Injunction — Market operating since 1982 without planning permission — Market use continuing in breach of enforcement notice — Whether appropriate case for grant of interlocutory injunction — Whether delay in applying ground for refusing injunction — Relevance of pending planning application — Scope of injunction to be granted — Preservation of rights under general development order
In November
1982 the defendant company (‘Wass’), without obtaining planning permission,
began to operate a Thursday market on a site (site 1) at Longton,
Stoke-on-Trent. On November 15 1982 an enforcement notice was served by the
plaintiff local planning authority. In June 1983 an appeal by Wass against the
notice was dismissed and a further appeal to the High Court was dismissed by
Woolf J in January 1984. The plaintiffs laid an information against Wass in
April 1984 alleging use of site 1 in contravention of the enforcement notice.
The hearing of the information was adjourned pending the outcome of an appeal
by Wass against the deemed refusal of an application, made in October 1983, for
planning permission for the market use. That appeal was also dismissed and in
October 1985 Wass were convicted of the offence and fined £ 1,000. On February
13 1986 Wass transferred the market to an adjoining site (site 2) and on
February 21 1986 they applied for the appropriate planning permission. That
application was refused and on July 3 1986 an enforcement notice was issued in
respect of site 2. Wass appealed against both the refusal of planning permission
and the enforcement notice. On March 4 1987, in separate proceedings in the
Chancery Division, an injunction was granted to the council restraining Wass
from holding their market on Thursday in infringement of the council’s
statutory market rights. On March 11 1987, and in response to that injunction,
Wass changed their market day to Tuesday. In October 1987 the planning and
enforcement notice appeals were dismissed.
Following
further unsuccessful appeals to the High Court and the Court of Appeal, time for
compliance with the enforcement notice eventually expired in April 1990 but the
unlawful use continued. In January 1991 the plaintiffs issued a writ seeking an
order restraining the company ‘from using or causing or permitting to be used
for retail sales . . . land between Dividy Road and Mossfield Road or any other
land in the area of the plaintiff[s] as local planning authority’ and they
applied for an interlocutory injunction in the same terms. Shortly before the
motion was due to be heard, Wass made an application for planning permission
for the market on an enlarged site they then owned, and a further application
concerning an improved access to that site. Wass opposed the application for an
injunction on the grounds that the council
the company for failing to comply with the July 1986 enforcement notice nor had
they moved expeditiously for injunctive relief and no irreparable damage was
likely to be suffered if the market continued until trial. Wass also contended
that the earlier objections to granting planning permission had been overcome.
1. Adopting
the criteria set out by Bingham LJ in City of London Corporation v Bovis
Construction Ltd (1988) 86 LGR 660 at p 682, the court was satisfied that
unless restrained from doing so the defendants intended to continue carrying on
a weekly market which they knew to be unlawful and in breach of the criminal
law. The whole history since 1982 made it plain that further criminal
proceedings would be most unlikely to dissuade them from continuing: see p
28A-F. The court did not have the material to decide whether the pending
planning applications were likely to be successful, even if that were a proper exercise
to attempt. There was no planning permission yet and the court must proceed on
the basis that the applications might succeed or might not. It was not for the
court to prejudge the decision of the planning authority: see p 29D-E. By a
succession of planning appeals, all of which had so far failed, the company had
drawn out the planning process for years. No suggestion was made that the lapse
of time before seeking an injunction had misled Wass or caused the company to
change their position. The submission that the council should have applied for
an injunction in 1986 and that their failure to do so disentitled them to
relief was ‘breathtakingly audacious’. Lack of urgency did not weigh in a case
where there was no arguable defence against the grant of a permanent injunction
at the trial nor was it an answer to a claim for an interlocutory injunction
that the plaintiffs could have obtained summary judgment under RSC Ord 14: see
pp 29G-30B. The fact that the market was financially successful was no ground
for permitting its continuance nor was it relevant that closing the market
would result in employees of the company being made redundant. The market might
be satisfying a local need but that was a consideration for the planning
authority in deciding whether to permit the use: see p 30C-E. Taking all
matters into account, the court was satisfied that nothing short of an
injunction would deter the company from resolutely defying the planning laws.
