South Cambridgeshire District Council v Flynn & Ors

On an application under section 187B of the Town and Country Planning Act 1990, the court must accept the planning merits as determined within the planning process, while independently deciding whether an injunction is proportionate. It must weigh the public interest in enforcing planning control against the defendants’ personal circumstances, including hardship, health, education, alternative accommodation and Convention rights.

A local authority’s careful consideration of those matters weighs heavily in favour of relief. The absence of an alternative site is relevant but does not necessarily prevent an injunction. An adjournment or suspension may be appropriate where there is a real prospect of a fresh or pending planning application succeeding. The possibility of success alone is insufficient.

South Cambridgeshire District Council sought an injunction under section 187B of the Town and Country Planning Act 1990 requiring the defendants to remove caravans from privately owned land at Smithy Fen, Cottenham.

Three enforcement notices had been upheld on appeal. The Inspector and First Secretary of State had refused permanent and temporary planning permission, finding strong planning objections. The defendants relied on their personal circumstances, the absence of alternative gypsy sites, article 8 rights and the new Circular 1/2006. The central issues were whether relief would be proportionate and whether there was a real prospect of temporary planning permission being granted.

1. Relief granted. The court granted the section 187B injunction. The defendants’ stationing of caravans without planning permission was a breach of planning control, and their continued failure to comply with the enforcement notices was an aggravating feature.
2. The court had to take the planning merits as decided within the planning process. It was not entitled to reassess the Inspector’s and First Secretary of State’s planning judgments. It nevertheless had to conduct its own proportionality assessment, weighing enforcement of planning policy against the defendants’ private interests and hardship.
3. The approach in South Bucks DC v Porter and [2003] 2 AC 558, as explained by the Court of Appeal and applied in Davis v Tonbridge and Malling Borough Council, required respect for planning decisions, particularly where personal circumstances had been fully considered. The Council had undertaken detailed inquiries into health, education, housing and personal circumstances before seeking relief.
4. The absence of alternative accommodation, the defendants’ ownership of the land, their period of occupation, and health and educational consequences were relevant. They did not outweigh the very strong planning case identified by the Inspector and upheld by the First Secretary of State. There was no condition precedent requiring the Council to discharge every housing duty before the court could grant an injunction.
5. Circular 1/2006 gave substantial weight to unmet need when considering temporary permission. It did not, however, displace ordinary planning considerations or require permission for a site causing the level of environmental and amenity harm identified here. The defendants’ proposed fresh applications therefore gave no real prospect of success sufficient to justify adjournment or suspension.
6. The court distinguished the authorities relied on by the defendants because they involved materially different planning histories, statutory regimes, or factual circumstances. The injunction was therefore proportionate and appropriate.