Brentwood Borough Council v Ball & Ors

On an application for an injunction under section 187B of the Town and Country Planning Act 1990, the court must exercise an independent and proportionate discretion. An injunction is ordinarily a last resort, particularly where conventional enforcement has not been tried and there is no urgency.

The court must balance the public interest in enforcing planning control and protecting the environment against the defendant’s personal circumstances, hardship, family life, health, education and the availability of alternative accommodation. It must not reopen the planning merits, but may form a broad view of the prospects of a pending planning appeal. No injunction should be granted unless the judge would be prepared, if necessary, to enforce it by imprisonment.

The claimant local planning authority sought an injunction under section 187B of the Town and Country Planning Act 1990 against six English Gipsy defendants and unnamed occupiers. The defendants had purchased agricultural land in the Metropolitan Green Belt and established a residential caravan site without planning permission, contrary to an earlier enforcement notice.

The defendants accepted the breaches but relied on their personal and family circumstances, the absence of alternative accommodation, the risks of returning to roadside or unsafe sites, and the real prospect of success in their pending planning appeal. The central issue was whether injunctive relief would be a proportionate remedy in the circumstances.

1. Application refused. The court declined to grant an injunction requiring the defendants to cease residential use of the land and restore it to agricultural use.
2. Section 187B confers a wide judicial discretion. Its principal purpose is to secure compliance with planning law, but an injunction is a draconian coercive remedy and ordinarily a last resort where conventional enforcement measures have failed or are unlikely to work.
3. The court must independently balance the public interest in enforcing planning control and protecting the environment against the private interests and hardship of the defendants and their families. Relevant matters included the seriousness and persistence of the breach, urgency, the authority’s enforcement history, the defendants’ motives and conduct, health and education, and the availability of suitable alternative accommodation.
4. The court must not second-guess existing planning decisions. It may, however, take a broad view of whether a pending planning appeal has a real prospect of success. It may refuse or adjourn an injunction application, or suspend an injunction, where that prospect makes immediate relief disproportionate.
5. The unlawfulness of an occupation may diminish the weight of hardship based on that occupation, but it is not an absolute bar to considering hardship. Hardship to children who were not responsible for the unlawful conduct should not be discounted merely because of their parents’ illegality.
6. No injunction should be ordered unless, when granting it, the judge would be prepared if necessary to contemplate imprisonment for breach. On the evidence, the defendants had no suitable alternative accommodation, their removal would cause significant hardship and disruption, the authority had not adequately considered those matters before applying, there was no sufficient urgency, and the planning appeal had a real prospect of success. The balance therefore made an injunction disproportionate.
7. The application was refused rather than adjourned. The council remained entitled to make a renewed application if circumstances materially changed, including after the planning appeal.

First-instance decision. No prior appellate decision in the same proceedings was stated.