Broxbourne Borough Council v Robb & Ors

On an application to commit for breach of a planning injunction, the court may remedy defects in the local authority’s decision-making when exercising its own discretion. The court must consider personal circumstances, including Article 8 rights and children’s best interests, together with planning merits, planning history and alternative accommodation. Those considerations remain subject to the overarching public interest in maintaining respect for court orders. The court should be slow to vary an injunction so as to permit the conduct it prohibits. Committal is discretionary, but a suspended term of imprisonment may be appropriate where lesser sanctions would fail to give the injunction proper weight.

The claimant local authority applied under RSC, O52 to commit Mr Beary for contempt after he occupied plot 19 with his family in breach of a without notice injunction made under section 187B of the Town and Country Planning Act 1990. Mr Beary applied to vary the injunction pending his appeal against refusal of planning permission for residential caravan use.

He relied on his family’s lack of alternative accommodation, the children’s schooling, Article 8, the race equality duty and the prospects of the planning appeal. The issues were whether the council’s decision to seek committal was flawed, whether the injunction should be varied, and what sanction was appropriate.

1. Committal application. Following South Cambridgeshire District Council v O’Brien, any defect in the council’s consideration of equality or personal circumstances could be remedied by the court when exercising its committal discretion. The principle was particularly applicable because the committal order could be tailored to the individual case.
2. The council had discharged its duty under section 71 of the Race Relations Act 1976. The duty required substantive regard to equality of opportunity and good relations, assessed against all relevant circumstances and countervailing factors. The council had regard to the position of gypsy and traveller residents and had rationally distinguished long-term occupants from recent arrivals.
3. Variation. The application was governed by the principles in South Bucks District Council v Porter, Mid Bedfordshire District Council v Brown and South Cambridgeshire District Council v Gammell. The court had to consider the planning merits and history, including alternative sites; the family’s personal circumstances, including Article 8 and the children’s position; and the overarching public interest in ensuring that court orders were respected and obeyed.
4. The planning appeal did not have sufficiently realistic prospects to justify variation. Article 8 was engaged, and the children’s best interests were a primary consideration, but those interests could be outweighed by planning law and the need to enforce court orders. The decisive consideration was the authority of the existing injunction. The court should be slow to tolerate continuing contempt by varying an injunction so as to permit the conduct it prohibited.
5. Sanction. The court rejected a fine, a further adjournment and no order. Committal was discretionary and required careful scrutiny of the circumstances, but imprisonment was available once contempt was established. The appropriate order was committal for 28 days, suspended on condition that the caravans were removed within four weeks.