Coates v Dartford Borough Council

On an application to vary an injunction restraining residential occupation in breach of planning control, the court must balance planning considerations, the public interest in enforcing planning control and obedience to court orders, and the defendant’s personal and family circumstances, including Article 8 rights. The court is not required to determine the planning merits independently. Alternative accommodation, the length and circumstances of occupation, the defendant’s knowledge of the injunction, and any deliberate breach are relevant. Humanitarian considerations do not create an independent duty of common humanity; they are factors within the statutory and proportionality assessment. An injunction should not ordinarily be suspended merely to await the outcome of a planning application where that would reward or appear to condone deliberate disobedience.

The appellant occupied land in Dartford with a residential caravan after purchasing it in May 2012. An injunction obtained by the Council in 2011 prohibited residential occupation of the land by named persons and persons unknown. The appellant applied to vary the injunction so that it would be suspended pending the determination of her planning application and any appeal.

The Medway County Court refused the application on 11 July 2012. The appellant sought an extension of time and permission to appeal, alleging factual errors, failure to consider her Article 8 rights and a duty of common humanity, and failure to account for the Council’s alleged non-compliance with Government guidance on Gypsy and Traveller accommodation.

1. Applications refused. The application for an extension of time and the application for permission to appeal were refused. The injunction contained in the order of 25 October 2011 remained in force.
2. Under Town and Country Planning Act 1990, section 187B, the court may grant an injunction appropriate to restrain an actual or apprehended breach of planning control. On an application to vary such an injunction, the court must apply the principles identified in South Bucks District Council v Porter [2003] 2 AC 558. The judge should consider planning history and merits without reaching an independent planning decision, hardship to the defendant and family, alternative sites or accommodation, health and education, the degree and duration of the breach, environmental harm, the public interest in planning control, and proportionality under Article 8.
3. The principles also apply where a person occupies land after an injunction has been granted and later seeks variation. The importance of obeying court orders is an overarching consideration. Suspending an injunction in circumstances involving knowing and continuing breach may condone contempt and confer the benefit which the injunction was intended to prevent. The approach in Mid Bedfordshire District Council v Brown [2005] 1 WLR 1460, South Cambridgeshire District Council v Gammell [2006] 1 WLR 658 and Broxbourne Borough Council v Robb [2011] EWCA Civ 1355 was applicable.
4. The judge below had considered the appellant’s personal circumstances, her disabled son’s needs, cultural considerations, possible alternative accommodation, the proceeds of sale of another property, her knowledge of the injunction and her continuing breach. Those findings were open to her on the evidence and disclosed no arguable error of law or fact with a real prospect of success.
5. The reference in R v Lincolnshire County Council ex parte Atkinson 8 Admin LR 529 to a duty of common humanity did not create an independent legal duty. Relevant humanitarian considerations were to be considered within the statutory injunction and proportionality exercise. The Council’s alleged failure to comply with Government guidance did not alter the result because the appellant had other accommodation opportunities and was not shown to have nowhere else to go.

1. High Court (Queen's Bench Division): permission to appeal from the Medway County Court was refused, as was an extension of time. The injunction remained in force.
2. Medway County Court: Her Honour Judge Cameron refused the appellant’s application to vary the injunction on 11 July 2012.