New Forest District Council v Owen & Ors

An application under section 187B of the Town and Country Planning Act 1990 engages an original, discretionary jurisdiction. The court must decide whether an injunction is just and proportionate against each defendant. It must consider the planning history, the seriousness and urgency of the alleged breach, available enforcement remedies, personal circumstances, hardship, alternative accommodation, and any material prospect of a changed planning outcome. The court must not determine the planning merits afresh, but it may consider whether pending or prospective planning decisions could alter the position. Relief should be granted only where the order is sufficiently clear and the court would be prepared, if necessary, to enforce it by imprisonment. Where substantial factual and legal issues remain unresolved, summary or interim injunctive relief is inappropriate.

New Forest District Council brought three related Part 8 claims seeking permanent or interim injunctions requiring the defendants to cease residential use of units 91, 92 and 93 at Merryfield Park, a former RAF camp in the Green Belt. The claims relied principally on an enforcement notice issued in 1995 and a lawful development certificate issued in 2005.

The defendants raised arguable issues concerning the scope of the enforcement notice, the effect of section 181 and the four-year limitation period in section 171B of the Town and Country Planning Act 1990, the meaning and enforceability of the certificate, the lawfulness of their respective uses, previous convictions, personal circumstances, article 8 rights and emerging planning policies. The central question was whether the Council had established a sufficient basis for immediate or final injunctive relief without a full trial.

1. Applications dismissed. The Council had not shown that final or interim injunctions were appropriate against any defendant. The claims raised substantial factual and legal issues and, if pursued, should proceed as ordinary Part 7 claims with pleadings, case management and a full trial.
2. Section 187B confers an original and discretionary jurisdiction. The court must decide whether relief is just and proportionate in all the circumstances. It must not substitute its own planning judgment for that of the planning authority or an inspector, but may consider the possibility of a changed planning decision, pending planning application or prospective planning permission.
3. The relevant considerations include the seriousness and flagrancy of the alleged breach, the planning history, prior enforcement action, urgency, environmental harm, the authority’s treatment of material considerations, the availability of alternative remedies, and the defendant’s personal circumstances. Hardship, health, family and private life, property rights and the availability of alternative accommodation are material considerations.
4. An injunction should ordinarily be granted only where the court would be willing, if necessary, to enforce it by imprisonment. The order must be sufficiently precise for the defendant to know what is prohibited and for the court to enforce it. A proposed injunction limiting use to occasional rest use was too imprecise because the permitted limits had not been identified.
5. The defendants had arguable cases that the 1995 enforcement notice was confined to units 15 and 30, that the 2005 certificate was ambiguous and potentially unenforceable, and that residential use of units 91 and 92, and possibly unit 93, had become immune from enforcement under section 171B. Those issues could not properly be resolved summarily.
6. The Council had not adequately considered the effect of the National Planning Policy Framework, proposed policy SOP1, temporary personal planning permission, or the defendants’ article 8 rights. In the circumstances, removing the defendants from their homes would be disproportionate. Mandatory orders requiring removal of residential belongings or paraphernalia were also unwarranted.
7. Mr Malem had an arguable case that his occupation was lawful residential use or ancillary to his employment as a caretaker or night watchman. The Council conceded that there was no current unlawful use and had shown no threatened future breach warranting an injunction.