2. The form of
injunction sought (to apply to all retail sales) was too wide and it should be
limited to the operation of a retail market. However, it was not too extensive
geographically: if limited to site 2 its purpose would all too easily be
frustrated by Wass moving the market to an adjoining field they now owned. The
injunction should be framed so as not to bite on any market held with planning
permission, including that granted by the Town and Country Planning General
Development Order 1988: see pp 30H-31D. However, if Wass were to continue
holding a weekly market for the rest of 1991, that would be a continuation of
the existing unlawful use: the company did not have the benefit of a fresh
14-day permission under the GDO in the current calendar year; Tidswell v
Secretary of State for the Environment (1976) 34
they owned or occupied comprised more than one planning unit so as to entitle
them to GDO rights on each unit could not be determined on the material before
the court but the fact that the issue might arise subsequently in contempt
proceedings was not a sufficient reason for refusing an injunction or for
confining its scope to site 2: see p 32D-E.
to in the judgment
City of
London Corporation v Bovis Construction Ltd
(1988) 86 LGR 660; [1989] JPL 263, CA
Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196;
[1963] 2 WLR 225; [1963] 1 All ER 459; (1962) 61 LGR 152; 14 P&CR 266;
[1963] EGD 572; 185 EG 835, CA
Stoke-on-Trent
City Council v B & Q plc [1991] Ch 48;
[1991] 2 WLR 42; [1991] 4 All ER 221
Stoke-on-Trent
City Council v W & J Wass Ltd [1988] 1
WLR 1406; [1988] 3 All ER 394; (1988) 87 LGR 129, CA
Tidswell v Secretary of State for the Environment (1976) 34 P&CR
152; [1977] JPL 104; 241 EG 83, [1977] 1 EGLR 114, DC
Application
for interlocutory injunction
This was an
application by Stoke-on-Trent City Council for an interlocutory injunction to
restrain the defendants, W & J Wass Ltd, from using or causing or
permitting to be used for retail sales land between Dividy Road and Mossfield
Road, Longton, or any other land in the area of the plaintiffs as local
planning authority.
QC and Robin Campbell (instructed by Sharpe Pritchard) appeared for the
plaintiffs, Stoke-on-Trent City Council.
Cullen QC and Philip Petchey (instructed by Bishops, of Stoke-on-Trent)
appeared for the defendants, W & J Wass Ltd.
following judgment was delivered.
SIR DONALD
NICHOLLS V-C: This is the latest stage in an
unfortunate, long-running saga between Stoke-on-Trent City Council and W &
J Wass Ltd (to which I shall refer for convenience simply as Wass). Since
November 1982 Wass have been carrying on a market one day a week at Longton,
Stoke-on-Trent. The plaintiff local authority are the local planning authority.
On certain days each week the plaintiffs themselves carry on a market, under
their statutory powers, and they do so well within the common law radius of six
and two-thirds miles of the site of Wass’ market.
Ever since
1982 the plaintiffs, wearing one or other of their two hats as the local
planning authority and the owners of statutory market rights, have been seeking
to stop Wass’ market activities at Longton. Planning permission has never been
granted to Wass for their market activities and the plaintiffs contend that the
market is also being carried on in infringement of their market rights.
Before me is
an application by the plaintiffs for an interlocutory injunction. In this
action the plaintiffs are wearing their planning authority hat. The plaintiffs’
case is that Wass pay no heed to the
heed to criminal proceedings brought in respect of contraventions of
enforcement notices. Fines do not deter Wass from carrying on their market
business as a sideline to their principal business of haulage contractors. The
market business is profitable and has proved a valuable source of revenue for
Wass in the days of recession in the Potteries and nearby, which have adversely
affected Wass’ main business. Enough is enough, say the plaintiffs, and it is
time for Wass to be required to comply with the law by the only means which
Wass will heed, namely the grant of an injunction.
