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

The Court of Appeal dismissed the council's appeal against Waksman J.'s order striking out its application for an injunction under section 187B of the Town and Country Planning Act 1990. The court held that section 296A of the 1990 Act bars a local planning authority from taking "any step for the purposes of enforcement" in relation to Crown land unless the consent of the appropriate authority (here the Ministry of Defence) has been obtained; an application for an injunction under section 187B and the Part 8 proceedings were "steps" within that definition because they amounted to bringing proceedings and making an application to enforce the statutory requirement for planning permission (section 57) or to restrain what is prohibited by the Act.

The court therefore concluded that the High Court had no jurisdiction to entertain the council's application and struck it out. Because the decision on jurisdiction was determinative, the Court of Appeal declined to decide the separate "Class Q" issue (whether the proposed development fell within permitted development rights under Class Q, Part 19 of Schedule 2 to the GPDO), which had been considered obiter by the judge below.

This was an appeal from the High Court (Waksman J., [2023] EWHC 1076 (KB)) by Braintree District Council against the striking out of its Part 8 claim and application for an injunction under section 187B of the Town and Country Planning Act 1990. The council sought injunctive relief to restrain the Home Secretary from carrying out a proposed change of use and development on Crown land at RAF Wethersfield to accommodate asylum seekers. The Secretary of State for Defence is the Crown land owner and the Home Secretary proposed to rely on permitted development rights (Class Q, Part 19 GPDO). The council alleged an apprehended breach of planning control and sought an injunction to prevent residential occupation of the land.

There were two principal issues before the Court of Appeal: (i) jurisdiction — whether section 296A of the 1990 Act precludes a local planning authority from taking enforcement steps (including bringing proceedings and applying for an injunction under section 187B) in relation to Crown land without the consent of the appropriate authority; and (ii) the Class Q point — whether the Home Secretary’s proposed development fell within permitted development under Class Q, Part 19 of Schedule 2 to the GPDO. There were three interveners with written submissions: West Lindsey District Council, an adjacent resident (Mr Clarke-Holland) and Rother District Council.

The Court examined the statutory language and legislative history. It held that section 296A(2) is mandatory and that the wide definition of a "step taken for the purposes of enforcement" in section 296A(4), read with the inclusive examples in section 296A(5) (including "bringing proceedings" and "the making of an application"), plainly captures an application for an injunction under section 187B and the Part 8 claim. The council’s application was made in respect of Crown land and the appropriate authority’s consent had not been given. On that basis the court concluded the High Court lacked jurisdiction and the proceedings were properly struck out. The court therefore dismissed the appeal.

The Court declined to decide the Class Q issue because its conclusion on jurisdiction was dispositive and any view on Class Q would be obiter and potentially prejudicial to the separate first-instance judicial review proceedings. The judgment records the statutory provisions considered (notably sections 57, 171A, 187B and 296A of the 1990 Act, and Class Q, Part 19 of Schedule 2 to the GPDO) and explains why the court preferred a straightforward statutory construction approach to section 296A.

Appeal dismissed. The Court of Appeal held that section 296A(2) of the Town and Country Planning Act 1990 bars a local planning authority from taking "any step for the purposes of enforcement" in relation to Crown land without the consent of the appropriate authority; an application under section 187B and the Part 8 proceedings were "steps" within that meaning (bringing proceedings and making an application) and therefore the court had no jurisdiction to entertain the council's injunction claim. The court declined to decide the separate Class Q permitted development issue as it was unnecessary and would be obiter.

Appeal from the High Court of Justice (King's Bench Division), Waksman J., [2023] EWHC 1076 (KB). Permission to appeal was granted under CPR r.52.6(1)(b). The Court of Appeal heard the appeal with written interventions from West Lindsey District Council, Mr Gabriel Clarke-Holland and Rother District Council and dismissed the appeal on 23 June 2023.