|
|
Injunctions
Injunction abuse of process
Warwick District Council v West Midlands International Airport
[2004] 25 EG 170 (CS)
Facts
The landowner operated, with acquired development rights, an airport that was formerly known Coventry Airport. To accommodate a low cost airline, it constructed a new passenger terminal without planning permission. The council served two enforcement notices requiring cessation of use of the new terminal, and removal of the buildings. The landowner appealed to the Secretary of State contending that the development fell within its existing development rights. While the appeal was pending, the council sought a permanent injunction under section 187B of the Town and Country Planning Act 1990. The landowner applied to have the claim struck out on the basis that the council was trying to circumvent normal enforcement procedures.
Decision
Gloster J granted the landowners application, holding that the councils application for an injunction under section 187B was wholly inappropriate in the circumstances of the case, and would have amounted to an abuse of process. Accordingly, there was no real prospect of the trial judge granting it. The council had not shown that the ordinary statutory means of enforcement were unlikely to be effective, nor was there any evidence of intended flagrant breaches or any history of unremedied breaches by the landowner.
Comment
This decision should serve as a warning to over enthusiastic local planning authorities. Section 187B allows an application for an injunction by a local planning authority whether they have exercised or are proposing to exercise any of their other powers under this Part. However, the court clearly considers that the power to grant an injunction should be exercised judicially, given its draconian nature. Gloster J suggested, for instance, that it might only be appropriate to grant an injunction where an urgent remedy was required to prevent an irremediable breach of planning control, and conventional procedures would be inadequate.
Flagrant breach - retrospective planning application
Mid Bedfordshire District Council v Brown
[2004] EWCA Civ 1709
The Council had obtained an interim injunction preventing the defendants who were gypsies from occupying the land for residential purposes. The gypsies had moved onto the land in flagrant breach of an interim injunction. The judge suspended the operation of the final injunction until determination of the application for retrospective planning permission. The Council appealed to the Court of Appeal which held:"In our judgment, the judges decision to suspend the injunction pending the determination of the planning application did not take proper account of the vital role of the court in upholding the important principle that the orders of the court are meant to be obeyed and not to be ignored with impunity. The order itself indicated to the defendants the correct way in which to challenge the injunction. It contained an express provision giving the defendants liberty to apply, on prior notice, to discharge or modify the order. The proper course for the defendants to take, if they wished to challenge the order, was to apply to the court to discharge or vary it. If that failed, the proper course was to seek to appeal. Instead of even attempting to follow the correct procedure, the defendants decided to press on as originally planned and as if no court order had ever been made. They cocked a snook at the court. They did so in order to steal a march on the Council and to achieve the very state of affairs which the order was designed to prevent. No explanation or apology for the breaches of the court order was offered to the judge or to this court.
The practical effect of suspending the injunction has been to allow the defendants to change the use of the land and to retain the benefit of occupation of the land with caravans for residential purposes. This was in defiance of a court order properly served on them and correctly explained to them. In those circumstances there is a real risk that the suspension of the injunction would be perceived as condoning the breach. This would send out the wrong signal, both to others tempted to do the same and to law-abiding members of the public. The message would be that the court is prepared to tolerate contempt of its orders and to permit those who break them to profit from their contempt."
Gypsies - effect of new circular
South Bucks District Council v Smith
[2006] EWHC 281 (QB)
Introduction
This was application for an injunction under s187B of the Town and Country Planning Act 1990 by the Council to remove the defendants who were occupying green belt land in breach of planning control.
The case
It was clear from the detailed planning history of the site that the defendants had acted in flagrant breach of planning control for many years. The judge held that but for two developments he would have granted the injunction. These developments were the issue of the new government circular 01/2006 setting out government policy in respect of Gypsies and Travellers and the fact that pursuant to its issue, the defendants had made a further planning application.
The judge accepted submissions that the planning position had changed due to the issue of the circular. While there may have been no prospects of obtaining permission prior to this, new responsibilities on local authorities meant that permission may be granted. A further consideration was that while in the past the council had not accepted the status of the first defendant as a gyspy – the new circular undoubtedly brought him within it and this would have an impact on whether an injunction should be granted. The judge held:“45. Returning therefore to the general principles to be applied, I attach all due weight to the history of the site, the history of previous planning decisions, the unlawfulness of the Defendants’ continued occupation of the site and the public interest in enforcing planning control in the public interest. I accord all due respect to the balance which the Council have struck between public and private interests in resolving to seek the injunction. But I must balance these against the degree of hardship to the Defendants and the family which will arise from the operation of the injunction, so as to assess whether the grant of an injunction taking effect in advance of the planning permission decision is a proportionate response to the need to safeguard the environment whilst not imposing an excessive burden upon the Defendants and their family whose private interests are at stake.
