Waverley Borough Council v Anthony Martin Gray & Ors

Interim planning injunctions should ordinarily continue where there is a serious issue to be tried, a strong prima facie case, and the balance of convenience and justice favours preserving the existing position. The court must assess proportionality in all the circumstances, including the defendants’ private and family life, property rights, personal circumstances, children’s welfare, equality duties and the public interest in effective planning control.

A pending planning appeal does not necessarily require postponement of a mandatory final injunction, but that issue may properly be left to the trial judge where a later trial will determine the evidence and merits. Personal circumstances should not be used to outflank existing court orders, particularly where occupation and development continued in breach of those orders.

Waverley Borough Council sought final prohibitory and mandatory injunctions under Town and Country Planning Act 1990, s 187B, and Local Government Act 1972, s 222, concerning alleged unauthorised caravan use and operational development.

Interim injunctions had previously been continued against several defendants. Thomas Doherty and Simon Doherty sought to preserve the position pending planning appeals. Barney Doherty sought suspension or variation of the injunction to permit continued residential occupation by his family. The court had to decide whether the planning appeals should be exhausted before final mandatory relief and what interim order was appropriate pending trial.

1. Applications by D13 and D14. The question whether pending planning appeals should be exhausted before a final mandatory injunction was granted was left to the trial judge. The later trial would ventilate the evidence and merits, and deciding the issue prematurely risked piecemeal litigation. Their undertakings therefore continued in full force.
2. Applicable principles. Under s 187B of the Town and Country Planning Act 1990, the court exercises an original jurisdiction and must consider all the circumstances. The question is whether relief is just and proportionate. The court must consider the impact on defendants’ homes, Article 8 rights and property rights, while recognising the local authority’s democratic responsibility for planning control. The best interests of affected children and Equality Act duties are also relevant.
3. At the interim stage, the court applied the familiar American Cyanamid approach. The relevant considerations were whether there was a serious issue to be tried, whether the claimant had a strong prima facie case, the balance of convenience and justice, the public interest, and whether the injunction would hold the ring pending trial.
4. D7’s application. The evidence concerning the family’s domestic arrangements and medical needs was materially uncertain and inconsistent. Further medical evidence and a full witness statement were required. The existing order properly preserved the position pending final determination. The claimant’s case concerned serious and flagrant breaches of planning control, including occupation and development in the face of court orders. Damages were not an adequate remedy, and the balance favoured continuing the injunction without variation or suspension.
5. The application to suspend or vary the injunction was refused. Costs for D7, D13 and D14 were costs in the case.

The judgment concerned interim applications in ongoing High Court proceedings. Earlier interim injunctions had been continued by orders dated 14 September 2021 and 11 November 2022. The present court continued the order against D7 and directed that the issue concerning D13 and D14’s pending planning appeals be dealt with at the later trial.