South Bucks District Council v Porter (Chichester District Council v Searle, Hertsmere Borough Council v Harty, Wrexham County Borough Council v Berry)

On an application for a planning injunction, the court must accept the planning status of the land and may not conduct a fresh planning appeal. It must nevertheless exercise its own discretion as to whether an injunction is commensurate and proportionate.

The court must itself balance the environmental objective against the occupiers’ Article 8 interests. It must consider hardship, health, education, suitable alternative sites, the planning and enforcement history, the gravity of the breach and the urgency of ending it. An injunction should not be granted unless the court would, if necessary, contemplate committal for breach. Under Human Rights Act 1998, a merely residual discretion to withhold relief is insufficient.

Four joined appeals concerned injunctions obtained by local planning authorities under section 187B against Gypsy and Traveller families living in caravans on land in breach of planning control. Three sites were in the Green Belt or Green Barrier. The occupiers relied on family circumstances, health, education and the absence of suitable alternative accommodation.

Burton J, Judge Barratt QC and McCombe J granted injunctions respectively against the Porters, the Searles and Mr Berry. Judge Brunning granted an injunction against the Harty family. The central issue was the extent to which a court must exercise an independent judgment, including a proportionality assessment under article 8, when deciding whether to grant coercive relief under the Town and Country Planning Act 1990.

Lord Justice Simon Brown, with whom Peter Gibson and Tuckey LJJ agreed, allowed the Porter, Searle and Berry appeals and dismissed the Harty appeal.

1. A judge determining an application under section 187B must take the planning merits and the existing planning status of the land as settled through the planning process. The judge is neither required nor entitled to decide afresh whether planning permission should be granted. Previous planning decisions and the authority’s decision to seek relief remain relevant, but their weight depends on matters including their recency and the extent to which Article 8 interests were addressed.

2. The court nevertheless has an original and absolute discretion under section 187B(2) to grant only an injunction that is appropriate and proportionate. It must independently balance the public interest in environmental protection against the occupiers’ private and family life, home and ethnic identity under article 8.

3. The court must consider for itself hardship to the occupiers and their families, including health, education and the availability of suitable alternative sites. It should not grant an injunction unless it would, if necessary, be prepared to contemplate committal for breach. Relevant countervailing matters include the planning history, the seriousness and duration of the breach, the effectiveness of conventional enforcement, environmental harm and any urgency.

4. The approach in Hambleton District Council v Bird, [1995] 3 PLR 8, which left only a bare residual discretion, could not be reconciled with the duty in section 6(1) of the Human Rights Act 1998. The European Court’s supervisory decision in Chapman v United Kingdom, 10 BHRC 48, did not determine the domestic court’s separate discretionary task under section 187B.

5. The first three judges had deferred excessively to planning decisions or treated Chapman v United Kingdom as determinative. Their orders were set aside and the applications remitted for fresh determination on current evidence. Judge Brunning had, in substance, exercised the required independent discretion. His injunction was upheld.

• Court of Appeal (Civil Division). In South Bucks District Council v Porter (Chichester District Council v Searle, Hertsmere Borough Council v Harty, Wrexham County Borough Council v Berry), [2001] EWCA Civ 1549, three appeals were allowed and remitted for fresh determination; the Harty appeal was dismissed.
• Queen’s Bench Division. Burton J granted South Bucks District Council an injunction against the Porters on 27 January 2000.
• Chichester County Court. Judge Barratt QC granted Chichester District Council an immediate injunction against the Searles on 30 June 2000.
• Queen’s Bench Division. McCombe J granted Wrexham County Borough Council an injunction against Mr Berry on 12 February 2001.
• Queen’s Bench Division. Judge Brunning, sitting as a High Court judge, granted Hertsmere Borough Council an injunction against the Harty family on 13 March 2001.