South Bucks District Council v Smith & Anor

An injunction under section 187B of the Town and Country Planning Act 1990 engages an original judicial discretion. The court must not re-decide the planning merits, but must assess hardship, family health and education, alternative sites, planning history, enforcement history, environmental harm, necessity and proportionality. A pending planning application cannot ordinarily be used to reopen the planning merits, but a realistic, non-fanciful prospect of permission may justify suspending the injunction. The court must balance enforcement of planning control against the risk of imposing an excessive burden on the defendants and their families.

The Council sought an injunction under section 187B of the Town and Country Planning Act 1990 to restrain the residential occupation of caravans and associated use of land in the Metropolitan green belt. The defendants, father and son, claimed gypsy status and had lived on the site for many years. Planning permission had repeatedly been refused.

Shortly before the hearing, revised Government guidance was issued and the defendants made a fresh planning application. The central issue was whether an injunction should take effect immediately or be suspended pending the final determination of that application, including any appeal.

1. The court had an original discretion under section 187B of the Town and Country Planning Act 1990. The issue was not whether to review the Council’s planning decisions, but whether injunctive relief was appropriate in the light of the principles in South Bucks District Council v Porter [2003] 2 AC 558.
2. The court accepted that it must not substitute its own view of the planning merits. It nevertheless had to consider the practical consequences of enforcement, including hardship, health, education, alternative accommodation, the planning history, the flagrancy and duration of the breach, environmental harm, urgency, and the Council’s own consideration of human-rights issues.
3. The prolonged and flagrant breach, the repeated refusal of permission, the Council’s careful resolution, and the absence of suitable alternative accommodation all favoured an injunction. The defendants’ health and educational circumstances did not, by themselves, justify refusing relief.
4. The revised guidance, the defendants’ newly recognised gypsy status, the prospective accommodation assessment, and the fresh planning application meant that their position was no longer hopeless. There was a realistic, although not necessarily strong, prospect of temporary or personal permission. The court was not deciding that application, but could take that prospect into account when exercising its discretion.
5. Immediate removal was not sufficiently urgent to justify imposing the substantial burden of relocation before the planning process was complete. The injunction was therefore granted, but its operation was suspended until the fresh application and any necessary appeal had been finally determined.

The judgment describes earlier planning appeals and proceedings. A previous Secretary of State decision was quashed by consent in the Administrative Court and remitted for redetermination; the appeal was subsequently dismissed again on 17 August 2003. Those matters formed part of the planning history considered on this application.