Doncaster Metropolitan Borough Council v AC & Anor

An injunction under Town and Country Planning Act 1990 s 187B engages an original and discretionary jurisdiction. The court must respect the planning authority’s planning judgment, but must independently decide whether injunctive relief is just and proportionate in all the circumstances, including the occupiers’ personal circumstances, Convention rights and the welfare of children.

The absence of an alternative Traveller site is a powerful consideration, but does not create an entitlement to remain indefinitely on an unlawfully established site. The best interests of children are a primary consideration, not necessarily the decisive consideration. Where planning control has been carefully considered, the breach is continuing, no adequate alternative exists and nothing short of an injunction will secure compliance, an injunction may be proportionate.

The Council sought a mandatory injunction under s 187B of the Town and Country Planning Act 1990 to restrain the continued use of the Waterstone Lane Site as an unauthorised Gypsy and Traveller site and to secure compliance with an enforcement notice.

The defendants occupied or owned six pitches in the Green Belt. Earlier applications for permanent and temporary planning permission had been refused. Appeals to the Secretary of State were dismissed, and a further appeal to the High Court was unsuccessful. The Council later declined to determine renewed applications under s 70A.

The central issue was whether eviction, in circumstances involving children, cultural identity, lack of suitable alternative pitches and alleged deficiencies in Traveller-site provision, would be a proportionate exercise of the court’s discretion.

1. The court granted an injunction. The defendants were ordered to cease using the Waterstone Lane Site as a Gypsy caravan site by noon on 28 February 2013. The individual owners were ordered to remove the relevant caravans, structures, hard standings and materials and to reinstate the land by noon on 31 May 2013.

2. Section 187B of the Town and Country Planning Act 1990 confers an original and discretionary jurisdiction. The court must not simply grant relief because the local planning authority considers it necessary or expedient. It must respect the authority’s planning judgment, independently consider all relevant circumstances, and grant relief only where it is just and proportionate.

3. The proportionality assessment required a structured balancing exercise. Relevant matters included the planning harm, the continuing illegality of the occupation, the availability of alternative accommodation, the defendants’ homes and cultural identity, Article 8 rights, the welfare of the children, the authority’s consideration of those matters, and whether any remedy short of an injunction would secure compliance.

4. The absence of suitable alternative pitches was a significant factor against eviction, particularly because caravan living was connected with the defendants’ Gypsy identity. It did not, however, entitle the defendants to establish or retain an unauthorised Green Belt site. Treating Traveller status as conferring such an entitlement would create difficulty under Article 14 and would be unfair to others subject to planning control.

5. The children’s best interests were a primary consideration under Article 3(1) of the UNCRC and Children Act 2004 s 11. They were not necessarily the primary consideration or decisive. The Council had offered settled accommodation close to the children’s schools. The likely adverse consequences of roadside living therefore resulted substantially from the parents’ choice not to accept that accommodation.

6. The defendants’ s 179(3) defence was confined to whether an owner could comply with the enforcement notice without assistance from others. Lack of an alternative site and hardship did not establish that defence. The defendants could physically leave the site without assistance.

7. The planning merits and the relevant personal circumstances had already been carefully considered by the Inspector, the Secretary of State and the Council. The court found no material change making temporary permission realistically likely. Since the occupation would otherwise continue indefinitely and no other effective remedy was available, the balance decisively favoured an injunction.

The judgment records earlier stages in the same dispute:

• Secretary of State for Communities and Local Government dismissed the defendants’ planning appeals on 9 March 2011 and extended the enforcement period.
• High Court (Administrative Court) dismissed HI’s appeal against that decision in [2012] EWHC 963 (Admin).
• High Court (Queen’s Bench Division) granted the Council’s injunction application in the present judgment.