Tewkesbury Borough Council v Brown & Ors

When granting an injunction under section 187B of the Town and Country Planning Act 1990, the court must independently assess whether relief is necessary and proportionate. The court accepts the planning status of the land as determined through the planning process, but must consider hardship, family welfare, health, education, alternative sites, planning history, environmental harm, public safety and the likelihood of enforcement. A local authority’s decision to seek an injunction is relevant, but does not determine the outcome. Where occupation is a flagrant and continuing breach, previous enforcement has failed, and the site presents environmental or highway dangers, an injunction may be proportionate even where removal causes serious disruption. The court may suspend the injunction to allow an orderly departure and may contemplate committal for breach.

The Council sought an injunction under section 187B of the Town and Country Planning Act 1990 concerning a field occupied by travelling showpeople in breach of planning control. The land had no permission for residential use and presented planning and highway objections.

The defendants argued that removal would cause hardship, disrupt children’s education, create health and safety risks, and leave them without a suitable alternative site. They also contended that the Council had not done enough to assist them. The central issue was whether an injunction was necessary and proportionate, and, if granted, when it should take effect.

1. Injunction granted. The court held that section 187B conferred a discretionary jurisdiction which had to be exercised with great care and in accordance with the principles in South Bucks District Council v Porter [2003] 2 AC 558.
2. The court was not entitled to reconsider the planning merits or planning status of the land. It nevertheless had to form its own view on proportionality. Relevant matters included hardship to the defendants and their families, health, education, alternative sites, planning history, environmental damage, highway safety, the urgency of ending the breach and the prospect of enforcement.
3. The Council’s decision to seek an injunction was relevant because it was the democratically accountable planning authority, but its weight depended on whether it had considered the material welfare and human-rights issues and had addressed necessity and proportionality.
4. The occupation was an immediate and flagrant breach of planning control following prolonged litigation concerning another unlawfully occupied site. The present site had no realistic prospect of planning permission, and the planning and highway objections were strong. The Council had reasonably advised and assisted the defendants, and the absence of an alternative site did not make relief disproportionate.
5. The court was prepared, if necessary, to enforce the injunction by committal. Its operation was suspended until 8 January 2007 to reduce disruption to the children’s schooling. The defendants were ordered to cease residential use and remove caravans, vehicles, trailers, machinery, fairground equipment and domestic items. A condition was also contemplated to prevent unsafe use of the A46 access.