Epping Forest District Council v Paul Rudolph Halama

An injunction under Town and Country Planning Act 1990, section 187B requires an actual or apprehended breach of planning control. The court must identify the permission actually granted, without reconsidering the planning merits.

The court has an original and discretionary jurisdiction. It must independently decide whether an injunction is necessary, expedient and commensurate, balancing the public interest in enforcing planning control against personal circumstances and the practical burden of compliance.

A local planning authority need not exhaust other enforcement methods, although their availability and likely effectiveness are relevant. A defendant relying on inability to comply because of financial means must provide evidence. Mandatory terms must be sufficiently precise and ordinarily should be limited to works with which the defendant can reasonably comply.

The claimant local planning authority sought a mandatory planning injunction requiring the defendant to comply with planning permission and an enforcement notice concerning an unauthorised domestic extension.

The defendant accepted that a continuing breach of planning control existed, but argued that the injunction should be refused because of his financial and health circumstances. The authority had previously used an enforcement notice and prosecution, and the defendant had undertaken before the Magistrates’ Court to carry out the required works.

The central issues were whether the authority’s decision to seek an injunction was unlawful, whether other enforcement measures had to be exhausted, and whether an injunction was necessary, expedient and proportionate in the circumstances.

1. Disposition. The injunction was granted. The defendant was required to move the dormer window to the permitted position and reduce the rear extension to the permitted depth. Six months were allowed for compliance.
2. Threshold and scope. Section 187B requires an actual or apprehended breach of planning control. The court must determine what permission was granted and whether the works comply with it. It must not reconsider the merits of planning permission, an enforcement appeal or the planning judgment itself.
3. Challenge to the authority. The authority’s decision to seek an injunction may be challenged on conventional public-law grounds, including procedural unfairness, irrationality, failure to consider relevant matters and breach of the public sector equality duty. The court’s review concerns the decision to seek an injunction, not the underlying planning decision.
4. Enforcement alternatives. The authority need not first use every other enforcement power. Nevertheless, the availability and likely effectiveness of alternative measures are relevant to whether an injunction is just and convenient. Here, the enforcement notice, prosecution, undertaking and consideration of self-help showed that other steps had failed or were unlikely to work.
5. Necessity and proportionality. The court exercises an original, judicial discretion. It must weigh the realistic options, including the public interest in ending a persistent breach, environmental and neighbouring effects, the defendant’s personal circumstances, and the costs and feasibility of compliance. The breach had continued for five years and the defendant had not evidenced his alleged inability to pay.
6. Compliance and sanction. A defendant’s assertion that an injunction cannot be complied with because of lack of funds requires evidence. The court should not make an order which the defendant cannot reasonably obey, but financial difficulty did not justify refusal here. The claimant was awarded its reasonable and proportionate costs of £23,969, payable within 12 months.