Bath & North East Somerset Council v Connors & Ors

On an application for an injunction under section 187B of the Town and Country Planning Act 1990, the court must not re-determine the planning merits. It must assess the consequences of enforcement for the defendants and their families and decide whether relief is proportionate. Relevant matters include hardship, health and education, alternative sites, environmental harm, planning history, the seriousness of the breach, prior enforcement and the prospects of a fresh planning application. A fresh application does not suspend enforcement merely because it has a possibility of success. A realistic prospect of success is required. Where an injunction is proportionate in principle but immediate eviction would unjustifiably interfere with Article 8 rights, the court may suspend the order until adequate alternative provision is demonstrated.

The local planning authority sought an injunction requiring gypsies occupying land in breach of planning control to remove caravans and associated structures. Planning permission had previously been refused following an appeal which the Inspector recommended dismissing, and which the First Secretary of State dismissed. The defendants accepted that an injunction should be granted but sought suspension pending a fresh application for temporary permission, relying on new Government guidance, emerging accommodation assessments, possible alternative sites, changed personal circumstances and fresh highway evidence.

The central issues were whether the fresh appeal had a realistic prospect of success, how the court should assess proportionality under section 187B, and what period of suspension was required to protect the defendants’ Article 8 rights.

1. Relief granted in principle. The court granted an injunction under section 187B of the Town and Country Planning Act 1990, but suspended its operation for four months.
2. The court adopted the approach in South Bucks District Council v Porter [2003] 2 AC 558. It was not entitled to reach an independent view of the planning merits. It had to treat the planning status as determined within the planning process, while considering hardship, health and education, alternative sites, environmental harm, planning history and the need for enforcement. The injunction had to be proportionate under Article 8 and section 6(1) of the Human Rights Act 1998.
3. The fresh planning application did not have a realistic prospect of success. Circular 1/06 increased the significance of unmet need and made temporary permission more available in appropriate circumstances. It did not restart all pending enforcement cases or displace the earlier planning decision. The previous Inspector and Secretary of State had already given substantial weight to unmet need, but had nevertheless rejected a three-year temporary permission because of substantial environmental and highway harm. The fresh highway evidence did not materially alter that assessment.
4. The authority’s failure to provide alternative sites did not bar a statutory enforcement injunction and did not engage the equitable clean-hands doctrine. It was relevant to proportionality and to the practical consequences of eviction.
5. Immediate removal would not be proportionate unless specific alternative provision was made for the defendants’ serious health and educational needs. The court therefore suspended the injunction for four months. A further suspension could be sought if adequate provision had not then been secured. The court expected up-to-date evidence from both sides concerning alternative accommodation and assistance from relevant public authorities.

First-instance proceedings. No appeal history is stated in the judgment.