East Hertfordshire District Council v Doherty & Ors

On an application to vary or discharge a planning injunction under section 187B of the Town and Country Planning Act 1990, the court must reassess necessity and proportionality in light of the occupants’ current circumstances. The court must balance enforcement of planning control and environmental protection against private and family life, health, welfare and children’s interests.

The court must not conduct a detailed merits review of planning policy or the likely success of an appeal. It may form a broad view of the planning position and consider the circumstances of occupation, the manner in which the injunction was obtained, subsequent conduct, available accommodation, the timing of the variation application and the likely duration of continuing harm. Deliberate occupation and continued breach to establish an unauthorised site may materially strengthen the case for maintaining the injunction.

The claimant local planning authority obtained an urgent injunction under section 187B of the Town and Country Planning Act 1990 requiring 19 travellers to cease residential use of agricultural land, remove caravans and mobile homes, and remove hardstanding and fencing.

The defendants admitted breaches of the injunction and applied to vary or discharge its mandatory terms so that they could remain on the land pending a planning appeal. Planning permission had been refused. The central issues were whether the injunction had been properly obtained and whether, having regard to Article 8 rights, children’s best interests and the available evidence, its continued operation remained necessary and proportionate.

1. Application refused. The injunction remained in force in both its prohibitory and mandatory terms. Sentencing for the admitted contempts was adjourned.
2. On an application to vary a section 187B injunction, the court must apply substantially the same approach as on the original application where the occupants’ identities and personal circumstances are known. It must balance the public interest in enforcing planning control and protecting the environment against the private interests of the occupants, including Article 8 rights, health, welfare and the best interests of children. Necessity and proportionality must be addressed.
3. The court must not undertake an in-depth investigation of planning policy, planning judgment or the prospects of a planning appeal. Those matters belong principally to the planning authorities and the Secretary of State. The court may, however, require a sound basis for the alleged planning breach, take the refusal of planning permission into account, and form a broad view of likely planning harm and the prospects of an appeal.
4. Relevant considerations included the circumstances of first occupation; the information available when the injunction was obtained; conduct after knowledge of planning restrictions or the injunction; current health, welfare and family circumstances; the prospects of an appeal; respect for court orders; the promptness of the variation application; and the period for which the injunction would otherwise preserve the status quo.
5. The urgent use of a stop notice and section 187B procedure was not abusive. The occupants were initially unidentified, had been unwilling to provide names, and the evidence showed that the stop notice and injunction had been brought to their attention. The limited information available when the injunction was obtained materially restricted the extent of any initial welfare assessment.
6. The defendants’ occupation was deliberate and calculated to establish a traveller site before enforcement could prevent it. They continued works and remained in occupation after learning of the restrictions. Although their Article 8 rights and the children’s welfare were engaged, the evidence of medical, educational and housing hardship was limited, alternative accommodation had been offered, and the absence of a suitable alternative site carried little weight in the overall balance.
7. Those matters outweighed the disruption caused by removal. Continued operation of the injunction was necessary and proportionate. The defendants were required to leave, but failure to remove hardstanding and fencing alone would not aggravate sentence pending resolution of the planning appeal.