Waverley Borough Council v Anthony Martin Gray & Ors

On an application under Town and Country Planning Act 1990, s 187B, the court must exercise an original and independent discretion. It must decide whether an injunction is just and proportionate in all the circumstances, rather than treating the local planning authority’s application as determinative.

The assessment must include the seriousness of the planning breach, environmental harm, compliance with court orders, alternative sites, personal hardship and the best interests of affected children. A local authority must keep proportionality under review as occupants and their welfare needs become known.

The claimant sought final injunctions against named defendants and persons unknown to restrain unauthorised development and residential occupation of land at Lydia Park, under s 187B of the Town and Country Planning Act 1990.

The land had been developed for caravan occupation in breach of planning control. Several defendants lived there with children and family members having serious medical, educational and care needs. Some had returned after complying with interim orders because they had exhausted other accommodation options. Others moved onto the land when no injunction bound them and pursued planning applications and appeals.

The central issues were whether final relief was necessary and proportionate, whether alternative sites were available, whether the claimant had properly reassessed the defendants’ circumstances, and whether final injunctions should be made against all or only some defendants.

1. Original discretion. The court’s jurisdiction under s 187B of the Town and Country Planning Act 1990 was original, not supervisory. The principles in South Bucks District Council v Porter (No 1) [2003] 2 AC 558 were the starting point. The court had to decide for itself whether injunctive relief was just and proportionate.
2. Relevant factors. The assessment included the degree and flagrancy of the breach, environmental harm, planning history, compliance with court orders, alternative sites, hardship, Article 8 rights and the best interests of children. The court was not required to determine the planning merits afresh, but had to form a broad view of environmental harm and the urgency of ending the breach.
3. Failure to reassess. Once the claimant knew that the land was occupied and was informed of serious medical and welfare needs, it was required to investigate those matters and reassess the proportionality of continuing to pursue coercive relief. The evidence showed no meaningful updated assessment, no adequate consideration of the children’s best interests and no consideration of alternative enforcement tools.
4. Outcome. Final injunctions were refused against D3, D5, D6, D7, D8, D13 and D14, and the interim injunctions against them were discharged. Final negative injunctions were granted against D1, D2, D4, D9, D10 and D11. The injunction against persons unknown was maintained in carefully limited form. The claimant remained free to return to court or use other enforcement powers if circumstances changed.

First-instance decision. The judgment records that an appeal was pending against an earlier order of Wall J refusing relief from sanctions and permission to rely on expert evidence, but that order was not the decision under review.