Wrexham County Borough Council (Appellants) v. Berry (Respondent) South Bucks District Council (Appellants) v. Porter and another (FC) (Respondent) Chichester District Council (Appellants) v. Searle and others (Respondents) (Consolidated Appeals)

A court considering an injunction under section 187B of the Town and Country Planning Act 1990 exercises an original judicial discretion. It is not confined to reviewing the planning authority’s decision.

The court must respect the planning merits as determined through the statutory process. It must nevertheless decide whether an injunction is just and proportionate in all the circumstances. Relevant matters include the public interest in effective planning control, the seriousness and persistence of the breach, personal hardship, health, education, alternative accommodation and the authority’s own assessment.

Where article 8 is engaged, the injunction must be appropriate and necessary to achieve the legitimate objective and must not impose an excessive individual burden. The court should ordinarily hesitate to make an order which the defendant cannot reasonably obey or which it would be unwilling to enforce by imprisonment.

These consolidated appeals concerned Gypsies occupying their own land residentially without planning permission. Local planning authorities obtained injunctions under section 187B of the Town and Country Planning Act 1990 requiring Mr Berry, Mrs Porter and Mr Searle and his co-respondents to cease their unauthorised occupation.

The respondents relied on personal hardship, including serious ill health and the absence of suitable alternative sites. Subsequent planning proceedings produced changing outcomes, but those developments did not resolve the governing question about the court’s injunction jurisdiction.

The Court of Appeal, in South Buckinghamshire District Council v Porter [2001] EWCA Civ 1549; [2002] 1 WLR 1359, allowed the occupiers’ appeals and remitted the applications for reconsideration. It held that the court could not reassess the planning merits, but had to consider hardship and independently determine whether coercive relief was proportionate.

The central issue was whether that guidance correctly described the scope of the court’s discretion under section 187B.

1. Disposition. The House unanimously dismissed all three appeals. Lord Bingham of Cornhill delivered the leading speech. Lord Steyn, Lord Clyde, Lord Hutton and Lord Scott of Foscote delivered concurring speeches. The Berry and Porter applications remained remitted for redetermination. No remission was ordered in Searle because subsequent events had overtaken the dispute.

2. Nature of the jurisdiction. Per Lord Bingham, Lord Steyn, Lord Clyde, Lord Hutton and Lord Scott, section 187B of the Town and Country Planning Act 1990 confers an original, discretionary injunction jurisdiction. It is not a supervisory jurisdiction limited to conventional judicial-review grounds. The authority’s conclusion that proceedings are necessary or expedient permits it to apply; it does not determine whether the court should grant relief.

3. Planning merits and judicial discretion. Per Lord Bingham, the statutory planning authorities and the Secretary of State retain exclusive responsibility for questions of planning policy and judgment. The court cannot substitute its view about whether permission should have been granted or an enforcement appeal allowed. It may, however, determine relevant factual matters, consider reliable evidence that a pending application may succeed and assess whether an injunction is an appropriate means of enforcement.

4. Just and proportionate relief. Per Lord Bingham, with the other Law Lords reaching the same conclusion, the court must consider whether relief is just and proportionate in all the circumstances. Persistent non-compliance, deliberate delay, failed enforcement measures and the need for effective restraint strongly favour an injunction. Personal hardship, ill health, children’s education and the availability of suitable alternative accommodation are also relevant. The authority’s assessment deserves substantial respect, especially where it has fully considered the competing public and private interests, but the ultimate decision belongs to the court.

5. Enforcement and imprisonment. Per Lord Bingham and Lord Steyn, the court ordinarily assumes that its order will be obeyed and should be willing to enforce an appropriate order. Since imprisonment is the principal additional sanction supplied by an injunction, the court should be slow to make an order which it would not then be willing to enforce. The order must be one with which the defendant can and reasonably ought to comply.

6. Convention rights. Per Lord Bingham, Lord Steyn, Lord Clyde and Lord Hutton, where article 8 of the European Convention on Human Rights applies, section 6(1) of the Human Rights Act 1998 requires a structured proportionality assessment. The injunction must be appropriate and necessary to secure the legitimate planning objective and must not impose an excessive burden. This substantially reflects the inquiry already required by domestic principles of justice and convenience.

7. Earlier authorities. The earlier decisions excluding or severely restricting consideration of hardship were not controlling on that issue and had to be read subject to the present decision. Their results on their particular facts were not disturbed.

1. House of Lords: In the present consolidated appeals, [2003] UKHL 26, the three local authorities’ appeals were dismissed unanimously. The Court of Appeal’s guidance was affirmed. Berry and Porter remained remitted for redetermination; Searle was not remitted.
2. Court of Appeal: In South Buckinghamshire District Council v Porter [2001] EWCA Civ 1549; [2002] 1 WLR 1359, the occupiers’ appeals were allowed. The court held that hardship and proportionality were relevant to the section 187B discretion and remitted the applications.
3. First instance: McCombe J granted an injunction against Mr Berry, Judge Barratt QC granted an injunction against Mr Searle and his co-respondents, and Burton J granted an injunction against Mrs Porter.