In short,
Wass’ case is that no interlocutory injunction should be granted. The market
satisfies a local need; for years it has been apparent that Wass intended to
continue to hold their market and the plaintiffs have for years taken no steps
to obtain injunctive relief. Planning applications by Wass are awaiting
decision and those applications should succeed because the new access
arrangements proposed by those applications will cure the only outstanding
planning problem.
I must, before
going further into the arguments, now refer, as briefly as I may, to the
relevant protracted history. As I have said, Wass commenced their operation of
holding a weekly market, which was originally on Thursday each week, in
November 1982. That was on a site (referred to in the proceedings as site 1)
which is a roughly rectangular piece of land lying between Dividy Road and
Mossfield Road. The site was otherwise used as a road haulage depot and in one
corner were some large, warehouse-type buildings. One or more of these was used
for an indoor market on Thursdays, with other stalls being placed outside.
On November 15
1982 an enforcement notice and a stop notice were served. Wass appealed to the
Secretary of State for the Environment against the enforcement notice. The
effect of that was to suspend the operation of the enforcement notice pending
the final outcome of the appeal.
In May 1983
the inspector appointed by the minister held a public inquiry into the appeal
and on June 8 the appeal was dismissed. On July 2 Wass applied to the High
Court to quash the Secretary of State’s decision on the appeal. That again had
the effect of suspending the operation of the enforcement notice. In October
1983 Wass applied for planning consent for market use on the site for Thursday
each week between 3 pm and 8 pm.
On January 30
1984 Woolf J dismissed Wass’ application to the High Court and leave to appeal
was refused. In March 1984 Wass appealed against the plaintiffs’
non-determination of their planning application of October 1983. At the end of
March, March 29 to be precise, the period for compliance with the enforcement
notice at last expired and on April 24 1984 the plaintiffs laid information
before the justices alleging use of site 1 in breach of the enforcement notice.
That information came on before the magistrates on May 9 and was adjourned
pending the outcome of the decision on Wass’ appeal against the plaintiffs’
non-determination of their planning application of October 1983.
In July 1984
that appeal was dismissed. In August Wass applied to the High Court to quash
that appeal decision. In the same month the
again by the magistrates pending hearing of Wass’ application to the High
Court. The plaintiffs then themselves applied to the High Court to quash that
adjournment decision. In July 1985 the Divisional Court acceded to that
application and directed the justices to proceed to hear the case forthwith.
The
Newcastle-under-Lyme magistrates duly did so and on October 11 they convicted
Wass and imposed a fine of £ 1,000. Wass thereupon gave notice of appeal by way
of case stated against that conviction. In December 1985 that appeal was
treated as abandoned, Wass not having identified any question of law.
And so the
matter goes on into 1986. On January 10 the plaintiffs laid a further
information alleging a further breach of the enforcement notice and on February
12 that matter was adjourned by the magistrates for trial in March 1986.
Thus far, from
November 1982 to early February 1986, Wass had been carrying on their market on
Thursdays on site 1. On February 13 1986 Wass transferred their Thursday market
activities to a site, site 2, adjoining site 1 to the north west. Stalls were
located on site 2, with car parking being provided on site 1. Site 2 is still
being so used by Wass, although the day on which the market is held has been
changed, as I will mention. That was on February 13 1986.
On February 21
1986 Wass applied for the appropriate planning permission. On March 19 the
magistrates convicted Wass of a further offence in relation to site 1 and fined
the company £ 1,200. Wass appealed against that conviction. On May 14 the
plaintiffs refused to grant planning consent as sought for site 2 and on July 3
an enforcement notice was issued.
Wass appealed
against both the refusal of planning consent and the enforcement notice. In
October Wass’ appeal against conviction on March 19 succeeded on the basis that
there was no evidence showing that the company, as opposed to their two
directors personally, were in breach of the enforcement notice.
