New Forest District Council, R (on the application of) v Shutler & Ors

An injunction under section 187B of the Town and Country Planning Act 1990 is an original and discretionary remedy. The court must accept the planning status determined through the planning process, but must independently assess personal hardship, environmental consequences and proportionality.

Where conventional enforcement measures have failed over a prolonged period, prosecution is not a prerequisite. Relief should be granted only where it is just and proportionate, and where the defendant can and reasonably ought to comply.

The Council sought an injunction requiring Colin and Linda Shutler to remedy breaches of planning control at Avonside Farm. An enforcement notice requiring removal of a mobile home had been upheld on appeal, with eighteen months allowed for compliance. The defendants later altered the structure, relied on the health needs of Colin Shutler’s elderly parents and referred to a pending retrospective planning appeal.

The issues were whether the altered structure avoided the enforcement notice, whether prosecution was required before an injunction, how the pending planning appeal affected relief, and whether the family’s circumstances made an injunction unjust or disproportionate.

1. Injunction granted. The breach was flagrant and prolonged. The injunction was suspended until 15 June 2006. The defendants were ordered to pay the Council’s costs. Leave to appeal was refused.
2. The jurisdiction under section 187B of the Town and Country Planning Act 1990 is original and discretionary, not supervisory. The court must not reconsider the planning merits decided within the planning process, but must assess whether coercive relief is just and proportionate. The approach in South Buckinghamshire District Council v Porter [2003] 2 AC 558 was applied.
3. The court must consider hardship, personal circumstances, planning history, the degree and duration of the breach, environmental consequences, the local authority’s consideration of material matters, and whether the order can and reasonably ought to be obeyed.
4. There was no requirement to prosecute before seeking an injunction. A pending planning appeal did not require suspension by reference to its expected result or duration, although a period of suspension was appropriate.
5. The later alterations to the structure did not avoid the enforcement notice or justify refusing relief.