Green belt — Breaches of planning control — Interlocutory injunctions granted but subsequently discharged — Scope of power under section 187B of the Town and Country Planning Act 1990 — Not to be exercisable only at the trial of the action — Injunctions restored
The respondent
occupied part of Sycamore Farm, near Egham, Surrey, which was green belt land.
The farm had not been used for agricultural purposes for some years. In July
1993, by which time there was a complicated history of enforcement action by
Runnymede District Council (‘the council’), the respondent lodged two
applications for planning permission. The first was for the change of use of
the land in question to use for the maintenance and repair of commercial
vehicles for a limited period of five years. The second was to convert a redundant
agricultural building to a residence for himself and members of his family.
Those applications were refused by the council. At the date of such refusals an
enforcement notice in respect of the use of the land for the storage and repair
of goods vehicles had become effective. The works of conversion to the former
agricultural building had already been carried out.
Immediately
prior to the refusals the council made an ex parte application to the
High Court under section 187B of the Town and Country Planning Act 1990 for
certain injunctive relief. Two of the injunctions granted were injunctions to
restrain the respondent respectively from continuing to use the land in
question for the purposes of the storage of motor vehicles and from moving or
causing or permitting any person to move into occupation of the former
agricultural building.
Those
interlocutory injunctions were subsequently discharged by the High Court on
undertakings by the respondent to prosecute appeals against the refusals of
planning permission with all due diligence and, in the event of the final
dismissal of the appeals, to comply with all then existing enforcement notices
in all respects.
The council
appealed to the Court of Appeal against the order discharging the two
interlocutory injunctions.
appeal was allowed.
The powers of
the court under section 187B are much wider than those previously enjoyed and
the court should not construe them as
in City of London Corporation v Bovis Construction Ltd [1992] 3
All ER 697: see pp24F-25B.
The High
Court, in discharging the interlocutory injunctions, were concerned at what
would be decided at the trial of the action and in particular that if the
respondent was no longer carrying on the activity in relation to commercial
vehicles and living in the former agricultural building that would have
militated against his chances of resisting injunctions at the trial. In so
doing it was applying the law laid down by the Court of Appeal in East
Hampshire District Council v Davies [1991] 2 PLR 8. The law as
stated there was not automatically applicable to applications under section
187B. By that section Parliament had granted the court a clear power to grant
injunctions to enforce planning control over actual as well as apprehended
breaches of planning control and it could not have been the intention, where
there had been an actual breach, that the power should only be exercisable at
the trial of the action with interlocutory applications confined to preserving
the status quo of continuing infringement of planning control until trial: see
pp27H-28D.
The High Court
had misdirected itself in concentrating on the interlocutory nature of the
council’s application without considering the underlying position and was wrong
in discharging the two injunctions. Planning permission for the use of the land
for storage of motor vehicles had been persistently refused and an enforcement
notice had taken effect. The works of conversion to the former agricultural
building had been put in hand at a time when there was no relevant planning
permission: see pp28F-29A. The injunctions, accordingly, should be restored
albeit with the injunction in relation to the former agricultural building
being suspended until the planning appeal in that respect had been determined:
see p29B.
to in the judgments
American
Cyanamid Co v Ethicon Ltd [1975] AC 396;
[1975] 2 WLR 316; [1975] 1 All ER 504, HL
City of
London Corporation v Bovis Construction Ltd [1992]
3 All ER 697; (1988) 86 LGR 660, [1989] JPL 263, CA
Doncaster
Borough Council v Green (1992) 91 LGR 459;
(1991) 64 P&CR 73; [1992] 2 PLR 58; [1992] JPL 658, CA
East
Hampshire District Council v Davies (1990)
61 P&CR 481; [1991] 1 EGLR 182; [1991] 10 EG 149; [1991] 2 PLR 8, CA
Gouriet v Union of Post Office Workers [1978] AC 435; [1977] 3 WLR
300: [1977] 3 All ER 70, HL
Mole
Valley District Council v Smith (1992) 90
LGR 557; (1992) 64 P&CR 491; [1992] 3 PLR 22; (1992) 24 HLR 442, CA
Appeal against
decision of Colman J
This was an
appeal against an order of Colman J made on September 7 1993 whereby he
discharged two interlocutory injunctions which had been granted by Curtis J on
August 19 1993.
