Property — Plant used for cooking pig swill — Defendant applying for change of use — Claimants refusing application — Claimants applying for injunction — Defendant becoming aware of alternative defence at late stage in proceedings — Application to amend defence — Court’s discretion — Claim allowed
The defendant operated a cooking plant for pig swill. In 1999, he obtained planning permission for a replacement cooking plant. In 2001, he applied for permission for a change of use of the cooking plant to that of a rendering plant, understanding that change to be from agricultural to industrial use.
The claimants’ refusal of that application was upheld on appeal. The defendant subsequently applied, under section 191 of the Town and Country Planning Act 1990, for a certificate of lawful use. That application was also refused.
The claimants applied for an injunction. This was granted, although certain issues remained to be decided by the court. At that late stage in the proceedings, the defendant sought to amend his defence on the ground, inter alia, that he was entitled to continue with his use of the plant by virtue of its previous 10 years’ industrial use.
The court considered how to exercise its discretion, bearing in mind the consequences of the defendant’s late application to change his defence.
Held: The claim was allowed.
The application for leave to amend was misconceived and should be refused. It was an attempt to introduce issues of fact and law into proceedings that were, effectively, concluded. Such issues should have been raised during the substantive hearing of the facts.
As a procedural device for contesting the grant of the injunction, the application was unnecessary. The defendant had had a legitimate basis for resisting the injunction on the grounds that he believed that he had: (i) an arguable case, to be resolved in section 191 proceedings; (ii) accrued rights to continue the activity, the restraint of which would cause him irreparable financial loss.
However, the planning position needed to be regularised by way of an injunction. Even if the defendant’s claim to accrued rights was correct, the environmental consequences of such use had to be considered.
The defendant’s bare assertion of hardship should an injunction be granted was insufficient to defeat the grant, on the basis that his use of the land had already, on a number of occasions, been held by the courts to be unlawful.
An injunction would be granted. As from May 2006, the defendant was to be prohibited from using, or permitting the use of, the land identified in the injunction for the industrial rendering of animal waste or by-products.
David Lamming (instructed by Birketts, of Ipswich) appeared for the claimants; Jeremy Cahill QC and Satnam Choongh (instructed by Ashton Graham, of Bury St Edmunds) appeared for the defendant.
Eileen O’Grady, barrister
