Section 6 of the Human Rights Act 1998 requires courts to act compatibly with the European Convention on Human Rights (ECHR). Therefore, when an injunction is sought under section 187B of the Town and Country Planning Act 1990 in circumstances where Article 8 of the ECHR – right to respect for private and family life – applies, the court is bound to determine whether the test of proportionality has been satisfied before an injunction is granted. In other words, the court must weigh up the public interest in securing the enforcement of planning policy and planning decisions against the private interests of the persons who are allegedly in breach of planning control. See in particular South Bucks District Council v Porter [2003] UKHL 26; [2003] 2 PLR 101, where the House of Lords approved the guidance given below by the Court of Appeal.
A recent useful illustration of how, in practice, the court goes about this can be found in
The breach of planning control had been flagrant and prolonged, and there is a strong general public interest that planning controls should be complied with.
- The planning merits of allowing the occupation of the site had been considered by three inquiries, and the enforcement notice had been upheld each time.
- The fullest consideration had been given to the personal circumstances of the defendants and these had not materially changed.
- There was no real prospect that the current planning application would succeed.
- Alternative accommodation, albeit less than satisfactory from the defendants’ point of view, had become available.
- The council’s decision to resort to proceedings, rather than forcible eviction, was entirely reasonable.
The judge concluded that on this basis the planning decisions already taken should be accorded the full measure of judicial respect.
John Martin is a freelance writer
