South Bucks District Council v Porter

The House of Lords considered the proper approach to applications by local planning authorities for injunctions under section 187B of the Town and Country Planning Act 1990. The court held that the jurisdiction under section 187B is an original equitable discretion and not a mere supervisory review of planning decisions. Courts must not reassess planning merits but must consider whether injunctive relief is just and proportionate in all the circumstances, including the personal hardship of the occupier, and must act compatibly with Convention rights under the Human Rights Act 1998 (notably article 8). The House endorsed the Court of Appeal's guidance that a judge should be willing, if necessary, to contemplate enforcement (including committal) before granting an injunction and that proportionality requires examination of alternative sites, health, education and the planning history.

These appeals arose from applications by three local planning authorities for injunctions to restrain Gypsies occupying land without planning permission. The appellants sought interlocutory and final injunctions under section 187B T&CPA 1990. The Court of Appeal allowed the Gypsies' appeals and remitted some cases for rehearing, holding that courts must take account of personal hardship and proportionality in light of article 8 ECHR. The local authorities appealed to the House of Lords.

The issues were:

• Whether the court's jurisdiction under section 187B is original or merely supervisory;
• Whether the court may take into account personal hardship (health, education, availability of alternative authorised sites) when deciding whether to grant an injunction;
• How the Human Rights Act 1998 and article 8 ECHR affect the exercise of the section 187B discretion;
• The extent to which earlier authorities (notably Mole Valley and Hambleton) remain authoritative.

The House held that section 187B confers an original equitable discretion on the court to grant such injunctions and that this discretion must be exercised judicially. The court must respect planning judgments made by democratically accountable bodies and must not substitute its own planning decisions, but it is entitled and in many cases required to consider non‑planning factors relevant to whether injunctive relief is just and proportionate. In particular, because the injunction carries coercive sanctions, the court should examine whether it would be willing to enforce the order (including committal) and should assess hardship, alternative accommodation and the planning history. The Human Rights Act 1998 requires the court to apply the Convention principle of proportionality where article 8 is engaged. Earlier authority suggesting that hardship is irrelevant was to be read subject to this reasoning. The House dismissed the local authorities' appeals, endorsed the Court of Appeal guidance and ordered remission in the Berry and Porter cases as appropriate; the Searle appeal was dismissed without costs and without remission where events had overtaken the order.

Appeals dismissed. The House held that (1) jurisdiction under section 187B T&CPA 1990 is an original discretionary equitable jurisdiction; (2) in exercising that discretion the court must act judicially, taking account of the purpose of the power and all relevant circumstances but not re‑adjudicating planning merits reserved to planning authorities; (3) where article 8 ECHR is engaged the court must consider proportionality under the Human Rights Act 1998 and may take into account personal hardship, alternative sites, health and education; and (4) earlier authorities that suggested hardship was irrelevant must be read in light of these conclusions. The Court of Appeal guidance was endorsed and the proceedings remitted as appropriate.

The cases were heard in the Court of Appeal ([2001] EWCA Civ 1549; reported [2002] 1 WLR 1359) which allowed the Gypsies' appeals and remitted certain cases for redetermination. By leave of the House the local planning authorities appealed to the House of Lords, which delivered judgment on 22 May 2003 ([2003] UKHL 26), dismissing the appeals.