Test Valley Borough Council & Anor v Albert Bowers & Ors

Injunctions restraining breaches of planning control are granted under a broad, original and discretionary jurisdiction. The court must consider all the circumstances and decide whether relief is just and proportionate. It must not substitute its own planning judgment for that of the local planning authority, but must weigh matters including hardship, the need to enforce planning control, planning history, the flagrancy of breaches, environmental damage and the availability of alternatives.

Against newcomers who are persons unknown, final injunctive relief requires a compelling need, exhaustion or inadequacy of other remedies, full disclosure, procedural safeguards, and strict territorial and temporal limits. A power of arrest may be attached where the statutory conditions are met, including a significant risk of harm.

The claimants, a borough council and a county council, sought final injunctions concerning unauthorised encampments and the deposit of controlled waste on specified land. The claim was brought under Local Government Act 1972, section 222, and relied principally on section 187B of the Town and Country Planning Act 1990.

An interim injunction had previously been granted against named defendants and persons unknown. The claimants relied on extensive evidence of repeated encampments, planning breaches, waste, nuisance, damage and ineffective alternative enforcement measures. No defendant or intervenor appeared at trial.

The issues were whether final injunctions should be granted against identified defendants and newcomers, whether the orders should include a power of arrest, and whether a cross-undertaking in damages was required.

1. Named defendants. The court found the alleged conduct and breaches of planning control proved. Under section 187B of the Town and Country Planning Act 1990, the jurisdiction was original and discretionary. Applying the principles in South Buckinghamshire District Council v Porter [2003] 2 AC 558, the court considered all the circumstances and whether relief was just and proportionate. The planning merits and the local authority’s planning judgment were matters for the authority, not matters for the court to determine afresh.
2. The relevant considerations included hardship to the defendants and their families, the need to enforce planning control, the planning history, the flagrancy of the breaches, urgency, length of occupation, environmental damage and the local authority’s decision to enforce. The evidence established repeated and serious unlawful activity over a geographically limited area. No specific hardship had been advanced for the defendants. Final injunctions were therefore just and equitable.
3. Persons unknown and newcomers. Following Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47, the court required a compelling need for protection of civil rights, consideration and exhaustion of reasonable alternatives, compliance with the duty of full and frank disclosure, and a conclusion that the relief was just and convenient. The claimants had considered stopping places, a negotiated stopping and temporary transit policy, statutory enforcement powers and byelaws. Those alternatives were ineffective, cumbersome, costly or inadequate. The evidence showed a real risk of recurrence without an injunction.
4. The orders were confined to the identified land, were subject to strict temporal limits, were to be actively publicised and included generous liberty to apply to vary or discharge. The named-defendant injunctions would last five years; the newcomers’ injunction would last one year, subject to renewal.
5. No cross-undertaking in damages was required. The claimants were public authorities enforcing public rights, the relief was final, and the orders could be varied or discharged before substantial loss arose.
6. Under section 27 of the Police and Justice Act 2006, the conduct was capable of causing nuisance or annoyance, involved or threatened violence, and created a significant risk of harm. A power of arrest was therefore attached. Final relief was granted in the terms to be settled with counsel.

The judgment records that an interim injunction was granted in 2020 against named defendants and persons unknown. The power of arrest was subsequently discharged as against persons unknown. This judgment granted final relief.