Mid Sussex District Council v Boyle

On an application for an injunction under section 187B of the Town & Country Planning Act 1990, the court must accept the planning merits and any established breach of planning control as determined through the planning process. It must nevertheless exercise an independent discretion when considering the consequences of an injunction.

The court should consider hardship to the defendant and family, including accommodation, health and education, together with the planning history, the public interest in enforcing planning control, and the degree and flagrancy of the breach. Relief should be granted only where the court would, if necessary, contemplate imprisonment for breach and considers the order proportionate. Permission to appeal may properly be refused where application of that approach could not realistically produce a different result.

Mid Sussex District Council obtained an injunction from Eady J under section 187B of the Town & Country Planning Act 1990. The order restrained the stationing of vehicles, mobile homes and caravans, and required the removal of specified structures from land in an area of outstanding natural beauty.

The landowner, a gypsy, sought permission to appeal. The application was advanced principally on the basis that the injunction should have been assessed in light of Convention rights enjoyed by his tenant, Miss Elliston, and her young asthmatic son. Reliance was also placed on a 1989 council letter and the alleged unenforceability of a personal occupancy condition.

The central issue was whether, applying the approach stated in South Bucks District Council v Porter, there was an arguable basis for refusing or materially altering the injunction.

1. Permission refused. The court held that the injunction should stand. Lord Justice Laws delivered the principal judgment, with Lord Justice Schiemann and Mr Justice Jackson agreeing. There was no order as to costs.
2. On an application under section 187B of the Town & Country Planning Act 1990, the court is not entitled to reconsider the planning merits or reopen issues determined through the statutory planning and appeal process. The established breach of planning control is therefore treated as a given.
3. The court nevertheless retains an absolute discretion whether to grant injunctive relief. Following South Bucks District Council v Porter [2002] 1 All ER 425, the court must consider for itself the hardship to the defendant and family if removal is required, including the availability of suitable alternative sites and matters of health and education. It must also weigh the general interest in enforcing planning control, the planning history of the site, and the degree and flagrancy of the breach. Relief should be granted only where the court would be prepared, if necessary, to contemplate imprisonment for breach and considers the order proportionate.
4. Applying that approach, the case for an injunction was strong. The site was in an area of outstanding natural beauty, a valid enforcement notice required cessation of the use by anyone other than the named occupiers, and repeated enforcement proceedings had occurred. The material concerning Miss Elliston and her son disclosed no sufficiently substantial hardship or absence of alternative accommodation to make refusal of the injunction realistically arguable.
5. The 1989 council letter formed part of the history but could not materially affect the exercise of discretion. The submission concerning the enforceability of the personal occupancy condition was rightly abandoned. Any argument that the original 14-day period was too short was answered by the council’s offer of a further three months to allow Miss Elliston to seek alternative accommodation.

• High Court, Queen’s Bench Division: Eady J granted an injunction on 20 July 2001 under section 187B of the Town & Country Planning Act 1990.
• Court of Appeal (Civil Division): Permission to appeal was refused. The injunction remained in force, subject to the additional three-month period offered by the council.