King's Lynn & West Norfolk Council v Smith & Anor

When deciding whether to grant, continue, vary or discharge an injunction under Town and Country Planning Act 1990, section 187B, the court exercises an original and discretionary jurisdiction. It must consider the planning merits, the public interest in enforcing planning control, the defendant’s personal circumstances, alternative accommodation and the practical ability to comply. Relief is granted only where it is just and proportionate. Deliberate entry onto land and continuing defiance of a court order are powerful factors against suspending or discharging an injunction. A pending planning application does not justify tolerating continued breach where the prospects of permission are poor and suitable alternatives exist. Article 8 rights, including the particular needs of gypsies, remain relevant but do not outweigh the rule of law and planning controls in every case.

The Council obtained an injunction under section 187B of the Town and Country Planning Act 1990 restraining residential use of agricultural land. The defendants nevertheless moved caravans onto the land, continued residential occupation and added further structures. They later applied for planning permission and sought to vary or discharge the injunction.

The defendants relied on their family circumstances, Article 8 rights, the absence of conventional accommodation and the prospects of planning permission. The central issue was whether the injunction should continue pending, or despite, the planning application.

1. Application refused. The injunction was continued. The court exercised the original and discretionary jurisdiction under section 187B of the Town and Country Planning Act 1990, applying the principles in South Bucks DC v Porter [2003] 2 AC 558.
2. The court considered the planning merits while respecting the planning authority’s exclusive responsibility for planning policy. It then assessed all the circumstances, including the defendants’ conduct, alternative accommodation, prospects of planning success and personal circumstances. The order could be continued only if that result was just and proportionate.
3. The defendants’ conduct was the most important factor. They knowingly entered the land in breach of planning restrictions and the injunction, continued the breach after explanation of the order and sought relief only after committing themselves to the unlawful occupation. The reasoning in Mid Bedfordshire District Council v Brown [2004] EWCA Civ 1709 strongly supported maintaining the injunction because suspending it could condone contempt, diminish respect for court orders and undermine the rule of law.
4. There were available pitches or caravans in the area. The Council undertook to treat the defendants as priority housing cases, and short-term bed-and-breakfast accommodation could be lawful in the circumstances under the principle illustrated by Codona v Mid Bedfordshire District Council [2004] EWCA Civ 925.
5. The defendants had no realistic prospect of obtaining permission. The site was agricultural land, additional traveller accommodation was not needed, and the site-specific flood-risk and planning-policy objections were substantial. Their Article 8 and personal circumstances were relevant, but comparatively limited and insufficient to outweigh the public interest in enforcing planning controls and court orders.