Basingstoke & Deane Borough Council v John Eastwood & Ors

An injunction under section 187B of the Town and Country Planning Act 1990 involves an original and discretionary jurisdiction. The court must assess all the circumstances, including planning prospects, personal and Article 8 rights, the interests of children, and the public interest in enforcing court orders.

Where occupation begins after an injunction preserving the planning status quo, the absence of deliberate defiance does not remove the substantial weight attached to upholding the order. The best interests of children are a primary consideration, but they do not automatically outweigh planning and rule-of-law considerations. A variation should be refused where the planning prospects are remote and the evidence of particular hardship is limited.

The Council obtained, without notice, an injunction under section 187B of the Town and Country Planning Act 1990 restraining further development and residential occupation of land divided into plots and situated in open countryside and a flood zone.

MMT applied to vary the injunction so that he and his family could remain on plot 4 while their planning application was determined. He relied on the absence of alternative accommodation, Article 8 rights, the interests of children, and his mother’s ill health. The Council opposed the variation, relying on the poor planning prospects, the limited period of occupation, and the importance of enforcing court orders.

The central issue was whether, applying the principles governing section 187B injunctions and variations, it was just and proportionate to permit continued occupation.

1. Application refused. The injunction was not varied to permit MMT and his family to remain on the land.
2. Section 187B confers an original and discretionary jurisdiction. The court must consider all the circumstances and act compatibly with Convention rights. The relevant assessment includes the planning merits, the personal circumstances of those affected, Article 8 rights and the best interests of any children, together with the overarching public interest in ensuring that court orders are respected and obeyed. This approach followed South Bucks District Council v Porter [2003] 2 AC 558 and Broxbourne Borough Council v Robb [2011] EWCA Civ 1355.
3. The planning prospects were remote. The evidence identified substantial flood-risk, highway-safety and sustainability objections, and the prospects were not sufficiently strong to carry real weight in favour of variation.
4. Article 8 was engaged, but the interference was limited. The occupation had never been lawful and had lasted only weeks. There was little evidence of the particular effect on the children, their schooling or care, and no evidence that the mother’s health would improve by remaining on the plot.
5. The best interests of children were a primary consideration, but they did not trump the other factors. The Council was not criticised for failing to conduct a more detailed welfare assessment where the land had been unoccupied when the injunction was sought and the Applicant had provided no relevant information enabling such an assessment.
6. The principle that court orders must be upheld remained weighty even though deliberate defiance had not been established. The injunction had been made to protect the planning process and to preserve the status quo. Permitting the very residential occupation which it restrained would undermine that purpose. The same principle applied notwithstanding the absence of the more serious defiance found in Mid Bedfordshire District Council v Brown [2005] 1 WLR 1460.

Not stated in the judgment.