Wealden District Council v Mitchell

An injunction may restrain an actual or apprehended breach of planning control where the statutory conditions are met and relief is just and convenient. The court will generally not reconsider the merits of a planning decision taken through the proper planning process, save in exceptional circumstances. It must nevertheless assess whether the injunction is proportionate, particularly where compliance may affect a person’s home. For an interlocutory injunction which would effectively grant the final relief, the court must consider the serious-question threshold, adequacy of damages and the balance of convenience, while also assessing the likelihood of success at trial. The public interest in enforcing planning control, the nature and persistence of the breach, and the respondent’s opportunities to comply are material considerations.

Wealden District Council applied for an interlocutory injunction against Dean Mitchell under the Town and Country Planning Act 1990. The application sought demolition of a structure on Mr Mitchell’s land, restoration of the land and prohibitions against further residential structures.

The structure had been the subject of an enforcement notice. An appeal to a planning inspector resulted in a modest extension of the compliance period, but Mr Mitchell did not comply. He did not attend the injunction hearing, although the court was satisfied that he had been properly served and was voluntarily absent.

The central issues were whether there was a serious question to be tried, whether damages would be an adequate remedy, and where the balance of convenience lay, given that the interlocutory relief would substantially determine the substantive claim.

1. Application granted. The court granted an injunction substantially in the terms sought, allowing Mr Mitchell a further three months to comply and preserving liberty to apply.
2. Under section 187B of the Town and Country Planning Act 1990, the local planning authority could seek an injunction to restrain an actual or apprehended breach of planning control. Its standing was also supported by section 222 of the Local Government Act 1972. The High Court had jurisdiction under section 37 of the Senior Courts Act 1981 where it was just and convenient to grant an injunction.
3. Following South Bucks District Council v Porter [2003] 2 AC 558, the court was not ordinarily concerned with the merits of the planning decision where the planning process had been properly followed. It had, however, to consider proportionality and the possibility of committal for breach. Particular care was required where compliance might require a person to leave a family home. The public interest in enforcing planning control and the nature and flagrancy of the breach were also relevant.
4. The court applied the principles in American Cyanamid Co v Ethicon Ltd [1975] AC 396. There was a serious question to be tried, and the Council had a strong case because the enforcement notice remained valid, had been substantially upheld on appeal and had not been complied with. Damages would not adequately protect the Council because the continuing breach was difficult to quantify and Mr Mitchell appeared unable to pay damages.
5. The balance of convenience favoured relief. The injunction appeared proportionate and would not necessarily deprive Mr Mitchell of his only home. He had received substantial time and assistance to comply or obtain alternative accommodation. The structure was plainly capable of residential use, and the argument that it was not a house because it lacked ordinary amenities had no merit.

First-instance decision. No earlier appellate decision was stated in the judgment.