Brent v Dowman

An injunction under section 187B of the Town and Country Planning Act 1990 is granted under an original, discretionary jurisdiction. The court must decide whether relief and its terms are appropriate, applying ordinary principles of justice, convenience and proportionality. The order should normally preserve permitted development and activities ancillary to an unchallenged primary use. Once an enforcement notice has become final, a landowner cannot use later injunction or prosecution proceedings to reopen primary established or mixed-use rights that should have been raised on appeal. Planning history may be considered as background, but not as a disguised challenge to the notice. A general injunction may be appropriate where a precise list would be incomplete.

The London Borough of Brent obtained an injunction in the Willesden County Court against Morris Marcus Dowman for continuing breach of an enforcement notice concerning vehicle-repair activities at commercial premises in Neasden.

The lower court prohibited specified repair activities and regulated the use of tools. Brent appealed against the terms of the order, contending that the list was too narrow and seeking a broader formulation and removal of equipment. Mr Dowman relied on alleged established rights for a mixed use involving a shop, tyre fitting and minor repairs. The central issues were whether those rights could be raised at this stage, how the injunction should be framed, and whether equipment removal was justified.

The appeal was allowed in part. Both Lord Justices agreed that the injunction should be reformulated, but that no order for removal of equipment should be made.

1. Section 187B of the Town and Country Planning Act 1990 confers an original, not supervisory, jurisdiction. The court has discretion whether to grant an injunction and as to its terms. The discretion must be exercised on ordinary principles, including whether relief is just and convenient, appropriate and proportionate. Planning policy remains for the local planning authority, although relevant planning history may be considered.
2. Authorities including R v Harfield [1992] 2 PLR 23, Mansi v Elstree Rural District Council [1964] 16 P&CR 154, Cord v Secretary of State for the Environment [1981] JPL 40 and Duguid v Secretary of State for the Environment, Transport and Regions [2001] 82 P&CR 52 establish that an enforcement notice should not ordinarily be construed to restrain permitted development or activity ancillary to an unchallenged primary use.
3. That principle did not permit Mr Dowman to reopen the extent of any primary established or mixed use. Under section 285(1) of the Act, “validity” includes enforceability, as explained in Davy v Spelthorne Borough Council [1984] AC 262. Any challenge that the notice exceeded what was necessary, including an assertion of established use rights, had to be made by an appeal under section 174. The reasoning in Vale of White Horse District Council v Treble-Parker [1996] JPL B113 and North West Estates plc v Buckinghamshire County Council [2003] EWCA Civ 719 supported that conclusion. The officer’s earlier report could be considered as background, but not elevated into a disguised challenge.
4. The lower court’s list of prohibited activities was inadequately reasoned and potentially incomplete. Although appellate intervention in a discretionary decision is ordinarily limited, the absence of reasons justified closer scrutiny. The more general formulation was preferable. As explained in Kettering Borough Council v Perkins [1999] JPL 166, lack of maximum precision is not fatal where a comprehensive list cannot reasonably be prepared. Whether an activity is ancillary can be determined in later committal proceedings.
5. The order was amended to restrain use of the premises as a repair workshop for vehicles, subject to fitting goods sold in the shop in a manner ancillary to the retail use. Paragraphs 2 and 3 of the lower court’s order remained. Equipment removal was refused because the evidence did not establish what equipment was necessary or unnecessary for the permitted ancillary activities. Lord Justice Pill additionally stressed that prohibition of a use does not itself justify removal of goods; necessity and justification must be shown.

• Court of Appeal (Civil Division): Appeal allowed in part. The injunction was reformulated, but the request for removal of equipment was refused.
• Willesden County Court: Her Honour Judge Bevington granted an injunction in specified terms restraining vehicle-repair activities and regulating tool use.