrancy of any postulated breach might well prove critical: South Bucks District Council v Porter (No 1) [2003] 2 PLR 101 and Mid Bedfordshire District Council v Brown [2004] EWCA Civ 1709; [2004] PLSCS 302 considered.
(2) The degree of harm caused by the development of the land was significant. The site had gone from being an undeveloped field to a site now almost entirely covered by earth and hardcore with many caravans and permanent structures upon it. There was no doubt that the development had caused serious harm to the green belt because of its inappropriate nature, its impact on the openness of the area and its encroachment into the countryside. The PPTS provided that inappropriate development should not be approved except in very special circumstances and, subject to the best interests of the child, personal circumstances and unmet need were unlikely to clearly outweigh harm to the green belt to establish very special circumstances. Where conventional enforcement measures had failed over a long time to remedy the breach, the court might be readier to use its own more coercive powers.
(3) In relation to the third to twenty-third defendants, the injunction order in the terms sought by the claimant would be granted. The defendants had conducted significant development of land in the green belt, to the extent that they had entirely transformed it. That was a serious and significant breach of planning control. There had been extensive failed attempts by the claimant to address that serious breach of planning control by enforcement action, including by a previous section 187B injunction. The number of pending land registry applications was evidence of further breaches of planning control. Without a permanent injunction, future enforcement attempts would continue to fail.
The exercise of discretion was a fact specific judgment, and no single test could be prescribed to distinguish cases in which the discretion should be exercised in favour of granting the injunction from those in which it should not. In addition, there were significant differences between this case and Brentwood Borough Council v Ball and Others [2009] EWHC 2443 (QB); [2009] PLSCS 274 (which was said to be based on similar facts). The degree of the breach of planning control was greater in this case; the enforcement efforts by the claimant had included a previous section 187B injunction; and the breaches of planning control had included the knowing breach of the terms of the previous section 187B injunction. In all the circumstances, an injunction against the third to twenty-third defendants was just and proportionate.
(4) The application for an injunction against the first and second defendants would be refused. Temporary planning permission was granted to them by the planning inspectorate because their personal circumstances outweighed planning harm. The permission was granted on the basis that further sites would become available in the period of the permission which would change the planning balance in favour of refusal of planning permission. However, further sites had not become available and the planning balance had not changed.
The first and second defendants had had the benefit of temporary planning permission between 2017 and 2022 and they had not breached planning control with the same degree of flagrancy as the other defendants. In deciding to apply for an injunction against the first and second defendants, the claimant had failed to give adequate consideration to the circumstances of their case, including their personal circumstances.
Emmaline Lambert (instructed by Ivy Legal Ltd) appeared for the claimant; Simon Bell (instructed by SJM Planning, under the Bar Licensed Access scheme) appeared for the first, second, third and thirteenth defendants; Robin Green (instructed by Clarke Kiernan LLP) appeared for the twentieth, twenty-first, twenty-second, and twenty-third defendants.
Eileen O’Grady, barrister
Click here to read a transcript of Maidstone Borough Council v Brazil and others
