Earlier this year (see PP 2009/60), in a claim by a local planning authority for injunctive relief in respect of a breach of planning control, the High Court made it clear that the court could take into account, when deciding whether to grant an injunction, the possibility that a background planning application or appeal might be successful. This was so, despite the fact that it was not the function of the court to determine the planning application or appeal.
This issue has arisen again, in more complex circumstances, in Brentwood Borough Council v Ball [2009] EWHC 2433 (QB); [2009] PLSCS 274. The defendants, who were English gypsies, had purchased a plot of agricultural land in the metropolitan green belt. The land had earlier been the subject of enforcement notices, which had been upheld on appeal. These required the removal of all touring caravans, the permanent cessation of the use of the site for residential purposes and the reinstatement of the land to a condition that was suitable for agriculture.
Earlier this year (see PP 2009/60), in a claim by a local planning authority for injunctive relief in respect of a breach of planning control, the High Court made it clear that the court could take into account, when deciding whether to grant an injunction, the possibility that a background planning application or appeal might be successful. This was so, despite the fact that it was not the function of the court to determine the planning application or appeal.
This issue has arisen again, in more complex circumstances, in Brentwood Borough Council v Ball [2009] EWHC 2433 (QB); [2009] PLSCS 274. The defendants, who were English gypsies, had purchased a plot of agricultural land in the metropolitan green belt. The land had earlier been the subject of enforcement notices, which had been upheld on appeal. These required the removal of all touring caravans, the permanent cessation of the use of the site for residential purposes and the reinstatement of the land to a condition that was suitable for agriculture.
The defendants later moved onto the land with 14 caravans, 30 to 50 lorry-loads of road planings and earth-moving equipment that was used to create an encampment, with a new continuous roadway through the middle and three pitches on either side. They also erected fencing. They had not obtained planning permission for the settlement. The authority applied for an injunction, under section 187B of the Town and Country Planning Act 1990, requiring the defendants to remedy stated breaches of planning control. The defendants applied for retrospective planning permission, which was refused. At the time of trial, a planning appeal was pending.
Following the decision of the House of Lords in South Bucks District Council v Porter [2003] UKHL 26; [2003] 2 PLR 101 the court was required to consider, on the one hand, the detriment to the environment and the importance of upholding planning law and, on the other hand, the hardship likely to be caused to the defendants and their families.
The court held that it was not proportionate in this case to grant an injunction, taking into account the following factors: (i) there was no history of prolonged breaches of planning control by the defendants; (ii) conventional enforcement measures had not been taken; (iii) there was no urgency in the situation sufficient to justify the compulsory removal of the defendants and their families from the land; (iv) the authority had not weighed in the balance the hardship to the defendants and their families; (v) there was a real prospect of a successful planning appeal; (vi) the effect of forcing the defendants and their families to leave the land would or might cause hardship or danger to them; and (vii) there was no clear evidence of suitable alternative accommodation.
The judgment contains some useful guidance for local planning authorities contemplating a claim for injunctive relief in such circumstances. For instance, although it is clear that section 187B does not make it a precondition of a claim that, for instance, an enforcement notice should first have been issued, this may well be desirable.
John Martin is a freelance writer