QC and Michael Druce (instructed by the solicitor to Runnymede Borough Council)
appeared for the appellants.
Bhose (instructed by Francis Mostyn & Co) appeared for the respondent.
following judgments were delivered.
DILLON LJ: We will first give our judgments in Runnymede Borough Council v
Harwood. Then, on Croydon London Borough Council v Gladden,
before any of the supplementary questions of costs and so forth are dealt with.
This is an
appeal by the plaintiffs in the action (Runnymede Borough Council) against an
order of Colman J sitting as judge in chambers in the Queen’s Bench Division on
September 7 1993 whereby, on certain undertakings by the defendant (Mr
Harwood), he discharged two interlocutory injunctions, which had been granted
by Curtis J on ex parte application by the council on August 19 1993.
Those
injunctions had been granted under section 187B of the Town and Country
Planning Act 1990, which had been inserted in that Act with effect from January
2 1992 by section 3 of the Planning and Compensation Act 1991. Section 187B
provides, so far as material, as follows:
(1) Where a local planning authority consider it
necessary or expedient for any actual or apprehended breach of planning control
to be restrained by injunction, they may apply to the court for an injunction,
whether or not they have exercised or are proposing to exercise any of their
other powers under this Part.
(2) On an application under subsection (1) the
court may grant such injunction as the court thinks appropriate for the purpose
of restraining the breach.
Jurisdiction
is conferred on the High Court or the county court. The enactment of the
section followed recommendations in the Carnwath Report. It is an
important extension of the powers of the court and of the powers of planning
authorities to enforce planning control in that it is exercisable whether or
not the authority has exercised, or is proposing to exercise, any of their
other statutory powers.
Previously the
planning authority had power, as they still have, to bring civil proceedings
under section 222 of the Local Government Act 1972, which made a relator action
by the Attorney-General unnecessary, but it was generally thought that the
appropriate machinery for enforcing planning control was by an enforcement
notice under the planning Act backed by the sanctions of criminal law. An
injunction tended only to be granted in aid of the criminal law if it had been
proved by prosecutions of the particular defendant that the criminal penalties
were not enough to deter him from infringement of planning law. Thus, in City
of London Corporation v Bovis Construction Ltd [1992] 3 All ER 697
at p714H, Bingham LJ laid down three guiding principles as follows:
The guiding
principles must, I think, be:
(1) that the jurisdiction is to be invoked and
exercised exceptionally and with great caution . . .
(2) that there must certainly be something more
than mere infringement of the criminal law before the assistance of civil
proceedings can be invoked and accorded for the protection or promotion of the
interests of the inhabitants of the area . . .
(3) that the essential foundation for the
exercise of the court’s discretion to grant an injunction is not that the
offender is deliberately and flagrantly flouting the law but the need to draw
the inference that the defendant’s unlawful operations will continue unless and
until effectively restrained by the law and that nothing short of an injunction
will be effective to restrain them . . .
Plainly the
powers of the court under section 187B are much wider and the court should not
construe them as impliedly limited by the previous restrictions. That they
would have wider effect is indeed envisaged in the dicta of Glidewell LJ
and myself in Doncaster Borough Council v Green [1992] 2 PLR 58.
I turn now to
the facts. The land in question occupied by Mr Harwood was part of a farm known
as ‘Sycamore Farm’ near Egham, Surrey. It is green belt land within the area of
Runnymede Borough Council, but for some years has not been used for
agricultural purposes.
