Ali & Ors v London Borough of Newham

A court has an inherent power to suspend an injunction enforcing a planning obligation under section 106(5) of the Town and Country Planning Act 1990, but the power must be exercised sparingly. Suspension may be justified where it is fair, just and reasonable, particularly if an imminent planning appeal may fundamentally alter the position, enforcement would cause serious hardship, and there is little countervailing planning harm.

Hardship caused by the enforcement of an unlawful use is not, by itself, sufficient. Where trustees have freely given a binding undertaking to obtain a planning benefit and have repeatedly failed to progress a policy-compliant development, the court should hold them to their bargain. Continuing delay, obfuscation and lack of credible progress may defeat a renewed application for suspension.

The applicants were trustees owning the Riverine Centre, also known as the London Markaz, in Newham. The site was being used as a mosque and religious centre despite the expiry of temporary planning permissions and the absence of a policy-compliant mixed-use development scheme.

The trustees had given a unilateral undertaking in 2011 to submit a planning application for such a scheme. Following breach of that undertaking, an injunction was granted in 2013 under section 106(5) of the Town and Country Planning Act 1990, requiring removal of unlawful development and cessation of the use of the site as a place of worship.

The Court of Appeal suspended the injunction pending planning appeals: [2014] EWCA Civ 676. Those appeals and subsequent challenges failed. The trustees then applied for a further suspension, relying on hardship to the community and alleged negotiations with a prospective development partner. The central issue was whether the circumstances now made further suspension fair, just and reasonable.

1. Application refused. The injunction was not suspended again. Permission to appeal was also refused. The trustees were ordered to pay the respondent’s costs, subject to the stated reductions.
2. Section 106 planning obligations are contractual in nature, although enforcement is undertaken by the local planning authority in the public interest. An injunction under section 106(5) holds the person giving the undertaking to the bargain. The court has an inherent power to suspend such an injunction, but that power must be used sparingly.
3. The relevant question was whether suspension was fair, just and reasonable in the circumstances. The factors identified in the earlier Court of Appeal decision included the imminence and significance of pending planning appeals, the hardship caused by enforcement if the appeals might succeed, and the absence of substantial countervailing planning harm while the position remained unresolved. Those circumstances no longer existed.
4. The planning appeals and subsequent statutory and judicial review challenges had failed. The trustees had made no meaningful progress towards a policy-compliant mixed-use development. No licence or exclusivity agreement had been completed, no site investigations or decontamination strategy had been advanced, no outline proposal had been prepared, and there had been no meaningful pre-application discussions with the local authority.
5. Although enforcement would cause hardship to the religious community, that hardship resulted from an unlawful use. The trustees had accepted the undertaking with legal advice in order to obtain a further period of temporary planning permission. Their continuing procrastination and lack of credible evidence meant that suspension would defeat the purpose of the injunction and undermine the statutory planning regime.
6. The pending European Court of Human Rights application, alleged mitigating circumstances concerning legal advisers, and oral indications of interest from a prospective developer did not provide reasonable grounds for an appeal. The application for permission to appeal was therefore refused.

• Court of Appeal: In [2014] EWCA Civ 676, the court held that the injunction could be suspended under the court’s inherent jurisdiction and suspended it pending the determination of the planning appeals.
• High Court: The Secretary of State dismissed the planning appeals in October 2015. Subsequent applications for judicial review and statutory review were refused. The present court refused a further suspension of the injunction.