46. As I say, but for the recent developments I would have struck this balance in favour of the Council, granting the injunction but allowing a reasonable time for compliance; Mr Bird proposed 6 months, which seemed a reasonable period for the Defendants to make alternative arrangements. But so long as there remains a real, even if not a good, chance that they may in due course obtain planning permission (even if only temporary or personal) pursuant to their current application, in my judgment the balance swings the other way.
47. I cannot see the need to remove the caravans from the site as so urgent and pressing, now after all these years, as to require it to proceed in advance of that final determination of the planning permission application. The removal of the residential caravans and prohibition from living on the site will bear heavily on the Defendants and their family. As a matter of fact they have at present no alternative site to go to. Even when it occurs, they will continue to run their businesses on the site, visiting the site regularly for the purpose. Their scrap metal business has been run for many years, no doubt itself in breach of planning control, but no steps have been taken by the Council to stop it. I have little doubt that that activity, involving some noise and the movement of vehicles, has some impact on the rural locality, even though (on the evidence of the planning officer) not so great an impact as the presence of the residential caravans and the Defendants and family actually living on the site.
48. Accordingly I have decided that though the injunction should be granted, its operation will be suspended until the determination of the Defendants’ present application for planning permission, including the determination of any necessary appeal against refusal by the Council." Comment
This decision will be of cold comfort to local planning authorities. It appears to suggest that notwithstanding the breaches and enforcement of previous years, if an application for planning permission is put in following the issue of the circular, the slate is wiped clean until such time as the application and any subsequent appeal to the Secretary of State is determined and any other appeals are exhausted. By this time of course, rights under the Human Rights Act would be further strengthened making it even more difficult to obtain an injunction.
It will be interesting to see if this decision is followed by other judges. Other recent decisions do not support a view that injunctions should be suspended in this way awaiting the outcome of a planning decision, particularly such as in this case, where it is so very early on in the planning process. In addition, it is not clear that the circular warrants such a sweeping effect over the prospects of planning permission being granted. In particular this was green belt land. The circular does not change the position regarding granting planning permission in the green belt and expressly states that green belt policies must be upheld. Those policies were in place long before the recent circular and the question of whether any very special circumstances existed to override them would have already been considered in the many stages of the planning process the defendants had already been through.
Interim Injunction
South Cambridgeshire District Council v Persons Unknown [2004] EWCA Civ 1280
Facts
The local planning authority applied to the county court for an interim injunction under section 187B of the Town and Country Planning Act 1990 to restrain certain persons unknown (a group of travellers) from perpetrating apprehended but identified breaches of planning control in respect of eleven plots of land. Those breaches included the bringing of caravans onto and the deposit of materials on the land. The trial judge concluded that he did not have jurisdiction to grant the injunction in the terms proposed. The authority appealed.
Held
Appeal allowed. The court had such a power and it was expedient and necessary in this case to grant the relief sought.
Comment
One of the cases cited to the court was the Hampshire Waste Services case, where a similar approach was taken by the Vice-Chancellor. The intended means of service there was to be by the fixing of documents to posts in conspicuous places around the perimeters of the sites in question.
No power to authorise proceedings
Kirklees Metropolitan Council v Brook
[2004] EWHC Ch 2841
A claim for an injunctive relief under the Town and Country Planning Act 1990 s.187B and s.214A, for alleged breaches of planning control, was dismissed because the local authority's scheme of delegation did not authorise proceedings under those sections. The present proceedings were not validly authorised.
The authority for commencing proceedings was signed by the councils head of planning services, pursuant to the councils scheme of delegation which gave him the power to take enforcement action under the Town and Country Planning Acts including the service of enforcement notices. Lloyd J:The paragraph cannot be read as covering criminal proceedings, which are dealt with differently. There is delegated authority to cover that but to a more limited group of officers. It cannot be read as covering stop notices which are covered specifically. In my judgement it ought not to be read as covering proceedings under section 187B. Those proceedings are the most serious proceedings that a planning authority can take because of the sanction of committal to prison for breach of an injunction, which is not otherwise available for a breach of planning control. It seems to me that the Council cannot be taken to have intended that authority to start such proceedings could be delegated more widely than authority to start a criminal prosecution. The consequence of this is that there is no general delegation of authority to start proceedings under section 187B or section 214A. This may not have been intended either, but could no doubt be rectified, and there can, of course, be a specific delegation if thought fit. As the scheme of delegation stands, however, I conclude that it does not authorise any officer to decide whether to bring proceedings for an injunction either under section 187B or 214A. Only the planning committee can take that decision, unless it delegates power in a particular case.
Travelling showpeople
Chiltern District Council v Webb
[2007] EWHC 1686 (QB)
In this case, although the court was prepared to grant an injunction to remedy the breaches of planning control in the green belt caused by a group of travelling show people, it was suspended until the determination of an appeal against a refusal of a planning application for a temporary change of land use. In particular the court had regard to the fact that there had been various changes in policy that it considered gave rise to a real prospect that the Fairlight Group might prove successful in obtaining temporary planning permission despite the earlier adverse decisions.
Back to top
|
|
|