Solihull Metropolitan Borough Council v Burton & Ors

On an application to vary an existing injunction, the court cannot simply reconsider the original injunction application from the beginning. A proportionality issue that was, or could have been, raised when the injunction was granted cannot ordinarily be reopened because alternative accommodation remains unavailable or because a fresh planning application has been refused. The best interests of children must be considered, but the principle does not rewrite planning law or make those interests decisive in every case. A consent order granting a substantial period of grace may properly be enforced. The court may, however, make a short practical extension where exceptional circumstances, such as severe weather, justify it.

The council obtained a consent injunction requiring defendants occupying green-field land unlawfully to cease using it for caravans and residential development, and to restore the land. The injunction was suspended for twelve months. The defendants applied to suspend it more widely until alternative pitches were offered, and separately sought permission for two pitches for particularly vulnerable defendants and their families. They relied on the absence of alternative pitches, children’s interests, and a fresh planning application which had been refused but could be appealed. The central issue was whether those matters justified reopening or varying the agreed injunction shortly before the suspension expired.

1. Applications dismissed, subject to a limited extension. The court refused both applications to suspend or substantially vary the injunction. It extended the suspension for 21 days because of exceptionally severe and unseasonal weather, substituting 21 April 2013 for the expiry date and 21 May 2013 for the date by which the land had to be restored.
2. The defendants’ lack of alternative caravan pitches did not justify reopening the matter. The court was dealing with the expiry of an agreed twelve-month period of grace, after nearly three years of unlawful occupation, not with an injunction application at the start of litigation. The defendants had already pursued their planning case before the council, a planning inspector, the Administrative Court and the Court of Appeal.
3. The proportionality of requiring departure despite the absence of alternative pitches had been fairly and squarely in issue, or could have been raised, when the injunction was granted. It could not be reopened on an application to vary. The defendants were bound by the bargain embodied in the consent order, and there was no undertaking by the council to secure alternative pitches.
4. The decision in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166; [2011] UKSC 4 required proper consideration of the children’s interests, but did not rewrite planning law. Those interests, and the adults’ preference to remain on the site, could not become decisive in a way that would undermine planning restrictions, including Green Belt restrictions.
5. Although a fresh planning application for two pitches made the case more finely balanced, its refusal and the prospect of further appeals did not justify reopening the consent order shortly before the agreed period expired. South Bedfordshire District Council v Price [2006] EWCA Civ 493 illustrated the principle that a court considering variation cannot simply start again from scratch.

The judgment records that the Secretary of State’s dismissal of the planning appeal was upheld by the Administrative Court. An application for permission to appeal to the Court of Appeal was refused on the papers, renewed for oral hearing, and withdrawn before that hearing. The present judgment concerned applications to vary a civil injunction made by consent.