Mid Suffolk District Council v Clarke

An amendment sought after the effective conclusion of proceedings will be refused where it introduces new factual and legal issues that should previously have been raised, particularly where those issues are intended for determination under a separate statutory regime. A pending or arguable application for a certificate of lawful use does not ordinarily prevent an injunction enforcing the planning law where the activity has already been held unlawful. The court must consider the public interest in maintaining the integrity of the planning regime, alongside any asserted hardship. An injunction should be confined to the area and activity properly raised and determined in the proceedings.

The claimant sought a planning injunction concerning the defendant’s use of premises at Rookery Farm for cooking and rendering activities. Earlier proceedings had determined, on the pleadings, that the relevant activity was unlawful. The defendant then sought leave to amend his defence to introduce an accrued-rights and mixed-use case, substantially overlapping with matters intended to be raised in proceedings under section 191 of the Town and Country Planning Act 1990.

The court also had to determine whether the injunction should await those statutory proceedings, whether alleged financial hardship justified refusing or delaying relief, and whether the injunction should extend to the whole site or only the area covered by the relevant planning application.

1. Application to amend. The application was refused. The proceedings had been determined on a preliminary issue, leaving only the discretionary question of relief. The proposed amendment would introduce new factual and legal issues after the effective conclusion of the action, contradict the defendant’s longstanding case, and duplicate matters intended to be resolved under the statutory planning regime. It was therefore a procedural device to resist the injunction and was misconceived.
2. Effect of the proposed section 191 proceedings. The court could not determine the merits of the asserted accrued rights in the injunction proceedings. Even if the defendant succeeded under section 191, it was uncertain whether the rights would permit introduction of the new cooking plant or continuation of the present industrial activity without further consent. That uncertainty was relevant to discretion but did not justify withholding relief.
3. Injunction. The claimant was enforcing the planning law under section 187B of the Town and Country Planning Act 1990. A judgment binding on both parties had determined that the activity was unlawful and that the defendant lacked planning permission. The public interest in upholding planning control, and the local perception of the integrity of that regime, weighed strongly in favour of an injunction. The asserted hardship was unsupported by sufficient evidence and did not outweigh those considerations.
4. Terms and timing. An injunction was granted, with three months allowed for the defendant to wind down the business. Its territorial scope was limited to the area covered by the 2001 change-of-use application: the new cooking-plant building, filter bed, surrounding yard area and access track. The court declined to extend it to the whole of Rookery Farm because that wider area had not been properly raised as the relevant area in the proceedings.

The judgment records that an earlier preliminary-issue judgment was given by the same court on 7 April 2005, [2005] EWHC 3099 (QB). Permission to appeal was refused by the Court of Appeal, [2005] EWCA Civ 904. The present judgment determined the remaining issue of discretionary relief.