The High Court refused in Stratford on Avon v Persimmon Homes Ltd [2015] EWHC 3593 (QB); [2015] PLSCS 368 to grant an injunction requiring compliance with construction phase planning conditions as being disproportionate and oppressive.
Planning permission was granted for a housing scheme on appeal. Conditions required approval of, and compliance with, an Environmental Construction Statement. The authority alleged breaches of these conditions during the construction phase (relating to delivery hours and traffic management). It served five Breach of Condition Notices under section 187A of the Town and Country Planning Act 1990 over a seven-month period.
The developer did not challenge these by judicial review. Rather than seek a magistrates’ court prosecution for ongoing breaches, the authority applied to the High Court for injunctions requiring compliance with the conditions, under Section 187B of the Act. This allows planning authorities to apply for an injunction, regardless of whether they have exercised alternative powers, where they “consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction”. Section 187B(2) provides that “the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach”.
The deputy judge held that an injunction would be disproportionate. He cited South Buckinghamshire District Council v Porter [2001] EWCA Civ 1549; [2002] 3 PLR 1, emphasising that injunctions should only be granted under section 187B where the judge is ultimately prepared to commit the defendant to prison and has weighed the “degree and flagrancy” of the breach, and the urgency and proportionality of injunctive relief. He considered that a single breach of any injunction (eg of a lorry arriving late) would result in criminal conviction. Given the absence of evidenced harm, that would be excessive. Plus, the injunctions sought went beyond some of the evidenced breaches, he held. The judgment is a reminder of the level of judicial discretion in undertaking a many-layered weighing exercise when considering enforcement injunctions. It also shows the importance of evidence for both sides. The developer must prove an injunction is not required. It is able to raise points that could have been raised by way of judicial review of the Breach of Condition Notices. It should have a thorough audit trail of site activities to show compliance or at least good faith.
For authorities, the case emphasises the need to explore practical alternatives to injunctions where appropriate, and ensure there is real evidence of both breaches and a pressing need to restrain them.
Roy Pinnock is a partner in the planning and public law team at Dentons
