Brentwood Borough Council v Thursting & Ors

An injunction under Town and Country Planning Act 1990, section 187B, may restrain preparatory or anticipatory steps which are not themselves breaches of planning control, where that is necessary to restrain an actual or apprehended breach. The court exercises an original discretionary jurisdiction and must decide both whether relief is appropriate and what terms are suitable. At the interim stage, the court considers whether there is a serious issue to be tried and where the balance of convenience and justice lies, weighing the public interest against the defendant’s private interests. An order may properly contain clear, concrete prohibitions extending beyond the statutory obligations themselves, including against persons unknown, where narrower relief would be ineffective and the order remains proportionate.

The claimant local planning authority sought continuation of an interim injunction granted without notice by Cutts J on 17 July 2020. The injunction restrained the first defendant, the landowner, and persons unknown from carrying out development, changing the use of greenbelt land, bringing caravans or related materials onto it, installing utilities, or undertaking associated works without lawful planning consent. The first defendant argued that he was pursuing a lawful holiday caravan site and sought discharge or substantial narrowing of the order. The central issues were whether there was a serious issue to be tried and whether the breadth and duration of the interim injunction were justified.

1. Continuation of injunction. The order made by Cutts J was continued in substance until further order. The claimant had shown a serious issue to be tried and, on the interim evidence, a strong prima facie case. The balance of convenience and justice, having regard to the public interest, decisively favoured continuation.
2. Nature of the jurisdiction. Section 187B of the Town and Country Planning Act 1990 confers an original, discretionary jurisdiction. The court decides independently whether an injunction should be granted and, if so, what terms are appropriate. It does not conduct a supervisory review of the planning authority’s decision to seek relief. The approach in South Bucks District Council v Porter [2003] UKHL 26; [2003] 2 AC 558 was applied.
3. Scope of relief. Section 187B permits an order directed to restraining an actual or apprehended breach, including anticipatory or preparatory steps which are not intrinsically breaches. The statutory power is not confined to reproducing existing planning obligations backed by contempt sanctions. The order must instead identify prohibited conduct clearly and concretely.
4. Interim assessment. The court applied the serious-issue-to-be-tried and balance-of-convenience-and-justice approach. Relevant considerations included the apparent resolve to develop the land for occupied caravans, the installation of a septic tank without planning permission, the absence of the certificate relied upon for a holiday caravan site, the lack of transparency, and evidence of further works. Evidence concerning the first defendant’s father could be considered but was not decisive.
5. Proportionality and safeguards. The broader order was necessary to prevent intermediate steps leading to unlawful development and was sufficiently clear. It was proportionate because the defendants retained liberty to apply to vary or discharge it on evidence. No fixed one-year limit was appropriate while the claim for a final injunction remained unresolved. The first defendant was ordered to pay the claimant’s costs of the return-date hearing; other costs were reserved.

The judgment was a first-instance return-date decision. It continued the interim injunction granted by Cutts J on 17 July 2020 and replaced that order with a substantially similar order.