Hart District Council v Helen Freeman & Anor.

An injunction restraining a breach of planning control should be varied only where there has been a material change of circumstances or another good reason for review. If that threshold is met, the court must consider whether the injunction remains just, convenient and proportionate.

The court must not use the variation application as an accelerated appeal against an enforcement notice or substitute its own planning judgment for that of the planning authorities or inspector. Personal hardship, the welfare of a child and an asserted agricultural need must be supported by evidence and weighed against the public interest in consistent enforcement of planning law.

The defendants applied to vary an injunction prohibiting them from occupying agricultural land in a caravan without planning permission. They relied on alleged impending homelessness, the needs of their pig-breeding business and their pending appeal against an enforcement notice.

The injunction had previously been granted and continued by judges of the High Court. The central issues were whether circumstances had materially changed since the order and, if so, whether the injunction should be varied pending the planning appeal.

1. Application dismissed. The defendants had not established a material change of circumstances since the injunction was made.
2. The court adopted the approach that an existing injunction should be varied only where there has been a change of circumstances or other good reason for review. If that threshold is passed, the court must determine whether the injunction remains just and convenient, or proportionate, in its original form.
3. Under section 187 B of the Town and Country Planning Act 1990, the court’s function is to restrain an actual or apprehended breach of planning control. Following South Bucks DC v Porter [2003] UKHL 26, the court must not determine planning policy or substitute its judgment for that of the local planning authority, the Secretary of State or the planning inspector. A pending appeal may be relevant, but its mere existence does not establish a material change of circumstances.
4. The evidence did not show imminent homelessness. Rental accommodation appeared affordable, and the alleged difficulty of accommodating the defendants’ dogs did not justify residential occupation in breach of planning control. The asserted need for continuous residence on the land was also uncertain and was a matter for the planning appeal.
5. Even if the court reconsidered the matter under the American Cyanamid principles [1975] AC 396, the balance of convenience favoured the claimant. The public interest in fair and consistent application of planning law outweighed the defendants’ personal and business circumstances. The child’s best interests were a primary consideration, but the evidence did not show that they required occupation of the land or variation of the order.
6. The injunction remained just, convenient and proportionate in its existing terms.

This was a first-instance application to vary an existing High Court injunction. An interim injunction had previously been made by Yip J and was later extended by Mr Anthony Metzer KC sitting as a Deputy Judge of the High Court.