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Injunction Proceedings
Section 187B of the TCPA 1990 provides that:
‘(1) Where a local planning authority considers it necessary or expedient for any
actual or apprehended breach of planning control to be restrained by injunction, they
may apply to the court for an injunction, whether or not they have exercised or are
proposing to exercise any of their other powers under this Part.
(2) On an application under subsection (1) the court may grant such injunction as the
court thinks appropriate for the purpose of restraining the breach.’
Significantly, a LPA can make an application for an injunction without having served an enforcement notice and an order can be made against persons unknown: see South Cambridgeshire DC v Persons Unknown.
The Court’s approach
The approach to be taken by the Court when determining whether to grant an injunction pursuant to Section 187B of the TCPA 1990 in the light of the HRA 1998 was laid down by the Court of Appeal in South Buckinghamshire District Council v Porter - a ruling which encompassed four separate cases involving Gypsies.
Simon Brown LJ giving the leading judgment in that case, stated that a judge:
‘should not grant injunctive relief unless he would be prepared if necessary to contemplate committing the defendant to prison for breach of the order, and that he would not be of this mind unless he had considered for himself all questions of hardship for the defendant and his family if required to move, necessarily including therefore, the availability of suitable alternative sites.’
Simon Brown LJ indicated that a judge was entitled to take account of countervailing considerations when weighing up whether it is appropriate to enforce planning control, e.g.:
Simon Brown LJ added that:
’whilst it is not for the court to question the correctness of the existing planning status of the land, the court in deciding whether or not to grant an injunction (and if so, whether and for how long to suspend it) is bound to come to some broad view as to the degree of environmental damage resulting from the breach and the urgency or otherwise of bringing it to an end. In this regard the court need not shut its mind to the possibility of the planning authority itself coming to reach a different planning judgment in the case.’
Finally, Simon Brown LJ stated that:
‘the court's discretion is absolute and injunctive relief is unlikely unless properly thought
to be 'commensurate' - in today's language, proportionate … Proportionality requires not
only that the injunction be appropriate and necessary for the attainment of the public
interest objective sought - here the safeguarding of the environment - but also that it does
not impose an excessive burden on the individual whose private interests - here the
gipsy's private life and home and the retention of his ethnic identity - are at stake.’
The House of Lords unanimously dismissed the LPA’s appeals against the Court of Appeal’s decision and endorsed the guidance that it had given.
Following the House of Lords’ decision in Porter, the Court of Appeal gave judgment in a number of cases where Gypsies had disobeyed the terms of orders issued by the court but had sought to defend injunction proceedings and to argue that they should be allowed to remain on land in breach of planning control: see for example Coates v South Bucks DC and Mid-Beds DC v Brown. In both cases the Court of Appeal made it clear that Gypsies and Travellers will receive little sympathy from judges where they act in conscious defiance of existing injunctions and, to use the words of one member of the Court of Appeal in the case of Brown, they ‘cock a snook’ at the court.
Clearly, each application will have to be determined on its own facts and there will be other cases where judges will not be persuaded that it would be appropriate to grant an injunction, let alone one which is suspended for a period of time: see e.g. New Forest DC v Birch.
Gypsies and Travellers defending injunction proceedings now have the opportunity to argue that they should not be forced to leave their land until they have had the opportunity to seek at least the grant of temporary planning permission – relying upon the new government advice in paragraphs 45-46 of Circular 1/06.
Such an argument was successful in South Bucks DC v Smith - a case where the Gypsy defendants had been living on their land in the Green Belt in breach of planning control for a period of 32 years. The judge hearing an application for an injunction considered that there was a realistic possibility that the family would be granted temporary planning permission on the strength of the advice in Circular 1/06. The judge was proved right – the family were granted 4 years temporary planning permission by a Planning Inspector.
‘(1) Where a local planning authority considers it necessary or expedient for any
actual or apprehended breach of planning control to be restrained by injunction, they
may apply to the court for an injunction, whether or not they have exercised or are
proposing to exercise any of their other powers under this Part.
