Forest of Dean District Council v Wildin

The court’s jurisdiction under section 187B of the Town and Country Planning Act 1990 is original, not merely supervisory. The court must decide whether an injunction is just and proportionate in all the circumstances. It may consider matters outside planning policy and judgment, but it must respect the statutory allocation of planning functions. Relevant considerations include the persistence of the breach, the effectiveness of other enforcement measures, the defendant’s personal and financial circumstances, the public interest in planning control, and any Convention rights. Where the development is a clear breach and the adverse planning effects are serious, hardship will not necessarily outweigh the public interest in enforcement. Under Class E of the GPDO, whether a building has more than one storey is a matter of fact and degree, assessed by considering the building as a whole.

The Council applied for an injunction under section 187B of the Town and Country Planning Act 1990 requiring Mr Wildin to comply with an enforcement notice concerning land at 24 and 24A Meendhurst Road, Cinderford. The notice required removal of structures and materials and reinstatement of the land following excavation, reprofiling, wall construction and drainage works.

Mr Wildin contended that the building was permitted development under Schedule 2, Part 1, Class E of the Town and Country Planning (General Permitted Development) Order. An inspector rejected that argument, finding that the building had more than one storey, upheld the enforcement notice with amendments, and extended the compliance period to two years. Permission to appeal was refused. The issues were whether an injunction should be granted, whether the court could reconsider the inspector’s planning conclusion, and whether the injunction would be proportionate in light of the financial, housing, health and safety consequences.

1. The application was granted. The court ordered compliance with the amended enforcement notice within 18 months.

2. Under section 187B of the Town and Country Planning Act 1990, the court exercises an original jurisdiction. The defendant may raise matters beyond conventional judicial review grounds. The discretion must nevertheless be exercised judicially and with regard to the statutory purpose of restraining actual or threatened breaches of planning control.

3. There is no single test for granting relief. Continuing breach, persistent non-compliance and the absence of any effective alternative restraint strongly favour an injunction. The ultimate question is whether relief is just in all the circumstances.

4. The court must respect the allocation of planning policy and judgment to the local planning authority and the Secretary of State. It was not appropriate to reopen the inspector’s conclusion that the building was not permitted development. In any event, whether a building has more than one storey under Class E is a matter of fact and degree. The building must be considered as a whole; it is too simplistic to assess only the percentage of floor area containing rooms upstairs.

5. The defendant’s financial position, risk of losing his home, his partner’s health, and alleged instability risks were relevant considerations. The evidence did not establish that these matters outweighed the serious planning harm or the public interest in compliance. The court accepted that the injunction could interfere with home and private life, but concluded that the interference was proportionate for the purposes of article 8 and section 6 of the Human Rights Act 1998.

6. A realistic period for compliance was required because the works were substantial and non-compliance could have serious consequences. The court therefore allowed 18 months rather than the 12 months sought by the Council.

The judgment was a first-instance decision on the Council’s application for an injunction. The inspector’s decision upholding the enforcement notice had stood after permission to appeal was dismissed by Hickinbottom J in July 2015.