In the summer
of 1981 Mr Harwood, with the consent of the owner, moved into what has been
variously described in the papers as a mobile home or a converted wooden shack
on the land in question and began living there. Without prejudice to its
erstwhile mobility, if any, this has been referred to as building Z. It is the
predecessor of the building which is in issue on this appeal.
On June 11
1984 the council served on Mr Harwood an enforcement notice requiring the
demolition or removal of building Z, but Mr Harwood appealed. On April 25 1985
an inspector appointed by the Secretary of State for the Environment upheld the
appeal to the extent of granting Mr Harwood personal planning permission for
three years, giving Mr Harwood an opportunity to demonstrate the viability of
his use of the land in question as an agricultural holding.
At the end of
the three years it was clearly shown that the land was not viable as an
agricultural holding. This is not now disputed. None the less, on July 28 1988
Mr Harwood applied for the renewal of the 1985 limited planning consent. This
was refused by the council on January 4 1989. On May 18 1989 a second
enforcement notice was served by the council on Mr Harwood in respect of
building Z. Mr Harwood appealed against the refusal and the enforcement notice,
but on March 19 1990 he withdrew both those appeals. The enforcement notice
accordingly took effect.
On November 15
1989 Mr Harwood applied for planning permission for a change of use of the land
in question to use for the storage and repair of goods vehicles. This was
refused by the council. Mr Harwood appealed against the refusal, but his appeal
was dismissed on February 12 1991. In the meantime the council had served Mr
Harwood with another enforcement notice in respect of the use of the land in
question for the storage and repair of goods vehicles, since that use had been
begun and was being continued despite the absence of planning permission. There
was no appeal against that enforcement notice which
There were
then two prosecutions of Mr Harwood and he was fined on each occasion: on
October 1 1991, for failure to comply with the enforcement notices in relation
to building Z and the change of use; and on May 27 1993 for failure to comply
with the enforcement notice in relation to the change of use.
On about May
21 1993 Mr Harwood, having the advantage this time of a planning consultant (Mr
Gray) acting on his behalf, lodged outline planning applications with the
council. But, as I understand it, on a suggestion by the council that it would
be better to consider details, these were withdrawn and replaced by two
planning applications lodged on July 13 1993 by Mr Gray on Mr Harwood’s behalf.
One of these sought permission for the change of use of the land in question to
use for the maintenance and repair of commercial vehicles for a limited period
of five years. That is to say, in substance it was the same as the application
for permission for change of use which had been dismissed, but this one was to
be limited to five years. The rationale of the five-year limitation is that
certain adjoining green belt land is currently used for gravel extraction, but
the permission for gravel extraction will expire in five years’ time. It is
then intended that the gravel workings will become a wildlife sanctuary.
The second
application sought permission, again limited to five years, to convert a
redundant agricultural building, the brick-built former stables and piggeries
of Sycamore Farm, for residential purposes, that is to say as a home for Mr
Harwood and his wife and two small children.
In the
meantime, true to form, Mr Harwood went ahead with the conversion without
planning permission. This brick-built conversion from the former piggeries has
been referred to, for convenience, as building X. Mr Robert Gray QC (for the
council) disputes that what has happened amounts to a conversion of a redundant
agricultural building into a dwellinghouse. He says that the old piggery
building has been demolished and a new brick-built bungalow has been built on
the site. We do not have to decide that. It appears that the requirements of
the building regulations, as opposed to planning law, have by now been
satisfied and Mr Harwood and his family have moved into building X.
The two
planning applications of July 13 were refused by the council on August 20 1993.
On the day
before, August 19, Curtis J granted the council four injunctions on ex parte
application by the council. Also on that day the writ in this action was
issued.
The four
injunctions granted were injunctions to restrain Mr Harwood from:
(a) continuing to use the land in question for
the purposes of the storage of motor vehicles,
(b) moving or causing or permitting any person to
move into occupation of Building X,
(c) moving or causing any person to move into
occupation of Building Y,
which is not
relevant to this appeal ‘other than for purposes of agriculture’, and
(d) retaining Building Z and/or continuing or causing
or permitting any person to be in residential occupation of Building Z.
