Wokingham Borough Council v Scott & Ors

An injunction under section 187B of the Town and Country Planning Act 1990 is an original jurisdiction. The court must decide judicially whether relief is necessary, appropriate and proportionate to restrain an actual or apprehended breach of planning control.

The court must accept planning merits determined through the statutory process. It must not use the injunction application to reopen those merits, but must independently assess relevant hardship, human-rights consequences, planning harm, urgency, persistence of non-compliance and the effectiveness of other enforcement measures.

Wokingham Borough Council sought an injunction under section 187B of the Town and Country Planning Act 1990 against landowners, business occupiers and persons unknown in respect of unauthorised retail, leisure, residential and associated uses at Hare Hatch, within the Green Belt.

The landowners had withdrawn an appeal against an enforcement notice and later failed in proceedings concerning a certificate of lawful existing use and other planning decisions. They argued that the enforcement notice was defective and that discussions with the Council provided an understandable reason for withdrawing the statutory appeal. The central issues were whether those matters could be raised outside the statutory scheme and whether an injunction was necessary and proportionate.

1. Statutory scheme. The Town and Country Planning Act 1990 provides a comprehensive code. A challenge to an enforcement notice on grounds capable of being raised under section 174 must be made through that appeal route, followed where appropriate by judicial review. Section 285 prevents the validity of the notice being questioned elsewhere on such grounds.
2. The observations of Hughes LJ in Staffordshire County Council v Challinor [2008] 1 P&CR 10 were obiter and did not create a general exception to the statutory code. They contemplated only the possibility that, in a rare case involving an irrefutably defective notice and an understandable reason outside the landowner’s control for not appealing, the court might weigh the circumstances against granting an injunction. The defendants established neither limb.
3. A valid enforcement notice preserves permitted development rights and ancillary uses which are not being enforced against, but existing rights must be asserted in the statutory appeal. The injunction jurisdiction does not depend upon proving a breach of the enforcement notice itself.
4. Following South Bucks DC v Porter (No 1) [2003] 2 AC 558, the court had to undertake a structured and articulated assessment. Planning merits were for the planning authorities, while necessity, proportionality, hardship and the impact on Convention and property rights were for the court. Persistent and extensive breaches, prolonged failure of other enforcement measures, exhaustion of the planning process and substantial Green Belt harm made an injunction necessary and proportionate.
5. The injunction was to extend to persons unknown under section 187B. The defendants were given until 4 pm on 1 May 2017 to comply. Further submissions were reserved on the precise wording, the position of the Second Defendant and costs.

First-instance application under section 187B of the Town and Country Planning Act 1990. The judgment records earlier planning appeals, certificate proceedings and judicial-review challenges, but does not state a prior appellate decision in this claim.