London Borough of Barnet v Adler & Ors

On an application under section 187B of the Town and Country Planning Act 1990, the court must accept the existing planning position but must independently assess whether an injunction is proportionate. Relevant considerations include the seriousness and duration of the breach, environmental harm, the planning history, hardship, alternative accommodation or arrangements, and the prospects of a pending planning appeal. A pending appeal does not create a general rule requiring suspension of an injunction. Its likely outcome and timing may be given weight where the circumstances justify it. Relief may be suspended for a limited period to permit orderly compliance, but not merely to await the appeal.

The claimant local planning authority sought an injunction restraining the continued use of residential premises as a school, contrary to an enforcement notice upheld by a planning inspector. The inspector had rejected the use because it caused loss of housing accommodation and unacceptable noise and disturbance, and had allowed 11 months for compliance.

The school remained in operation after the compliance period. A later planning application was refused, and an appeal was pending. The defendants relied on new noise evidence, the possibility of success on appeal, difficulties in finding alternative premises, and disruption to the pupils’ education. The central issue was whether an injunction should be granted and, if so, whether it should be suspended.

1. The injunction was granted under section 187B of the Town and Country Planning Act 1990, but its operation was suspended until 31 December 2009.

2. The approach stated in South Buckinghamshire District Council v Porter [2003] 2 AC 558 governed the application. The court was not entitled to decide the planning merits afresh. It was, however, required to consider for itself hardship, the availability of alternatives, the planning history, the seriousness and duration of the breach, environmental harm, and the necessity and proportionality of coercive relief.

3. The court could take account of the possibility that a pending planning appeal might succeed. There was no general principle that an injunction which should otherwise be granted could not be suspended by reference to the expected result or duration of planning proceedings. The decisions in Waverley BC v Lee [2003] EWHC 29 (Ch) and [2003] EWHC 941 (QB) were fact-specific. The approach in Mid-Bedfordshire DC v Smith [2003] EWHC 932 (QB) and Oxfordshire County Council v Wyatt Bros [2005] EWHC 2402 confirmed that the question depended on all the circumstances.

4. The breach had continued for a prolonged period after the defendants had been given ample opportunity to comply. The inspector’s findings of housing loss and environmental harm remained significant. The new noise evidence conflicted and did not justify substantial weight being given to the appeal prospects. The pupils’ interest in a particular form of education did not outweigh the public interest in ending the breach, although some compromise in educational arrangements might be necessary.

5. Immediate closure would nevertheless risk unnecessary disruption to the pupils and their families. The suspension was therefore granted only to allow orderly educational arrangements to be made. It was not granted to await the outcome of the planning appeal. The injunction’s terms were to be reviewed by the court if there were a further relevant planning development.