The
injunctions which Colman J discharged on September 7 were (a) and (b). He
discharged them on undertakings by Mr Harwood:
1. To
prosecute appeals against the refusals of planning permission of the 20th
August with all due diligence.
2. To
demolish Building Z within 28 days, and
3. That in
the event of the final dismissal of the appeals he will comply with all then
existing Enforcement Notices in all respects.
The judge
reserved the costs of the application.
The primary
question for us is whether the judge was entitled to make that order in the
circumstances of this case and in the exercise of his discretion. However,
there have been certain further developments. That is to say:
1. Building Z
has been demolished and exists no more.
2. Though the
action has proceeded no further than the service of a statement of claim by the
council about a week ago, the public inquiry on Mr Harwood’s appeals against
the planning refusals has been fixed for March 22 1994. It is thus plain to
this court, although it was not necessarily so at the time of the hearing
before the judge, that the planning appeals will have been decided well before
there is any trial of the action.
3. Mr Harwood
has ceased using the land in question for the maintenance and repair of
commercial vehicles and has offered an undertaking to this court not to
recommence that use of the land unless and until planning permission for the
change of use has been granted.
In addition the
council have offered an undertaking that if injunction (b) granted by Curtis J,
forbidding occupation of building X, is restored, the council will provide Mr
Harwood and his family with temporary accommodation as homeless persons with a
priority need until his planning appeals have been disposed of.
So far as that
is concerned, it is, in my judgment, much more appropriate in the circumstances
and in view of the delays in enforcement procedures which there have already
been, that the restored injunction (b) should be suspended pending the decision
of the planning appeals, rather than that Mr Harwood and his family should at
this juncture be moved into interim temporary accommodation.
Colman J heard
this case on a short appointment in the judge in chambers list. Not
surprisingly, therefore, he did not deliver a very detailed judgment.
As I read the
note of his judgment, however, he attached particular importance to the fact
that the application before him was for interlocutory relief in advance of the
trial of the action. He was therefore concerned at what would be decided at the
trial of the action and he feared that if, by the time of the trial, Mr Harwood
was no longer on
commercial vehicles, that would militate against Mr Harwood’s chances of
resisting injunctions at the trial.
In so doing
the judge was, I apprehend, applying the law as laid down by another division
of this court, Fox and Butler-Sloss LJJ, in East Hampshire District Council
v Davies [1991] 2 PLR 8. There, Fox LJ said (at p11E to F):
This is an
application for an interlocutory injunction and must be determined in
accordance with the American Cyanamid principles. As to those,
there is, in my view, a serious issue to be tried in the action. It is not, I
think, in dispute that the defendant’s activities are in breach of the planning
law. The issue to be tried is whether it is a proper case for the grant of a
permanent injunction.
In my
judgment, the law as stated in East Hampshire District Council v Davies
is not automatically applicable to applications under section 187B. By that
section Parliament has granted the court a clear power to grant injunctions to
enforce planning control over actual as well as apprehended breaches of
planning control and it cannot have been the intention where there has been an
actual breach that that power should only be exercisable at the trial of the
action with interlocutory applications confined to preserving the status quo of
continuing infringement of planning control until trial.
The opposite
side of the coin is of course, as Balcombe LJ pointed out in a somewhat
different context in Mole Valley District Council v Smith [1992]
3 PLR 22 at p33, that in withholding an injunction the court would be giving
temporary planning permission for the continuation of some activity for which
the planning authorities have consistently refused permission.
It has also,
in my judgment, to be borne in mind that, save in the limited circumstances
specified in section 70(A) of the Town and Country Planning Act 1990, any
person is entitled to renew at any time, or renew with modifications, a
planning application which has been refused by the planning authority. In my
judgment, Colman J misdirected himself in concentrating on the interlocutory
nature of the application without considering the underlying position.
