Wealden District Council v John David Devall & Anor

An injunction under Town and Country Planning Act 1990, s 187B is an original and discretionary remedy. The court must decide whether relief is just, convenient and proportionate, having regard to the planning breach, the public interest in enforcement, the effectiveness of ordinary enforcement measures, environmental harm and the personal and Convention rights of those affected.

Where development has been deliberately undertaken despite advice that planning permission is required, and the evidence shows an apprehended residential use which ordinary enforcement would not effectively prevent, a final injunction may be granted. Relief should be no wider or longer than necessary. Lawful use of the land should remain possible.

Wealden District Council, the local planning authority, sought a final injunction against the owners of land at Horney Common. The application concerned the rebuilding of a barn, the laying of hardstanding and associated works which the Council alleged constituted development without planning permission and preparation for residential occupation.

The defendants did not attend the final hearing or file evidence in evidential form, although the court was satisfied that they had notice and sufficient opportunity to participate. The central issues were whether the works amounted to breaches of planning control and whether a final injunction, including mandatory removal measures and a time-limited restraint, was just, necessary and proportionate.

1. Disposition. The claim succeeded. A final injunction was granted with prohibitory and mandatory elements. The restraint was limited to two years, and the defendants were allowed three months to comply with the mandatory requirements.
2. Development and breach. Rebuilding the barn constituted building operations and development under ss 55(1) and 55(1A) of the Town and Country Planning Act 1990. The works materially altered the external appearance of the building and therefore fell outside the exclusion in s 55(2)(a). Hardstanding laid by the defendants, including tarmac planings, was operational development under s 55 and was carried out in breach of planning control. The alleged agricultural-use exception did not apply.
3. Statutory jurisdiction. Sections 187B(1) and (2) confer an original, discretionary jurisdiction. The local planning authority must consider it necessary or expedient to restrain the breach by injunction, but the court independently decides whether relief is appropriate. The court does not review the planning merits, but must assess all the circumstances.
4. Proportionality. Applying the principles in South Buckinghamshire District Council v Porter & Others [2003] 2 AC 558, as discussed in Ipswich Borough Council v Fairview Hotels (Ipswich) Ltd [2022] EWHC 2868 (KB) and Vale of White Horse District Council v Winter [2022] EWHC 2313 (QB), the court considered the degree and flagrancy of the breach, planning harm, the public interest, the likely effectiveness of ordinary enforcement, hardship and Convention rights.
5. The works were deliberate and flagrant. The location was environmentally sensitive, the works followed advice that planning permission was required, and the combination of hardstanding, a rebuilt barn, a letter box, garden features and arrangements for a domestic water supply supported the inference of preparation for residential occupation. An enforcement notice would not adequately remove the existing works or prevent rapid occupation.
6. The defendants’ rights under article 8 of the ECHR and article 1 of Protocol 1 were engaged, but the interference was minimal and justified by the public interest in enforcing planning control. The injunction did not prevent lawful recreational or other lawful use of the land. A two-year restraint was proportionate because removal of the works would reduce the risk of residential occupation.
7. Costs followed the general rule under CPR r 44.2(2)(a), but were ordered to be assessed rather than summarily assessed.

First-instance decision. No appellate history was stated in the judgment.