Wychavon District Council v Rafferty & Ors

When a local planning authority seeks an injunction under the Town and Country Planning Act 1990, section 187 B, the court exercises an original discretion. It must consider all the circumstances, including personal hardship, family life and alternative accommodation, and grant relief only where it is just and proportionate. The court must not reassess planning judgments or determine the planning appeal. It may form a broad view of whether an outstanding appeal has a real prospect of success, but that prospect does not require an adjournment. A defendant who knowingly breaches an injunction should seek variation for the future and cannot rely on the breach to resist committal. The public interest in obedience to court orders and maintaining planning control may outweigh hardship.

The appellants, a family living in caravans, occupied land contrary to an injunction granted under the Town and Country Planning Act 1990. They applied to vary the injunction pending their appeal against refusal of planning permission. After they admitted breaching the injunction, the High Court refused variation and ordered their committal for six weeks, suspended until they removed their caravans.

The appellants appealed against both the refusal to vary the injunction and the committal order. They relied on the pending planning appeal, Article 8 rights, personal hardship and the lack of suitable alternative accommodation. The central issues were whether the judge had properly exercised his discretion and whether the committal order should be suspended.

Disposition. Permission to appeal on the variation issue was granted because the court had heard full argument. Both appeals were dismissed. The injunction remained in force and the committal order was allowed to take its course.

1. The refusal to vary or discharge the injunction was a discretionary decision. The appellants therefore had to show an error of law, reliance on irrelevant matters, failure to consider relevant matters, or an obviously wrong conclusion. They failed to do so.
2. Under section 187 B of the Town and Country Planning Act 1990, the court has an original and discretionary jurisdiction. Applying South Bucks District Council v Porter [2003] 2 AC 558, it must consider all the circumstances, including personal hardship, family life and Article 8 rights, and decide whether an injunction is just and proportionate. It must not reassess the planning authority’s judgment. It may consider non-planning factual matters and whether a pending planning appeal has a real prospect of success, but a real prospect permits, rather than requires, an adjournment.
3. The factual differences from Mid Bedfordshire District Council v Brown [2004] EWCA Civ 1709 did not displace its principle. The public interest in obedience to court orders and preserving the planning regime could outweigh the factors favouring suspension. South Cambridge District Council v Gammell [2005] EWCA Civ 1429 confirmed that the South Bucks balancing exercise concerns future variation, not whether an admitted breach constitutes contempt.
4. The planning appeal was not hopeless, but the judge was entitled to conclude that it did not have a real prospect of success. He had considered alternative accommodation, the Cleve Prior offer, the family’s circumstances and Article 8 proportionality. His reasons were adequate under Coates v South Bucks District Council [2004] EWCA Civ 1378.
5. The appellants admitted contempt, raised no procedural defect and did not contend that the penalty was outside the legitimate range. Alternative accommodation existed for Dawn and her children, and the evidence did not establish that accommodation for the other appellants was impossible. No further suspension was sought.

Lord Justice Tuckey added, with Sir Peter Gibson agreeing, that courts should not conduct a mini-trial by calling and cross-examining planning witnesses merely to assess prospects; the papers ordinarily suffice for a broad view. Costs were ordered against the Legal Services Commission, with detailed assessment of the appellants’ publicly funded costs.

• Court of Appeal (Civil Division): On 27 April 2006, permission to appeal on the variation issue was granted, but both appeals were dismissed.
• High Court, Queen’s Bench Division: Newman J on 11 April 2006 refused to vary the injunction and ordered the appellants’ committal for six weeks, suspended on terms requiring removal of the caravans.
• High Court, Queen’s Bench Division: Penry-Davey J on 11 October 2005 granted an injunction restraining use of the land as a caravan site or for residential purposes.