MacClesfield Borough Council v McMahon

When considering an injunction under section 187B of the Town and Country Planning Act 1990, the court may rely on findings from prior planning enforcement procedures rather than reopen the entire planning history. Convention rights are qualified, but the court must assess proportionality. An injunction is proportionate where it serves a legitimate planning purpose, no milder effective means remains, and it follows persistent non-compliance with enforcement notices, convictions and fines. A pending application for planning permission does not, by itself, justify postponing an otherwise warranted injunction.

The applicants sought permission to appeal from a judgment of Jack J made on 9 May 2001. The High Court had granted orders under section 187B of the Town and Country Planning Act 1990 to address continuing breaches involving a caravan, mobile home, conservatory, porch and enlarged stables. Enforcement notices had been served, and the applicants had been convicted of most of the breaches.

The proposed appeal challenged the establishment of the breach and alleged that the order was incompatible with Convention rights. The central issues were whether the judge was entitled to rely on the planning enforcement history and whether the order was a proportionate interference with the applicants’ rights.

1. Application for permission to appeal refused. The proposed grounds had no sufficient prospect of success. The applications for an extension of time and a stay therefore did not arise.
2. Section 187B forms part of the statutory planning-enforcement scheme. The judge was entitled to rely on findings made through the planning procedures, particularly after enforcement notices, convictions, fines and continuing non-compliance. He was not required to redetermine the entire planning history. The breach had also been independently proved to his satisfaction.
3. The order had to comply with Convention rights, including the right to respect for the home under Article 8 and property rights under Article 1 of the First Protocol. The proportionality inquiry required consideration of whether there was a legitimate purpose, whether milder effective means were available, and whether the interference was disproportionate.
4. Those questions favoured the injunction. Upholding planning law and protecting the environment supplied a legitimate purpose. Enforcement notices, convictions and fines had failed, so no milder effective means was available. The applicants retained ownership of the land and had chosen to develop it without permission. Depriving them of the fruits of persistent non-compliance was proportionate.
5. A pending application for planning permission did not justify withholding an otherwise warranted injunction. Otherwise, the statutory jurisdiction would lose practical content because permission could always be sought after an unauthorised development.

Application for permission to appeal refused. Detailed assessment of the applicants’ community service funding ordered.

• High Court, Queen’s Bench Division: Jack J granted orders on 9 May 2001 under section 187B of the Town and Country Planning Act 1990.
• Court of Appeal (Civil Division): Permission to appeal was refused on 23 August 2001 because the proposed appeal lacked a sufficient prospect of success.