Meanwhile, in
March 1986, the plaintiffs had issued a writ alleging infringement of their
market rights. Judgment was given at the trial of that action on March 4 1987.
An injunction was granted against Wass holding a market on Wednesday, Thursday,
Friday or Saturday, those being days on which the plaintiffs were themselves
holding one of their statutory markets. The judge, Peter Gibson J, was not
satisfied that Wass’ market was causing any actual damage to the plaintiffs’
markets and therefore granted no injunction against the holding by Wass of
other-day markets. Wass appealed against the grant of the injunction and the
judge’s order for an inquiry as to damages.
On March 11,
and in response to that judgment, Wass changed the day on which they held their
market on site 2 from Thursday to Tuesday. That is the day on which Wass’
market is still being held at Longton.
In June 1987 a
public inquiry was held on Wass’ appeal against the refusal of planning
permission and the enforcement notice issued in July 1986. That appeal, which
thus is the third planning appeal of Wass, was
quash the appeal decision.
In May 1988
Wass abandoned their appeal against the market action injunctions but succeeded
on their appeal so far as the judge had directed that there was to be an
inquiry as to damages. The Court of Appeal [[1988] 1 WLR 1406; [1988] 3 All ER
394] held that only nominal damages could be awarded. On February 2 1989
Popplewell J dismissed Wass’ application to quash the planning appeal decision.
He granted leave to appeal so far as that was necessary.
On September
14 1989 a second market action was started by the plaintiffs in which the
plaintiffs claimed an injunction with regard to Wass’ current Tuesday market
which, so it is said, is now a same-day market, in that the plaintiffs are now
holding a market on that day as well as other days. On February 16 1990 the
Court of Appeal dismissed the appeal from Popplewell J’s decision.
So at long
last, on April 14 or 15 1990, the time for complying with the enforcement
notice regarding site 2, which had been issued almost four years earlier, on
July 3 1986, expired.
In September
1990 the plaintiffs’ relevant subcommittee considered a report on Wass’
continued use of the land at Longton for a market, having taken legal advice on
the course that the plaintiffs should follow. On November 29 a letter before
action was sent to Wass to which no response was forthcoming.
So at long
last after that protracted history, on January 7 1991 the plaintiffs issued a
writ claiming an order restraining the defendants ‘from using or causing or
permitting to be used for retail sales (the expression retail sales for the
avoidance of doubt including any market or concourse of buyers and sellers)
land between Dividy Road and Mossfield Road or any other land in the area of
the plaintiffs as local planning authority’.
On January 16
the notice of motion, which was issued on January 8, came on for its first
hearing. By that notice of motion (which is now before me) the plaintiffs seek
interlocutory relief in terms corresponding to the injunction sought in the
indorsement on the writ. The motion was then directed to be adjourned and come
on as a motion by order. A hearing date of October 14 – that is to say
yesterday – was fixed in April 1991.
I should mention
a further point. Three other planning applications have since been made by
Wass. The first was in April, replacing and superseding an application made in
February. By that application Wass applied for planning permission to improve
access to their land. Then, shortly before this motion was due to be heard, on
September 30 Wass made an application for use of certain land on the enlarged
site they now own for market purposes. On October 1 a further application was
lodged concerning improved access to that site. Those applications are still
awaiting determination by the plaintiffs.
The
subject-matter of this action is contravention of the planning legislation. In
that legislation Parliament has made express provision for the penalties
flowing from a failure to comply with the statutory requirements. Parliament
has prescribed criminal sanctions, with a fine as the prescribed penalty.
Despite that, it is now well established that a
with the law.
For present
purposes the approach the court should adopt can be found sufficiently
summarised in a passage in a judgment of Bingham LJ in City of London
Corporation v Bovis Construction Ltd (1988) 86 LGR 660 at p 682,
which in a slightly abridged form was quoted by Hoffmann J in Stoke-on-Trent
City Council v B & Q plc [1991] Ch 48 at p 73.
