Dacorum Borough Council v Purcell & Ors

A statutory challenge to a planning decision will be struck out where the proposed ground has no realistic prospect of success. An inspector’s reasons need be intelligible and adequate on the principal important controversial issues, but need not address every material consideration.

Where temporary planning permission would leave the same safety-related costs and liabilities, its shorter duration may strengthen rather than weaken the proportionality objection. Article 8 may be relevant to a Gypsy or traveller’s planning application, but an express reference is unnecessary where the inspector has addressed the substance of the private and family life interests and the omission could not have affected the outcome.

An injunction under section 187B of the Town and Country Planning Act 1990 is discretionary and requires consideration of the planning purpose, the continuing breach, personal circumstances and the practical hardship caused.

Irish Traveller families occupied caravans on land beside Wilstone Reservoir without planning permission. A planning inspector dismissed their appeal against refusal of permission and upheld an enforcement notice concerning hard-standing and a septic tank.

The respondents brought a statutory challenge under sections 287 and 288 of the Town and Country Planning Act 1990. They argued that the inspector had wrongly concluded that the reservoir would require costly upgrading, had failed to consider temporary permission, and had failed adequately to weigh their Article 8 interests.

The Council sought strike-out or summary judgment and an injunction under section 187B. The central issues were whether the challenge had a realistic prospect of success and whether an injunction should restrain the continuing breach.

1. The respondents’ application was struck out under CPR 3.4(2)(a), and summary judgment was unnecessary. The challenge disclosed no reasonable grounds with a realistic prospect of success.

2. The inspector’s reasons concerning reservoir upgrading were intelligible and adequate. He explained the classification of reservoirs, the significance of a community, and why the proposed occupation would lead to reclassification. His reasons addressed the principal controversial issue and disclosed no substantial doubt that he had erred in law.

3. Temporary planning permission did not provide a realistic answer. The accepted evidence was that an engineer’s binding recommendations would reflect the community actually existing at inspection, whether occupation was lawful or unlawful. The same upgrading liability could therefore arise, while the benefit of temporary permission would be less than that of indefinite permission.

4. The inspector had considered the substance of the respondents’ private and family life interests, including stable accommodation, education, medical treatment and local facilities. Although express reference to Article 8 might have been advantageous, the established proportionality assessment meant that it was inconceivable that an express citation would have changed the outcome. The court did not decide whether Article 8 protected occupation of land never granted planning permission, an issue then pending in Rafferty.

5. The injunction jurisdiction under section 187B was original and discretionary. The respondents’ continuing unlawful occupation, the likely reservoir-upgrading liability, the need to respect valid planning decisions, and the availability of alternative temporary accommodation justified an injunction. It was ordered not to take effect before midnight on 31 July 2009.