London Borough of Hackney v Shiva Ltd & Ors

A planning authority may seek an injunction under Town and Country Planning Act 1990, s 187B, whether or not it has used other enforcement powers. On an interim application, the court applies the American Cyanamid principles in the planning context. An installation may be capable of amounting to a material change of use, but the court should not determine that planning question finally at the interim stage. The balance of convenience requires consideration of urgency, the adequacy of damages, proportionality, the public interest and the effect of the order on the parties. Relief must be confined to the imminent breach sufficiently evidenced. A prohibition may be continued and mandatory removal ordered where that is just and proportionate pending the planning process.

This was the return hearing of an interim injunction granted by Johnson J under s 187B of the Town and Country Planning Act 1990. The claimant local planning authority sought continuation of prohibitory relief against Shiva Ltd, Antepavilion Ltd and Barker Shorten Architects LLP, together with mandatory removal of four model sharks installed on pontoons in the Regent’s Canal. The defendants argued that the installation was within the Site’s established artistic use, that no serious issue arose, and that the injunction was disproportionate. The central issues were whether the installation was capable of constituting a material change of use requiring planning permission and whether continuation and extension of the injunction was justified.

1. Serious issue. The court held that there was a serious issue to be tried as to whether the size, scope and canal location of the Sharks! installation took it beyond an ancillary artistic use associated with the Site’s permitted B1 use. The installation was capable of constituting a change of use for the purposes of s 55 of the Town and Country Planning Act 1990. The court was not required to decide that planning issue finally. Thames Heliports Plc v London Borough of Tower Hamlets supported that conclusion.
2. Interim principles. The principles in American Cyanamid v Ethicon applied, adapted to the planning context. The court considered whether the claimant had acted expeditiously, whether damages were adequate, whether the relief was just and proportionate, and other factors relevant to the balance of convenience. It also had regard to the guidance in South Bucks District Council v Porter.
3. Balance and proportionality. Damages were inadequate to protect the public interest in effective enforcement of planning law. Although the defendants had incurred significant costs and suffered intangible detriment, continuation of prohibitory relief caused no substantial additional cost. The claimant’s planning assessments concerning residential amenity, the conservation area and policy conflicts were matters for the local planning authority, not for final determination on this application.
4. Scope and order. It was just and proportionate to continue limited prohibitory relief and to require removal of the four installed sharks. The original wide prohibition and relief against unknown persons lacked a sufficient evidential basis. The proposed order therefore confined the prohibition to the Sharks! installation until planning consent, a successful appeal, or further order. The defendants’ Article 10 rights were not infringed because they remained free to express themselves subject to compliance with the interim order pending resolution of the planning issues.

The judgment was a first-instance return hearing. It reviewed an interim injunction granted by Johnson J on 20 August 2020 under s 187B of the Town and Country Planning Act 1990. The court proposed to discharge that order and replace it with limited relief, subject to further submissions on the precise form and scope of the order.