In the
circumstances I have no doubt that he was wrong to discharge the injunction (a)
granted by Curtis J restraining the use of the land for the storage of motor
vehicles. Planning permission for such use of the land has been persistently
refused by the planning authorities. An enforcement notice took effect and I
can see no reason why Mr Harwood should be allowed the privilege of continuing
the use without planning authorisation. Let him obtain planning permission
before he resumes the use.
As for
injunction (b), the occupation of building X, I accept that the planning appeal
in respect of building X may have better prospects of success than any planning
application or appeal in relation to building Z because Mr Harwood may be able
to invoke, in relation to building X, the provisions of para 16 in PPG2 of
January 18 1988, which is
and also because building X is of brick construction and is less likely to
become derelict than building Z.
Again, the
position is that Mr Harwood went ahead with the conversion (or construction as
Mr Gray QC would have it) of building X, well knowing that he did not have any
relevant planning permission and at the time of the hearing before Curtis J he
had not actually entered into occupation of building X.
He should not,
in my judgment, have been allowed to jump the gun by the order of Curtis J being
discharged.
I would
therefore allow this appeal and restore the injunctions (a) and (b) granted by
Curtis J but, in the circumstances, I would suspend injunction (b) until the
planning appeal in relation to building X has been determined.
STUART-SMITH
LJ: I agree with the proposed order of Dillon LJ
and I agree that the appeal should be allowed for the reasons which he has
given.
HOBHOUSE LJ:
I also agree both with the proposed order and the
reasons of Dillon LJ.
I would only
add a word about the role of interlocutory injunctions in cases such as this.
First of all,
in view of the terms of section 187B, it is desirable that the procedure
adopted by plaintiff councils should be one which enables the substantive
application to be heard by the court at as early a date as possible. They may
wish to consider whether proceeding by way of action commenced by writ is the
suitable procedure. It is liable to give rise to the situation which we have in
the present case and the procedural complications which then ensue.
I do not, of
course, wish to discourage, in appropriate cases, applications ex parte
for immediate injunctions where the circumstances are thought to justify such
an application.
Second,
section 187B has radically transformed the matters which the court has to
consider, in comparison with those which the courts had to consider in the
cases of Bovis, Green and Davies, to which Dillon LJ has
referred. In those cases the court was concerned with an exceptional
jurisdiction, as is made clear in the judgment of Bingham LJ in the Bovis case.
That jurisdiction derives from the case of Gouriet v Union of Post
Office Workers [1978] AC 435 and was described by Bingham LJ on the page
cited in these terms:
It is made
plain by the highest authority that the jurisdiction to grant an injunction in
support of the criminal law is exceptional and one of great delicacy to be
exercised with caution.1
1City of London Corporation v Bovis Construction
Ltd [1992] 3 All ER 697 at p714.
The judgment
of Bingham LJ then develops the considerations that
considerations are further referred to in the cases of Green and Davies.
Under section
187B, the position, as manifestly intended by the legislature, is a much more
simple one. It is an application for an injunction which may be made when the
criteria in section 187B are satisfied and it is not necessary to consider the
more difficult questions of public policy and statutory intent, which have to
be considered when an injunction in support of the criminal law is being
applied for.
It follows
that, when the application for the permanent injunction is being heard, the
matters which have to be considered by the court under section 187B are of a
much narrower compass than are potentially raised by the exceptional
jurisdiction.
It is
important, when considering the question of an interlocutory injunction, that the
court should take into account the different regime under section 187B and the
very narrow scope of the potential dispute upon the hearing of the application
for the permanent injunction. The court should have regard to and take into
account this important difference in any assessment of the balance of
convenience on Cyanamid1 principles that is appropriate in
such circumstances.
1American Cyanamid Co v Ethicon Ltd
[1975] AC 396.
Appeal
allowed with costs.
Editor’s Note: This case, Runnymede Borough
Council v Harwood, and Croydon London Borough Council v Gladden
were heard together in the Court of Appeal. The judgments, although given
together, are totally separate and have been treated as such.
