London Borough of Newham v Ali & Ors

Planning obligations under section 106 of the Town and Country Planning Act 1990 are contractual. Following a substantial breach, an injunction will normally be granted unless ordinary equitable principles justify withholding relief. Planning merits and outstanding planning appeals are usually irrelevant to that question. The court nevertheless has a separate power to suspend an injunction, which should be exercised sparingly. Suspension may be justified where an appeal is imminent, compliance would cause serious hardship with little practical benefit if the appeal succeeds, and preserving the status quo causes little countervailing planning harm. Human rights arguments do not alter that approach where enforcement falls within the permitted limitations on religious freedom and peaceful assembly.

The trustees of a charitable faith centre gave the Council a unilateral undertaking under section 106 of the Town and Country Planning Act 1990. They promised to submit a policy-compliant mixed-use planning application and, if they failed, to carry out extensive removal works. After the promised application was not made in the required form, the High Court granted the Council a mandatory injunction: [2013] EWHC QB 1715. The trustees appealed, arguing that the court’s discretion was broader, that pending planning appeals and community hardship made the injunction disproportionate, and that its operation should be suspended pending those appeals.

1. Grant of injunction. The appeal against the grant of the injunction was dismissed. Planning obligations under section 106 of the Town and Country Planning Act 1990 are contractual obligations. Damages will usually be inadequate because a local planning authority will rarely suffer loss measurable in money. In a case involving substantial breach, the court will normally grant a prohibitory or mandatory injunction unless delay, unconscionable conduct or another ordinary equitable principle justifies withholding relief.
2. Separate statutory purposes. The interim-injunction principles in American Cyanamid Co v Ethicon Ltd [1975] AC 396 did not apply because this was a final injunction. Planning obligations and the enforcement of planning control are distinct. Matters relevant to an injunction under section 187B or direct action under section 178 were not relevant to enforcement under section 106(5). The outstanding planning appeals were therefore generally irrelevant to whether the injunction should be granted. South Buckinghamshire District Council v Porter [2003] UKHL 26 was distinguished because it concerned an injunction restraining a breach of planning control, not enforcement of a voluntary contractual undertaking.
3. A person contending that a planning obligation no longer serves a planning purpose should seek discharge or modification under sections 106A or 106B, rather than resist enforcement under section 106(5). The engagement of articles 9 and 11 of the European Convention on Human Rights did not alter the result. Enforcement in the public interest fell within the permitted limitations in articles 9(2) and 11(2).
4. Suspension. The court had inherent power to suspend an injunction, and that question required separate consideration from the decision to grant it. The power should be exercised sparingly. The first-instance judge had failed to give separate reasons for refusing suspension, so the Court of Appeal exercised the discretion afresh.
5. Suspension was justified by the imminent planning appeals, the serious hardship which removal would cause if the appeals succeeded, the absence of significant short-term planning detriment in preserving the status quo, and the risk of pre-empting the appeal concerning extension of the temporary permission. The injunction remained granted but was suspended until the appeals were determined and a short period had elapsed for the parties to consider their positions. Lord Justice Patten and Lord Justice Vos agreed.

• Court of Appeal (Civil Division): On appeal, [2014] EWCA Civ 676, the grant of the mandatory injunction was upheld, but its operation was suspended pending the planning appeals and a short period thereafter.
• High Court of Justice, Queen’s Bench Division: His Honour Judge Seymour QC granted a mandatory injunction requiring compliance with the undertaking and completion of the removal works: [2013] EWHC QB 1715.