Davis & Ors. v Tonbridge & Malling Borough Council

On an application under section 187B of the Town and Country Planning Act 1990, the court accepts the planning merits as determined through the planning process. It must nevertheless decide for itself whether an injunction is just and proportionate in all the circumstances.

The court must balance the public interest in effective planning control against personal hardship and the right to respect for private and family life and the home. Deliberate establishment of a home on environmentally protected land, persistent non-compliance and serious environmental harm weigh strongly in favour of relief. The absence of an alternative site carries substantial weight but does not confer an entitlement to remain or make an injunction necessarily disproportionate.

A group of travelling show-people occupied and developed a six-hectare site in the Green Belt and a designated Special Landscape Area. They did so knowingly and without planning permission. Planning permission was refused, enforcement notices were upheld, and the Secretary of State allowed 12 months for compliance. The occupiers nevertheless remained and carried out further works.

Stanley Burnton J granted the local planning authority an injunction under section 187B of the Town and Country Planning Act 1990, despite accepting that eviction would cause great hardship because no alternative site had been identified in South East England.

The occupiers appealed. The central issues were whether the judge had deferred excessively to the planning authorities, whether he had mishandled possible alternative enforcement remedies, and whether the injunction was disproportionate under article 8 of the European Convention on Human Rights.

1. The appeal was dismissed unanimously. Auld LJ delivered the judgment, with which Arden and Jacob LJJ agreed. The judge had exercised his own discretion under section 187B of the Town and Country Planning Act 1990 and was entitled to grant the injunction.

2. A court considering section 187B performs a function distinct from that of the planning authorities. It cannot reassess the planning merits, which are taken as determined through the planning process. It has an original and discretionary jurisdiction over enforcement and must decide for itself whether injunctive relief is just and proportionate. The decisions of the local authority and Secretary of State carry substantial weight, especially where they have fully considered personal hardship and human rights, but they do not dictate the court's conclusion.

3. The judge had applied that distinction. He considered the occupiers' personal circumstances, the absence of an alternative site and the hardship which eviction would cause. His reference to judicial loyalty was conditional upon the reasoning in South Bucks District Council v Porter and did not show that he had treated enforcement as automatic.

4. The proportionality assessment had to balance the hardship and article 8 interests against the serious damage to the openness of the Green Belt and the integrity of the Special Landscape Area. The deliberate commencement of the development, knowledge of its unlawfulness and persistent defiance of planning control for about three years weighed strongly in favour of an injunction. Article 8 does not confer an entitlement to a home. The absence of alternative accommodation was a matter of great weight, but it did not outweigh the cumulative public interests in this case.

5. The judge's references to statutory self-help and criminal proceedings were not treated as practical fallback remedies. They demonstrated that he had considered and rejected those theoretical alternatives. Nor did his observation that indefinite postponement would resemble temporary planning permission disclose a material error.

6. Obiter, planning guidance recognising combined residential and equipment-storage sites for travelling show-people expresses a preference rather than an imperative. In an appropriate future case, separate residential accommodation and secure equipment storage might be relevant to whether eviction would cause homelessness. The present appeal did not turn on that possibility.

1. Court of Appeal (Civil Division): By [2004] EWCA Civ 194, dismissed the occupiers' appeal and left the injunction standing. Permission to appeal to the House of Lords and an application for a stay were refused.

2. High Court, Queen's Bench Division: Stanley Burnton J granted the local planning authority an injunction under section 187B of the Town and Country Planning Act 1990 on 14 May 2003. No neutral or report citation is stated.