Braintree District Council v Secretary of State for the Home Department & Anor

Section 296A of the Town and Country Planning Act 1990 imposes a broad statutory bar on enforcement steps concerning Crown land without the appropriate authority’s consent. The bar covers both the bringing of proceedings and the making of an application for an injunction under section 187B. It is not confined to steps taken after an enforcement notice or order has been issued.

Accordingly, a local planning authority cannot use Part 8 proceedings or a section 187B injunction to restrain development on Crown land without the required consent. The Court of Appeal declined to determine the separate permitted development issue because it was unnecessary to the appeal.

Braintree District Council challenged the proposed use of part of RAF Wethersfield, Crown land, to accommodate asylum seekers. It brought Part 8 proceedings and applied under section 187B of the Town and Country Planning Act 1990 for an injunction restraining an apprehended breach of planning control.

Waksman J. struck out the claim under CPR rule 3.4 because the council lacked the consent required by section 296A(2). He also concluded, obiter, that the proposal fell within Class Q permitted development rights. The appeal concerned whether the High Court had jurisdiction and, if so, whether Class Q applied. The jurisdiction issue was whether the proceedings and injunction application were enforcement steps in relation to Crown land.

The appeal was dismissed. The Court of Appeal upheld the strike-out of the council’s Part 8 claim and its application for an injunction.

1. Statutory interpretation. The court applied the ordinary principles of statutory interpretation, having regard to statutory purpose and context. Those principles apply in the same way to planning legislation, as explained in Tidal Lagoon (Swansea Bay Plc) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 1579 and Project Blue Ltd. v Commissioners for Her Majesty’s Revenue and Customs [2018] UKSC 30.
2. Meaning of enforcement step. Section 296A(4) of the Town and Country Planning Act 1990 deliberately defines a step taken for the purposes of enforcement broadly. It covers anything done in connection with enforcing anything required to be done or prohibited by or under the Act. The language is not confined to requirements contained in an existing notice or order. The definition is amplified by section 296A(5), which includes bringing proceedings and making an application, and limited by section 296A(6).
3. Application to the proceedings. Section 187B is an enforcement provision in Part VII. An application under it is a step taken for the purposes of enforcing the requirement in section 57(1) to obtain planning permission before carrying out development. It also falls within the alternative conception of enforcing the prohibition on carrying out development without the required permission under section 171A(1). The Part 8 claim and injunction application therefore fell within section 296A(4) and (5).
4. Effect of the consent requirement. Because the site was Crown land and the Ministry of Defence had not given the consent required by section 296A(2), the court had no jurisdiction to entertain the proceedings. The judge was right to strike them out.
5. Class Q. The court declined to determine whether the proposed use fell within Class Q. The jurisdiction issue disposed of the appeal, and any conclusion on Class Q would have been obiter and might have constrained another judge of coordinate jurisdiction. The respondent’s notice and the issue concerning the Speaker’s Counsel were consequently unnecessary.

• Court of Appeal (Civil Division): In [2023] EWCA Civ 727, the appeal was dismissed and the High Court’s strike-out was upheld.
• High Court of Justice, King’s Bench Division: Waksman J. in [2023] EWHC 1076 (KB) struck out the Part 8 claim and section 187B application under CPR rule 3.4, holding that section 296A required the appropriate authority’s consent. His conclusion on Class Q was obiter.