City of Westminster v Davenport & Anor

On an application for an injunction under section 187B of the Town and Country Planning Act 1990, the court generally accepts the planning authority’s assessment of planning merits. The court decides whether injunctive relief is appropriate, but does not become a planning appeal tribunal.

An enforcement notice is a nullity only where it is bad on its face, for example because it is hopelessly ambiguous or omits a statutory requirement. Substantive challenges which could have been raised on an appeal against the notice cannot ordinarily be advanced later. Whether an additional use is ancillary or incidental to a primary use is an objective question of fact and degree. Persistent non-compliance and unsuccessful enforcement may make an injunction necessary, particularly where no planning application has been pursued.

The City of Westminster applied under section 187B of the Town and Country Planning Act 1990 for a permanent injunction against Edward Davenport and persons unknown. The application sought to continue an interim order made on 13 January 2010, restraining commercial or other non-residential use of 33 Portland Place and development without planning permission.

The Council relied on a 2006 enforcement notice requiring the premises to be used only for residential purposes. The notice had not been appealed. Mr Davenport argued that it was a nullity, that the alleged activities were ancillary to residential use, and that the injunction was premature, oppressive or unnecessary. The central issues were the effect of the unchallenged notice, the scope of the court’s inquiry under section 187B, and whether permanent relief was just and convenient.

1. Planning merits. The application was granted. In exercising section 187B jurisdiction, the court was not required or entitled to reach an independent view of the planning merits. The actual or anticipated breach and the planning harm were matters determined within the planning process. The court’s task was to decide whether an injunction was necessary and appropriate.
2. Enforcement notice. The 2006 notice was not a nullity. It adequately communicated that residential use was required unless another use had planning permission. The reference to the lapsed 1960 planning condition was inaccurate but superfluous. A defect apparent on the face of a notice may amount to nullity; a challenge dependent on facts or merits generally concerns invalidity and should be pursued under section 174. Section 285 prevented those grounds being raised later.
3. Change of use. The commercial activities were objectively distinct from residential use and could not reasonably be characterised as ancillary, incidental, or ordinarily incidental to it. The question was one of fact and degree. Nature, scale, regularity and, where available, the level of use were relevant indicators. The evidence of repeated commercial events, filming and paid hire established breaches of the notice.
4. Discretion. Persistent and flagrant non-compliance, failure to pursue planning permission or a certificate of lawful use, disregard of assurances, and the absence of an effective alternative remedy strongly supported an injunction. Section 187B did not require prior use of other enforcement powers. The court should grant relief only where it would be prepared, if necessary, to contemplate committal for breach, but that consideration caused no inhibition here.
5. Proposed limits, suspension or variation were matters for a planning application, not for the court to determine in place of the planning authority. The injunction was continued in permanent form, subject to detailed drafting, restraining unauthorised commercial or other non-residential use.