Property law reports

TOWN AND COUNTRY PLANNING: GYPSIES

Gypsies - injunctions approach to be taken by court with regard to application for injunction restraining breach of planning control - whether proportionality to be considered - section 187B of Town and Country Planning Act 1990 - appeals dismissed

South Bucks District Council v Porter; Wrexham County Borough Council v Berry; Chichester District Council v Searle and others: HL (Lord Bingham of Cornhill, Lord Steyn, Lord Clyde, Lord Hutton and Lord Scott of Foscote): 22 May 2003

In each of these three cases, gypsies were living on land without planning permission.

They appealed against local planning authority injunctions granted against them under section 187B of the Town and Country Planning Act 1990, which allows a planning authority to apply for an injunction where it considers it necessary or expedient for any actual or apprehended breach of planning control to be restrained by that means.

The planning authorities argued that the judge was more or less bound to grant an injunction on a section 187B application unless the planning authority's application could be shown to be flawed on Wednesbury grounds; and it was not until the committal stage for breach of an injunction that the judge was entitled to reach an independent view on proportionality.

Rejecting that approach, the Court of Appeal held that although the judge was not entitled to reach his own independent view of the planning merits of the case, he should not grant injunctive relief unless he were prepared, if necessary, to contemplate committal to prison for breach, and that, in deciding that matter, he should consider all questions of hardship.

It took the view that a failure to consider the issue of proportionality at that stage would not be consistent with the judge's duty, under section 6(1) of the Human Rights Act 1998, to act compatibly with convention rights.

The planning authorities appealed.

Timothy Straker QC and Ian Albutt (instructed by Sharpe Pritchard) for the appellants in the first appeal; Charles George QC and Stephen Cottle (instructed by Community Law Partnership, of Birmingham) for the respondent; Timothy Straker QC and Robin Green (instructed by Sharpe Pritchard) for the appellants in the second and third appeals; the respondents in the second and third appeals did not appear and were not represented.

Held: The appeals were dismissed.

The guidance given by the Court of Appeal was judicious and accurate in all essential respects.

The court's jurisdiction under section 187B was an original, not a supervisory, jurisdiction.

It was a discretionary power, and, accordingly, the court was not obliged to grant an injunction just because the local authority thought it expedient to apply for one.

No single test could be prescribed, since the facts of different cases were infinitely various.

However, it would be relevant to consider whether, and to what extent, the local planning authority had taken account of the personal circumstances of the defendant and any hardship that an injunction might cause - Westminster City Council v Great Portland Estates plc [1985] AC 661 considered.

In all cases, it was ultimately for the court to decide whether, in all the circumstances, it was just and proportionate to grant the relief sought against the particular defendant - Buckley v United Kingdom [1997] 2 PLR 10 and Chapman v United Kingdom 27238/95 (2001) 33 EHRR 18 considered.

Mole Valley District Council v Smith [1992] 3 PLR 22 and Hambleton District Council v Bird [1995] 3 PLR 8 should now be read subject to the present judgment.

An application under section 187B was not an invitation to the court to exercise functions allocated elsewhere, so it could never be appropriate for a court to hold that planning permission should not have been refused or that an appeal against an enforcement notice should have succeeded - Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1984] 2 EGLR 183, R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2001] 2 PLR 76 and Hambleton considered.

When making an order, the court should ordinarily be willing to enforce it if necessary, and apprehension that a party might disobey an order should not deter the court from making it if otherwise appropriate.

Those propositions rested on the assumption that the order was just in all the circumstances and one with which the defendant could, and reasonably ought to, comply, an assumption that arose both when the order was made and when the time for enforcement arose - Re Liddell's Settlement Trusts [1936] Ch 365 and Castanho v Brown & Root (UK) Ltd [1981] AC 557 considered.