Welwyn Hatfield Borough Council v Gurinder Singh & Anor

A local planning authority may obtain an interim injunction under the Town and Country Planning Act 1990 to restrain apprehended offences involving protected trees and breaches of planning control. The court applies the American Cyanamid principles. A serious question to be tried is established where the evidence shows a compelling risk of continuing unlawful work and other enforcement measures are ineffective. The authority cannot adequately be compensated in damages and need not give a cross-undertaking in damages. The balance of convenience may favour preserving the existing state of the land where this is necessary and proportionate to maintain planning control in the public interest.

The local planning authority applied urgently and without notice for an interim injunction against the owners of land adjoining Welwyn Footpath 058. Protected trees within the land were subject to a tree preservation order under the Town and Country Planning Act 1990. The authority alleged that one protected tree had been felled, another damaged, and further unauthorised work was threatened.

The respondents did not attend or participate. The issues were whether the application could proceed without notice and whether an interim injunction should restrain apprehended offences under section 210 and breaches of planning control.

1. The court was entitled to proceed without notice. The risk that notice would accelerate the unauthorised work constituted good reasons under CPR 25.3(1). Secrecy was essential for the purposes of CPR PD 25A, para 4.3(3), and the exceptional urgency test in CPR PD 23A, para 3(1) was satisfied.
2. The application fell within section 214A of the Town and Country Planning Act 1990, with section 187B providing a related power concerning breaches of planning control. The court noted the original jurisdiction recognised in South Bucks District Council v Porter [2003] UKHL 558; [2003] 2 AC 558.
3. The principled approach in American Cyanamid Co. v Ethicon Limited [1975] AC 396 applied. There was a serious question to be tried because the evidence compellingly demonstrated a continuing risk of offences under section 210 and further breaches of planning control. Existing statutory enforcement measures had proved, and were likely to remain, ineffective.
4. Following Kirklees MBC v Wickes [1993] AC 227, the authority could not adequately be compensated in damages and was not required to give an undertaking in damages.
5. The interference with the respondents’ rights under Article 1 of Protocol 1 to the European Convention on Human Rights was necessary and proportionate. The balance of convenience favoured preserving the current state of the land and maintaining proper planning control in the public interest.
6. The interim injunction was granted in the terms sought. Service by affixing the order to the land was deemed good and sufficient, subject to the authority’s undertaking to attempt personal service. The matter was listed for an on-notice return hearing on 27 October 2023.