The quotation
reads as follows. Hoffmann J said:
The criteria
for the grant of an injunction were summarised as follows by Bingham LJ in City
of London Corporation v Bovis Construction Ltd:
‘(1)
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’.
That is the
end of the quotation from Bingham LJ and Hoffmann J continued:
Of course I
accept that the whole of this is predicated on the assumption that the court is
satisfied that the conduct in question is criminal.
Against the
background of the facts as I have sought to summarise them (although the
summary was regrettably long) the position, as it seems to me, is clearly as
follows. Wass each Tuesday are carrying on a market on site 2 in contravention
of the planning legislation and in breach of the enforcement notice which was
served some years ago. In so doing, Wass, week after week, are committing a
criminal offence. This conduct, and similar conduct previously in relation to
site 1, has continued since November 1982. Unless restrained from doing so Wass
intend to continue such conduct which, as they know, is unlawful and is a
criminal offence. Further criminal proceedings would be most unlikely to
dissuade Wass from continuing. The whole history makes this plain beyond a
peradventure. Wass, indeed, do not suggest otherwise. On the contrary, before
me Wass have sought to rely on this as a defence to this application, saying
that their determination to carry on with their market has been obvious since
at least 1986 when the use of site 2 started but the plaintiffs took no steps
to obtain an injunction for years.
Against that
factual background I must decide whether it is just and convenient to grant an
interlocutory injunction, bearing in mind what I have just said and also all
the other material circumstances.
At the
forefront of their evidence Wass present a contention that at last the planning
difficulties have been overcome and now there can be no sustainable objection
to the grant of planning permission for the use of Wass’ land as a market.
In March 1990
Wass acquired additional freehold land, largely abutting Dividy Road, with
rights of access on to that road. Wass envisage that now there should be a new
roundabout at the junction of Dividy Road and Beverley Drive, with a new access
for cars to the Wass land. It is in respect of these works that they have made
one of their applications for planning permission. The carrying out of those
road works and access works would dispose of the only continuing planning objection.
What is said is that the inspector who heard Wass’ appeal in 1987 found against
Wass on two points: first, the adverse impact the market would have on the
viability and vitality of retail shopping in the nearby town centres,
particularly Longton; second, the market produces traffic congestion and a
heightened danger of traffic incidents, particularly to pedestrians crossing
Dividy Road to the site from the nearby housing estate. On appeal Popplewell J
held there was no evidence to support the first of these two objections. So,
submit Wass, that is no longer a planning objection; if there were any such
evidence the plaintiffs would have produced it.
I have to say
that in so far as the case presented by Wass depends upon an assessment of the
likelihood of there now being a successful planning application, I am not
impressed, for this reason. I do not have the material before me to decide
whether the pending planning applications are likely to be successful even if
(which I doubt) that were a proper exercise for me to attempt. The stark fact
is that there is no planning permission yet; the applications on which reliance
is principally placed have only just been made, although the additional land
was acquired some 18 months ago and the date for the hearing of this
application for an injunction was fixed six months ago. I must proceed on the
basis that the planning applications may or may not succeed. It is not for me
to prejudge the decision of the planning authority.
Then it is
said, in effect, that there is not here any such urgency as would justify an
interlocutory injunction. There will be no irreparable damage likely to be
suffered pending the trial. The only possible candidate is the potential danger
to pedestrians, but there is no evidence that this danger still exists. The
plaintiffs, it is said, have shown no urgency in dealing with the matter. The
planning application made last April has not yet been determined; Wass have not
been prosecuted for non-compliance with the July 1986 enforcement notice, although
time for compliance, as I have said, expired in April 1990; the plaintiffs have
not moved expeditiously for injunctive relief, for which they should have
applied years ago if that is the course they wished to follow; this is not a
proper application for interlocutory relief because of the conduct of the
plaintiffs in delaying.
None of this
impresses me. By a succession of planning appeals, all of which have so far
failed, Wass have drawn out the planning process for years. I find it difficult
to resist the inference that, certainly at times, they have done so cynically.
