Trott v Broadland District Council

An injunction under section 187B of the Town and Country Planning Act 1990 may restrain an actual or apprehended breach of planning control. It cannot be founded merely on non-compliance with a requirement in an enforcement notice. The alleged conduct must amount to development without permission or failure to comply with a condition of a planning permission.

A condition requiring development to accord with drawings does not require land to be retained as amenity space unless the drawings or condition impose that requirement. A planning authority’s expectation that land will be available to residents cannot add an obligation absent from the permission.

The Council obtained an injunction against the appellant under section 187B of the Town and Country Planning Act 1990. The injunction required him not to prevent residents of the Waterside Flats from using land which had formed part of the application site for the flats.

An earlier enforcement notice had been appealed to a Planning Inspector. The Inspector corrected the notice, upheld it, and required that the land be made available for the enjoyment of flat residents. The Inspector also discharged an original planning condition and granted a fresh permission subject to a revised condition requiring the development to accord with specified drawings.

A deputy High Court judge granted the Council’s injunction. The appeal raised whether the appellant’s conduct breached the revised planning condition and, alternatively, whether the enforcement notice or its correction was invalid.

Appeal allowed. Sullivan LJ, with whom Toulson LJ and the Chancellor agreed, held that the Council had not established a breach of planning control capable of being restrained under section 187B of the Town and Country Planning Act 1990.

1. Section 187B concerns a breach of planning control. A failure to comply with an enforcement notice may sometimes also breach a planning condition, but non-compliance with a notice requirement does not by itself establish such a breach.

2. The original condition 2 had been discharged. The revised condition 2 required the development to accord with specified drawings. Those drawings showed the land as undeveloped and showed a hedge separating it from No 3 Orchard Drive. They neither described it as an amenity area nor required that it be made available to the flat residents.

3. The Council’s understandable assumption that the land would be used as amenity space could not supply a requirement omitted from the condition. The Inspector’s requirement that the land be made available arose from the enforcement appeal and a concession. It did not determine the meaning of the revised planning condition. There was therefore no failure to comply with that condition and no breach to restrain.

4. The remaining grounds were strictly unnecessary. The Court nevertheless indicated that, after an enforcement appeal and an Inspector’s decision, any challenge to the lawfulness of the correction should be brought promptly under section 289 or by judicial review. Unless quashed, the corrected notice was formally valid and had to be obeyed: [1998] AC 92. The Court reserved whether the historic distinction between a null enforcement notice and one merely invalid but correctable remains appropriate: [1963] 2 QB 196.

5. On the assumed historic approach, the original notice might have been a nullity because it failed to identify the planning condition said to have been breached. The corrected notice, however, was clear. Read in its full context, its requirement to make the land available for residents’ enjoyment required that they be allowed access and use of it.

• Court of Appeal (Civil Division): Allowed the appeal and held that no breach of planning control had been shown for the purposes of section 187B of the Town and Country Planning Act 1990: [2011] EWCA Civ 301.
• High Court, Queen’s Bench Division: On 28 July 2010, John Leighton Williams QC, sitting as a deputy High Court judge, granted the Council an injunction under section 187B. That order was overturned.
• Planning Inspector: On an enforcement appeal in 1997, the Inspector corrected and varied the enforcement notice, imposed a requirement that the land be made available for the flat residents’ enjoyment, and granted a fresh permission subject to a revised condition 2. No appeal was brought under section 289.