Stratford On Avon District Council v Persimmon Homes Ltd

An injunction under section 187B of the Town and Country Planning Act 1990 is an exceptional and coercive remedy. The court must exercise an independent discretion and assess whether relief is necessary and proportionate, while treating the planning status of the land as settled. The absence of prior use of other enforcement powers does not prevent an application, but the court should consider the seriousness, persistence and flagrancy of the breach, the urgency of intervention, the effectiveness of conventional enforcement and the conduct of the parties. Relief should be refused where alleged breaches are not proved, future non-compliance is unlikely, or ordinary enforcement is likely to secure compliance.

The local planning authority sought an injunction under section 187B of the Town and Country Planning Act 1990 against a developer constructing 85 dwellings. It alleged breaches concerning delivery hours, the banking of vehicles, the provision and operation of a gate person, and landscaping obligations imposed by planning conditions and approved management documents.

The developer opposed the application, disputing the construction of the relevant obligations and the evidence of breach. It relied on its undertaking to take reasonable measures to secure compliance. The central issues were whether breaches had been established and whether injunctive relief was necessary and proportionate.

1. The application was dismissed. The court’s power under section 187B of the Town and Country Planning Act 1990 is discretionary. Although recourse to other enforcement powers is not a prerequisite, an injunction should be granted only where it is necessary and proportionate to restrain an actual or apprehended breach.
2. The court was not required to reconsider the planning merits or the existing planning status of the land. It was nevertheless required to assess the seriousness and flagrancy of the breach, the urgency of securing compliance, the likely effectiveness of conventional enforcement, and the proportionality of the coercive remedy. The approach in South Bucks DC v Porter [2001] EWCA Civ 1549 was applied.
3. The phrase “to be avoided” in the approved Method Statement meant that deliveries during the specified periods were to be discouraged, rather than absolutely prohibited. It covered incoming and outgoing delivery vehicles. On the evidence, the developer had not breached that obligation. In any event, relief on that ground alone would have been disproportionate because future breaches were not shown to be likely and conventional enforcement was available.
4. The alleged breaches concerning vehicle banking and the gate person were not established. The evidence concerning banking was insufficient, including because one alleged incident did not establish that a vehicle was reversing. The gate-person obligation required drivers to be made aware not to mount the pavement, rather than requiring the gate person to prevent every such occurrence.
5. The landscaping issue had substantially arisen from a misunderstanding which had been clarified. Injunctive relief was unnecessary at that stage, although the position might differ if the approved programme were not implemented. The application was therefore dismissed, with costs to be agreed or determined on written submissions.