Hart District Council v Benford & Ors

On an application by a local planning authority under section 187B of the Town & Country Planning Act 1990, the court exercises an original discretion whether injunctive relief is necessary, just and proportionate. The authority’s view that an injunction is necessary or expedient is not determinative. The court must focus on restraining actual or apprehended breaches of planning control, while avoiding substitution of its own planning judgment for that of the authority or the Secretary of State. It may assess environmental harm, urgency and the prospects of a planning appeal. A distinction may be drawn under Part 4 Class B of the General Permitted Development Order 1995 between competitive racing or trials of speed, limited to 14 days, and non-competitive activities falling within the wider 28-day permission. Relief may be refused where the breach is established but removal would not be just and proportionate.

The claimant local planning authority sought an injunction against landowners and occupiers conducting seasonal motorcycling activities on agricultural land at Down Farm. It alleged that the activities exceeded the 14-day limit for racing, trials of speed and practice under Part 4 Class B of the General Permitted Development Order 1995. It also alleged breach of an earlier enforcement notice by the construction of earth mounds used in laying out the course.

The activities occurred between October and February, on more than 14 but fewer than 28 days each calendar year. The defendants denied that the activities involved racing, trials of speed or practice for those activities. They accepted that the mounds were unauthorised engineering operations, but disputed that they were covered by the earlier enforcement notice. The central questions were whether either alleged breach was established and, if so, whether injunctive relief should be granted.

1. The application for injunctive relief was dismissed. The court applied the principles identified in South Bucks District Council v Porter [2003] 2 ACC 558. Section 187B of the Town & Country Planning Act 1990 gives the court an original discretion. The local planning authority’s view that an injunction is necessary or expedient is not conclusive. The court must decide whether relief is just and proportionate, having regard to the purpose of restraining actual or apprehended breaches of planning control.
2. Part 4 Class B of the General Permitted Development Order 1995 permits use of land for up to 28 days in a calendar year, but limits motor-car and motorcycle racing, trials of speed and practice for those activities to 14 days. The court accepted that a valid distinction exists between competitive motorsport, which is more intensive and likely to generate greater noise, traffic and concentrations of people, and non-competitive recreational riding or training.
3. The claimant’s evidence did not establish that the activities at Down Farm involved racing, trials of speed or practice for them. The defendants’ direct evidence was not undermined by the event programmes, membership material or ACU entry form. Since the activities occurred on fewer than 28 days per year, the alleged breach of the GPDO was not proved.
4. The earth mounds were within the scope of the earlier enforcement notice. The requirement to restore the land to its original contours made it clear that the mounds fell within the reference to ancillary structures. Their reconstruction therefore constituted a breach, and further reconstruction was apprehended.
5. Despite that breach, an injunction requiring immediate removal was not just and proportionate. The mounds were temporary, present for only five or six months each year, and their additional environmental impact was minimal. The defendants had appealed against a later enforcement notice specifically directed to the mounds, supported by expert evidence that the appeal had a good prospect of success. The claimant had also shown no compelling urgency. The planning merits and alleged landscape harm could be considered by the planning inspector.