Basildon District Council v Anderson & Ors

Applications for planning-control injunctions are determined by the court exercising an original, not supervisory, jurisdiction. The court must consider all the circumstances, without forming its own view of the planning merits. Relief is granted only where it is just and proportionate, having regard to the public interest, the impact on affected persons, and rights under Article 8 and Article 1 of Protocol 1.

At the interim stage, the American Cyanamid approach applies in an adapted form. The court may give separate weight to personal circumstances, including children’s best interests, health, accommodation and equality considerations. The status quo created by deliberate breaches of planning notices or court orders attracts little weight. The flagrancy and likely irreversibility of the breach may be critical.

Basildon District Council sought continuation of two without-notice interim injunctions concerning land in the Metropolitan Green Belt. The first prohibited development and the bringing of caravans or mobile homes onto the land. The second required their removal.

The defendants did not oppose continuation of the first injunction but sought variation of the second to permit continued residence while planning applications were determined. The issues were whether the statutory and interim injunction thresholds were met, how the public planning interest should be balanced against the defendants’ personal circumstances, and whether a power of arrest should be attached.

1. First Order continued. The Council had shown a serious issue to be tried involving deliberate and substantial breaches of planning control. The possibility of a successful planning appeal did not permit the court to assess the planning merits for itself. The court’s task was original and the planning merits were initially for the Council. Damage to the Green Belt and the public interest could not adequately be compensated by damages. The balance of convenience favoured preserving the long-standing position pending trial.
2. Second Order continued. There was a strong prima facie case that the vehicles and structures had been brought onto the land in breach of planning controls, including after enforcement and stop notices and court orders had been served or brought to the defendants’ attention. Continued occupation risked further irreversible development, and the land’s use for residential purposes caused definitional harm to Green Belt policy.
3. The interim test under section 187B of the Town and Country Planning Act 1990 was broadly the American Cyanamid test, but required adjustment for this context. Personal circumstances were considered as a factor in their own right. The court took account of children’s interests, health, overcrowding, alternative accommodation, Article 8 and property rights, while recognising that the defendants’ occupation was legally precarious and that the evidence of resulting prejudice was incomplete.
4. The return-date occupation did not establish the relevant status quo. It followed a rapid and deliberate programme of development undertaken in the face of legal prohibitions. Little weight could therefore be given to preserving that occupation. The flagrancy of the breach and the risk of rewarding an impermissibly obtained advantage strongly favoured continuation.
5. The requirements for an injunction against persons unknown were satisfied. A power of arrest was attached because the alleged nuisance included threats and aggressive conduct, creating a significant risk of harm to Council officers and police officers.

The precise terms of the orders were to be settled after hearing from the parties.