(2) On an application under subsection (1) the court may grant such injunction as the
court thinks appropriate for the purpose of restraining the breach.’
Significantly, a LPA can make an application for an injunction without having served an enforcement notice and an order can be made against persons unknown: see South Cambridgeshire DC v Persons Unknown.
The Court’s approach
The approach to be taken by the Court when determining whether to grant an injunction pursuant to Section 187B of the TCPA 1990 in the light of the HRA 1998 was laid down by the Court of Appeal in South Buckinghamshire District Council v Porter - a ruling which encompassed four separate cases involving Gypsies.
Simon Brown LJ giving the leading judgment in that case, stated that a judge:
‘should not grant injunctive relief unless he would be prepared if necessary to contemplate committing the defendant to prison for breach of the order, and that he would not be of this mind unless he had considered for himself all questions of hardship for the defendant and his family if required to move, necessarily including therefore, the availability of suitable alternative sites.’
Simon Brown LJ indicated that a judge was entitled to take account of countervailing considerations when weighing up whether it is appropriate to enforce planning control, e.g.:
- the degree and the flagrancy of the (postulated) breach;
- whether conventional enforcement measures had been tried;
- the urgency of the situation;
- health and safety considerations;
- whether the injunction was intended to remove a Gypsy or Traveller from a site or prevent him moving on to a site; and
- previous planning decisions - the relevance of which would depend upon a variety of matters including their age, the extent to which considerations of hardship and the availability of alternative sites was taken into account, the strength of the conclusions reached on the land use and environmental issues and whether a defendant had the opportunity to make his case for at least a temporary personal planning permission.
Simon Brown LJ added that:
’whilst it is not for the court to question the correctness of the existing planning status of the land, the court in deciding whether or not to grant an injunction (and if so, whether and for how long to suspend it) is bound to come to some broad view as to the degree of environmental damage resulting from the breach and the urgency or otherwise of bringing it to an end. In this regard the court need not shut its mind to the possibility of the planning authority itself coming to reach a different planning judgment in the case.’
Finally, Simon Brown LJ stated that:
‘the court's discretion is absolute and injunctive relief is unlikely unless properly thought
to be 'commensurate' - in today's language, proportionate … Proportionality requires not
only that the injunction be appropriate and necessary for the attainment of the public
interest objective sought - here the safeguarding of the environment - but also that it does
not impose an excessive burden on the individual whose private interests - here the
gipsy's private life and home and the retention of his ethnic identity - are at stake.’
The House of Lords unanimously dismissed the LPA’s appeals against the Court of Appeal’s decision and endorsed the guidance that it had given.
Following the House of Lords’ decision in Porter, the Court of Appeal gave judgment in a number of cases where Gypsies had disobeyed the terms of orders issued by the court but had sought to defend injunction proceedings and to argue that they should be allowed to remain on land in breach of planning control: see for example Coates v South Bucks DC and Mid-Beds DC v Brown. In both cases the Court of Appeal made it clear that Gypsies and Travellers will receive little sympathy from judges where they act in conscious defiance of existing injunctions and, to use the words of one member of the Court of Appeal in the case of Brown, they ‘cock a snook’ at the court.
Clearly, each application will have to be determined on its own facts and there will be other cases where judges will not be persuaded that it would be appropriate to grant an injunction, let alone one which is suspended for a period of time: see e.g. New Forest DC v Birch.
Gypsies and Travellers defending injunction proceedings now have the opportunity to argue that they should not be forced to leave their land until they have had the opportunity to seek at least the grant of temporary planning permission – relying upon the new government advice in paragraphs 45-46 of Circular 1/06.
Such an argument was successful in South Bucks DC v Smith - a case where the Gypsy defendants had been living on their land in the Green Belt in breach of planning control for a period of 32 years. The judge hearing an application for an injunction considered that there was a realistic possibility that the family would be granted temporary planning permission on the strength of the advice in Circular 1/06. The judge was proved right – the family were granted 4 years temporary planning permission by a Planning Inspector.
