Broadland District Council v Brightwell

On an application for an injunction to restrain a breach of planning control, the court must decide for itself whether relief is just, appropriate and proportionate. It must not reopen the planning merits, which are treated as established through the planning process. The assessment must include the defendant’s and family’s hardship, including their home, health, education and the availability of suitable alternative accommodation, together with the planning history, the seriousness and persistence of the breach, and the public interest in effective planning control. Article 8 is engaged where removal from a home is involved. Proper application of section 187B of the Town and Country Planning Act 1990 covers, in substance, the proportionality exercise required by Article 8. An extemporary judgment should be read on the assumption that the judge knew the matters requiring consideration unless the contrary is demonstrated.

Broadland District Council obtained injunctions in the Queen’s Bench Division requiring Mr and Mrs Brightwell to cease residential and scrap-metal uses of agricultural land, remove mobile homes and associated structures, and demolish specified agricultural buildings. The deputy judge, Mr Nigel Wilkinson QC, made the order on 14 October 2009 under section 187B of the Town and Country Planning Act 1990.

The Brightwells appealed, arguing that the judge had failed properly to address the effect of Article 8 of the European Convention on Human Rights on their family home, children, health, community ties and livelihood. The central issue was whether the judge had applied the required independent discretion and proportionality assessment without reconsidering the planning merits.

1. Appeal dismissed. The injunctions were upheld. The deputy judge had made no material error in granting relief under section 187B of the Town and Country Planning Act 1990.
2. Following South Bucks District Council v Porter [2003] UKHL 26, the court’s function was not to reach an independent view of the planning merits. Those merits, and the existence of the breach, had been determined through the planning process. The court had instead to decide whether an injunction was appropriate and just against these defendants. Relief was strongly indicated where the breach would continue and nothing short of an injunction would restrain it.
3. The discretion had to be exercised compatibly with Article 8. The court had to assess proportionality, including the family’s hardship, the threat to their home and settled life, the children’s health and education, the availability of suitable alternative accommodation, the planning history, the persistence and flagrancy of the breaches, and the public interest in enforcing planning control and protecting the environment. Article 8 was engaged even though this was not a gypsy case.
4. Although the deputy judge did not expressly use the language of proportionality, his judgment showed that he had understood Article 8 to be relevant and had taken the family’s circumstances into account. Applying Piglowska v Piglowska [1999] Vol 1 WLR page 1360, an appellate court should resist a narrow textual analysis of an extemporary judgment and should assume that the judge knew the matters he was required to consider unless the contrary is shown.
5. The repeated and contumelious breaches, the long history of failed planning applications and enforcement action, and the Brightwells’ stated intention to continue living on the site made the grant of the injunction almost inevitable. The rule of law was not served by allowing planning orders to be disobeyed with impunity.

• Court of Appeal (Civil Division): The appeal from the Queen’s Bench Division was dismissed and the injunctions were upheld.
• Queen’s Bench Division: Mr Nigel Wilkinson QC, sitting as a deputy judge, granted injunctions on 14 October 2009 under section 187B of the Town and Country Planning Act 1990.