Basildon Borough Council v Eliza Sanders & Ors

On an application under Town and Country Planning Act 1990, s 187B, the court has an original discretion whether to grant an injunction. It must assess for itself whether relief is just and proportionate, while leaving planning merits to the planning process except so far as a broad assessment of environmental harm is required. The assessment must include the impact on private and family life, the best interests and welfare of affected children, hardship, alternative accommodation, the planning history and the seriousness of the breach. Where relevant personal evidence emerges after interim relief, the authority should reassess welfare and proportionality. A pending planning appeal and the absence of alternative sites may justify continuing a protective interim order while refusing a final injunction.

The claimant local planning authority sought a final injunction against named defendants and persons unknown in relation to land in the Green Belt. The alleged breaches comprised hardstanding, fencing and the intended stationing of caravans for residential occupation. An interim injunction had stopped further works and permitted the fifth and seventh defendants, who occupied caravans with their children, to remain pending trial.

By the final hearing, the planning application had been refused, but appeals against that refusal and an enforcement notice remained pending. The central issues were whether a final injunction should be granted, whether the claimant had properly assessed the occupants’ personal and welfare circumstances, and whether the interim order should continue pending the planning appeals.

1. Section 187B jurisdiction. The jurisdiction under Town and Country Planning Act 1990, s 187B, is original. The court must decide whether an injunction is appropriate and must not grant relief automatically merely because a planning authority seeks it. Planning merits remain primarily for the planning process, although the court may form a broad view of environmental harm and urgency.
2. Proportionality. The court applied the guidance in South Bucks District Council v Porter (No 1) [2003] 2 AC 558. Relevant matters included the seriousness and flagrancy of the breach, planning history, the authority’s consideration of material factors, hardship, private and family life under article 8, the availability of suitable alternative sites, health and education, and the consequences of removal. The court must be prepared to contemplate imprisonment for breach before granting coercive relief.
3. Children and welfare. The best interests of affected children are a primary consideration within the article 8 proportionality assessment, but are not automatically paramount. The court applied the approach summarised in R (SC) v Secretary of State for Work and Pensions [2022] AC 223, R (Devonhurst Investments Ltd) v Luton BC [2023] EWHC 978 (Admin) and Zoumbas v Secretary of State for the Home Department [2013] UKSC 74. Once detailed evidence disclosed possible occupation by children, the claimant should have undertaken welfare assessments and reassessed proportionality.
4. Outcome. The works were serious and the interim injunction had achieved its purpose. However, the planning status was unresolved, no alternative sites were available, and the claimant had failed to update its welfare and proportionality assessment. The court therefore declined to grant the requested final injunction but continued the Second Order against all defendants and persons unknown pending resolution of the planning appeal process. Costs were in the case, subject to separate arrangements for the parties represented at trial.

Not an appeal. The judgment records that an interim injunction was granted by Sweeting J on 29 May 2024 and continued by Mr Simon Tinkler, sitting as a Deputy High Court Judge, on 4 June 2024. The present court continued that order pending the planning appeal process.