Nor is there any suggestion by Wass that the lapse of time from February 1986
to April 1990 or the lapse of time thereafter from April 1990 when the
enforcement notice became operative to the start of this action has somehow
misled Wass or caused them to change their position. I confess that I find
Wass’ submission
applied for injunctive relief if that is what they wished as far back as 1986,
and that their failure to do so provides reason for not granting an injunction,
a breathtakingly audacious submission. As to there being no urgency, this does
not weigh with me in a case where, as matters stand at present, Wass have no
arguable defence against the grant of a permanent injunction at the trial. If,
as here, there is no defence, I do not think it is an answer to a claim for an
interlocutory injunction to say that the plaintiffs could have obtained summary
judgment under Ord 14.
Wass have
advanced a plea ad misericordiam that the turnover of the market
represents about 7% of their gross annual turnover. The market has been making
a net contribution to the company’s financial position of almost £ 100,000 in
1990 and up to the end of July 1991 a net contribution of £ 67,000 in the
current year. There is evidence that with the recession the market has become
vital once more to the Wass business and to the employment of their 70 or so
employees. The evidence is that without the market Wass envisage that it would
be necessary to put a significant number of those employees on short time and
others would have to be made redundant.
I have to say
that, in the overall context of this matter, that plea cuts no ice with me. Wass
have always known that their market business was precarious. They have had six
months’ notice of this application for an interlocutory injunction. The fact
that the market is financially successful affords no ground for permitting its
continuance. The business may, indeed, be said to satisfy a local need in the
sense that the market is attracting many customers, but that is a consideration
for the local planning authority in deciding whether or not to permit the use
of this land for market purposes.
Taking into
account all these matters I am satisfied that this is a case in which I should
grant an injunction. Nothing short of this, apparently, will deter Wass from
resolutely defying the planning laws. In reaching this conclusion I have also
taken into account submissions made on behalf of Wass regarding the
difficulties which, it is said, surround the form of any injunction and which,
it is said, assist in showing that no injunction should be granted. I shall
turn to those in a moment.
First I should
add this: I have also considered whether as a practical matter it is right to
grant an injunction against the continuance of a business activity which has
subsisted for many years when the carrying on of that business might become
lawful comparatively soon and might do so before the trial. That is a factor
that I take into account, but overall I am more impressed by the fact that the
planning battle (as it seems to have become) between the plaintiffs and Wass
may be far from over.
I turn now to
the submissions made regarding the form of any injunction which should be
granted. First, objection is made to the injunction applying to all retail
sales. It is said that is too wide. I agree. The injunction should be limited
appropriately to the operation of a retail market.
Then it is
said that the injunction is too extensive geographically in that it bites not
only on site 2 but on any other land in the area of the plaintiffs. It is said
that the injunction should be confined to the land
2. I am not able to accept this. The purpose sought to be achieved by the grant
of the injunction would be all too easily frustrated if Wass could simply move
the location of the site of the market from site 2 to an adjoining field now
owned by them.
Then it is
said that the form of the injunction should be careful to exclude from its
ambit the rights of Wass under the general development order. Article 3 of the
Town and Country Planning General Development Order 1988, so far as material,
provides in para (1):
. . .
planning permission is hereby granted for the classes of development described
as permitted development in Schedule 2.
Part 4 of
Schedule 2 provides as follows for Class B:
B. The use of
any land for any purpose for not more than 28 days in total in any calendar
year, of which not more than 14 days in total may be for the purpose referred
to in paragraph B.2 . . .
Para B.2
provides, so far as material:
the purposes
mentioned in class B above are –
(a) the holding of a market . . .
What is said,
in my view correctly, is that the injunction should make plain that it does not
bite on any market which is held in accordance with any planning permission
which has been granted and that that includes the planning permission granted
by the general development order. The injunction should be explicit on that.
