Airport — Enforcement notice — Unauthorised use of land — Injunction — Whether breaches of planning control — Whether appropriate to strike out proceedings for injunctive relief — Application granted
The claimant local planning authority were responsible for an airport operated by the first defendant, which had acquired permitted development rights. In 2003, the defendants constructed a new passenger facility at the airport when setting up a low-cost airline.
No planning permission had been obtained prior to the construction of the facility, and the claimants served two enforcement notices for a breach of planning control. The notices required cessation of the use of the new passenger terminal within seven days and the removal of the building within 28 days. The claimants contended that the operation of the terminal and associated facilities would cause significant environmental harm in terms of noise, air pollution and traffic congestion. The defendants appealed against the notices, arguing that the development fell within their permitted development rights, or, alternatively, that any breaches of planning control were, at most, of a minor or technical nature. That appeal was pending.
The claimants decided to seek an injunction under section 187B of the Town and Country Planning Act 1990 to restrain the alleged breaches following the defendants’ refusal to give an undertaking that the use of the terminal would cease. The claimants contended that, since the new terminal exceeded 500m2 and the area of works exceeded the permitted threshold, the first defendant should have obtained planning permission.
The defendants applied to have the claim for an injunction struck out, or, alternatively, for summary judgment on their defence. They contended that the claimants were trying to circumvent the normal enforcement procedures by applying for a permanent injunction, which was inappropriate and had no prospect of success. They claimed that the circumstances were not such that urgent action was required or that normal enforcement had been tried and failed.
Held: The application was granted.
Taking all the circumstances into account, not only was there no real prospect of the trial judge granting a permanent injunction, but an application for an injunction under section 187B was wholly inappropriate in the particular circumstances and would have amounted to an abuse of process.
The court had a wide and flexible discretionary power to grant an injunction under section 187B, but this had to be exercised judicially, with due regard to the purpose for which the power had been conferred. Since an injunction was an extremely serious remedy, attended by severe punishment, it should be used only where it was plainly appropriate. It might be appropriate to grant such draconian and coercive relief in cases where an urgent remedy was required in order to prevent an anticipated and irremediable breach of planning control, and where conventional procedures would be inadequate. The court could have regard to the seriousness or otherwise of the breach, but it was not appropriate for the court to usurp the role of the planning authorities by reaching its own decision on the merits of the case: South Buckinghamshire District Council v Porter [2003] UKHL 26; [2003] 3 All ER 1 applied.
There were no factors in the instant case to justify the granting of a permanent injunction pending determination of either the inspector’s decision or any final appeal. The claimants had failed to show that the ordinary statutory means of enforcement were not likely to be effective. Nor was there any evidence of intended flagrant breaches or any history of unremedied breaches by the defendants.
Joseph Harper QC (instructed by Sharpe Pritchard, as agent for Warwick District Council) appeared for the claimants; Richard Spearman and Andrew Tabachnik (instructed by Jones Day) appeared for the defendants.
Eileen O’Grady, barrister
