Brent v Dowman

The Court of Appeal considered the appropriate terms of an injunction sought by a local planning authority under section 187B of the Town and Country Planning Act 1990 to restrain continued use of premises in breach of an enforcement notice. The court held that an injunction should not normally be worded so as to prohibit activity which is permitted development or is ancillary to a recognised primary use, and that a defendant cannot re-open the question of primary or mixed established use outside the statutory appeal machinery provided by section 174 and the bar in section 285(1). The judge's list-form injunction below was replaced by a more general formulation restraining use of the premises as a repair workshop while allowing fitting of goods sold in the shop so long as that fitting is ancillary to retail use; an order for removal of equipment was refused for lack of evidence.

Background and parties:

• The London Borough of Brent (appellant) sought an injunction against Morris Marcus Dowman (respondent) in respect of premises at 572 North Circular Road, Neasden, where an enforcement notice requiring cessation of a car repair workshop use had been upheld on appeal and taken effect. The County Court (Her Honour Judge Bevington) granted an injunction, the terms of which were contested on this appeal to the Court of Appeal.

Nature of the claim / relief sought:

• The authority applied under section 187B of the Town and Country Planning Act 1990 for an injunction to restrain continued breach of planning control in the form of the operation of a vehicle repair workshop. The authority also sought an order for removal of equipment used in repair activities.

Issues framed by the court:

• whether the respondent could rely at this stage on an alleged established mixed use of the premises including minor repairs or tyre-fitting,
• whether the County Court's specific list-form injunction was too narrow and omitted repair activities which were not ancillary to the retail shop use, and
• whether an order for removal of equipment was appropriate.

Reasoning and subsidiary findings:

• The court emphasised that section 187B confers an original discretionary jurisdiction on the court to grant injunctions for restraining breaches of planning control, to be exercised on ordinary equitable principles, including proportionality after the Human Rights Act 1998 and the requirement that the order be just and appropriate. The enforcement notice regime (section 179, section 174 appeals and section 285(1)) is part of the context: once the opportunity to appeal under section 174 has passed or the appeal has failed, a defendant cannot reopen questions concerning established primary or mixed use rights in subsequent proceedings.
• The court applied authorities (including Mansi, Harfield, Duguid, Vale of White Horse and North West Estates) to hold that activities ancillary to an unchallenged primary use will not be caught by enforcement action, but that a landowner wishing to contest the extent of primary or mixed established use must do so by way of a section 174 appeal. Consequently the respondent could not at this stage maintain that a mixed primary use including repairs was lawful; any legitimate repairs must be ancillary to the retail shop use.
• The County Court had adopted a list approach to define prohibited activities but omitted a number of repair activities without explaining the basis for omission. The Court of Appeal found that approach unsatisfactory in the absence of evidence to define exhaustively what a repair workshop comprises and preferred the more general formulation urged by the authority.
• The appeal was therefore allowed in part: the injunction was to be reformulated to restrain use of the premises as a repair workshop for vehicles while expressly permitting fitting of goods sold in the shop where that fitting is ancillary to the retail use. The Court refused to order removal of equipment for lack of evidence showing necessity or reasoned justification.

Appeal allowed in part. The Court of Appeal held that the respondent could not reopen the extent of established primary or mixed use rights outside the section 174 appeal process and that an injunction under section 187B should not normally prohibit activity that is permitted development or ancillary to a recognised primary use. The judge's specific list omitted material activities without explanation; the order was therefore reformulated to restrain use of the premises as a repair workshop while permitting fitting of goods sold in the shop so long as such fitting is ancillary to the retail use. An order requiring removal of equipment was not made for want of evidence.

Appeal from Willesden County Court (Her Honour Judge Bevington). The County Court had granted an injunction; the London Borough of Brent appealed the terms of that injunction to the Court of Appeal, neutral citation [2003] EWCA Civ 920.