Ellson v London Borough of Greenwich & Anor

A court should not restrain demolition merely because it forms part of a proposed development for which planning permission remains outstanding. The decisive question is the legal and factual reality of the demolition. Where demolition is exempt from planning control and the developer intends to proceed whether permission is granted or refused, the local planning authority cannot lawfully prevent it through enforcement or by imposing preservation as a condition of permission. An injunction should not be granted to restrain conduct which the law permits.

The claimant sought permission to appeal against Burton J’s refusal of an interim injunction in judicial review proceedings concerning the proposed demolition of Borthwick Wharf and redevelopment of the site. The earlier planning permission had been quashed after the local authority accepted a possible allegation of bias, and the developers had submitted the same application again.

The demolition was exempt from planning control under the Town and Country Planning Act 1990. The claimant argued that it remained an integral part of the proposed development and that the Environmental Impact Assessment Directive required the matter to be reconsidered. The central issue was whether the court could restrain demolition pending determination of the renewed planning application.

1. Application refused. There was no real prospect of showing that the demolition could lawfully be restrained pending determination of the planning application.
2. The demolition was exempt from planning control by section 55 of the Town and Country Planning Act 1990, and directions under section 55(2)(g) meant that planning legislation or regulation provided no basis for restraining it. The previous environmental impact assessment did not necessarily determine the position on a renewed application, but that arguable point did not resolve the central difficulty.
3. The court considered the principle stated by Brown J in R v Swale District Council ex parte the Royal Society for the Preservation of Birds [1991] PLR 6, that the objective reality of a proposal should be considered and that an integral part of a larger development should not be artificially separated. That principle could not control the present case. The contractor’s evidence established, absent evidence of bad faith, that the developer intended to demolish the building whether or not the planning proposal proceeded.
4. Accordingly, the local planning authority was powerless to restrain the demolition unless it exercised compulsory purchase powers. It could not lawfully refuse permission merely because the proposal did not preserve the building, and the court could not grant an injunction restraining conduct which the law allowed the developer to undertake.

• Court of Appeal (Civil Division): On 11 October 2006, Moses LJ refused the emergency application for permission to appeal from Burton J’s decision.
• High Court, Administrative Court: Burton J refused an interim injunction pending judicial review proceedings on 25 September 2006, but granted a temporary injunction pending an appeal.