There is a
dispute between the parties on what is the effect of the general development
order as applied in the present case. I was referred to the decision of the
Court of Appeal in Miller-Mead v Minister of Housing and Local
Government [1963] 2 QB 196 and to passages in the judgments of Upjohn LJ at
p 231 and Diplock LJ at pp 241 and 242. I was also referred to the decision of
the Divisional Court in Tidswell v Secretary of State for the
Environment (1976) 34 P&CR 152.
For Wass it
was submitted that these authorities establish that temporary use and permanent
use of a site are different uses. In particular, reliance was placed on a
passage in the judgment of Forbes J in the Tidswell case at p 156 where
he said:
. . . there
was ample evidence to show that the use which he [that is the appellant] was
making of this land was not what one might call a 14-day use but a permanent
use. The 14 days started on June 23 1974. The appellant had held a market on
every Sunday from that date until the date of the inquiry in April 1975. In
those circumstances it seems to me to be proper to look at that and say that
there is a distinction between a use which is what I call the ’14-day use’ (a
use which is only going to be a temporary one) and a use which is a permanent
one, a distinction which was made by Diplock LJ in Miller-Mead . . .
In reliance
upon these authorities Wass advanced a submission to the following effect. If
an injunction is granted the present permanent use which Wass make of site 2
will cease. But the effect of the injunction will
means that Wass will be free to make what Forbes J described as a 14-day use of
the land. There can be a temporary use made by Wass of this land for market
purposes for 14 days in any one calendar year, after the grant of the
injunction, and that temporary use will be a new and different use from the injuncted
permanent use now being made of the land. Thus, it is said, Wass will be free
to use site 2 for 14 days for market purposes between now and the end of 1991.
It happens that there are fewer than 14 Tuesdays between now and December 31
1991. So Wass will be at liberty to carry on a market use each Tuesday for the
rest of this year. When one turns into 1992, with a new calendar year Wass will
have a further 14 days’ permitted use in that year also.
I cannot
accept this. The distinction drawn in the Tidswell case, as there
expressed, is I confess one with which I have considerable difficulty. Be that
as it may, in my view if an injunction is granted now and Wass were to continue
to hold a market week by week, that in law would be a continuance of the existing
unlawful use. Wass do not have the benefit of a fresh 14-day permission in the
current calendar year by virtue of the general development order.
Then it was
submitted that there are now four planning units comprised in the land owned or
occupied by Wass. Thus Wass are entitled to conduct a market weekly for 14
weeks on each of the four separate planning units. It is common ground that I
cannot decide whether there is here one planning unit or more than one planning
unit – I do not have the material to do so apart from any other consideration.
The consequence of that is that following the grant of an injunction Wass will
have to take, so far as this contention is concerned, such course as they may
decide having taken advice. That may, unfortunately, mean that the correctness
of that course will become an issue on a contempt motion, but I do not think
that is a sufficient reason for not granting an injunction or for confining its
scope to site 2.
For those
reasons I shall grant an interlocutory injunction in terms reflecting the views
I have expressed in this judgment.
Order that
after the expiration of seven days the defendants do not use or cause or permit
to be used as a retail market land between Dividy Road and Mossfield Road or
any other land in the area of the local planning authority save in so far as
such use is by virtue of planning permission granted under Part III of the Town
and Country Planning Act 1990 or article 3 and Class B in Part 4 of the GDO
1988. Plaintiffs’ costs in cause.
Editor’s
note: Wass appealed against that part of the
Vice-Chancellor’s judgment which decided that they could not rely on GDO rights
to hold markets for the remainder of 1991. However, shortly before the appeal
was due to be heard the council issued a direction under article 4 of the GDO
withdrawing the permitted development rights, so that the appeal became
academic. Accordingly, the matter was not argued and on November 12 1991 the
Court of Appeal (Sir Stephen Brown P, Stocker and Scott LJJ) approved an agreed
order whereby the proviso to the injunction was amended to read simply: ‘save
in so far as any such use is permitted under the Town and Country Planning Act
1990’.
