Surrey Heath Borough Council v The Owner of the Land on the East Side of Mytstrou & Ors

A final injunction under Town and Country Planning Act 1990 section 187B may be granted where the court is satisfied that restraint of an actual or apprehended breach is just and proportionate. The court must not reconsider the planning merits, but must assess the seriousness of the breach, the public interest, environmental or safety risks, personal hardship and the authority’s decision to seek relief.

A separate injunction may restrain occupation or further works which contravene building regulations where the statutory conditions are met, including a likely risk of serious harm. Compliance with an interim injunction does not, by itself, justify refusing final relief.

The claimant local authority sought a final injunction concerning admitted breaches of planning and building control at a residential property. Planning permission authorised an extension to an existing dwelling, but the defendants had created a separate dwelling, omitted an approved link door and erected a prohibited fence. The authority also relied on serious fire-safety defects and a stop notice under the Building Act 1984.

An interim injunction had prohibited occupation and further construction. The property was unoccupied by the date of the final hearing, but the defendants had not remedied the breaches. The central issues were whether final injunctive relief was available and whether it was just and proportionate in all the circumstances.

1. Final injunction granted. The admitted breaches of planning and building control were serious and flagrant. The injunction was granted until the breaches were remedied.
2. Under section 187B of the Town and Country Planning Act 1990, the jurisdiction is original rather than supervisory. The court must exercise its discretion judicially and decide whether relief is just and proportionate against the particular defendant. It must accept the planning status and planning merits determined within the planning process, but may assess matters outside planning judgment, including hardship, environmental damage, urgency, public interest and proportionality.
3. The creation of a separate dwelling amounted to a material change of use requiring planning permission. The development was within 400 metres of the Thames Basin Heath Special Protection Area, creating a significant environmental risk. The continuing possibility of occupation, the defendants’ previous disregard of the stop notice and the absence of any remedial works supported final relief.
4. The building-control injunction was independently supported by section 36(6) of the Building Act 1984. The absence of an appropriate means of escape and other fire-safety defects created a very real risk of death or serious injury. The statutory risk of serious harm condition in section 35C was engaged because use of the building without remedying the contravention was likely to present serious harm.
5. The property was not the defendants’ home and no significant personal hardship or Article 8 interest had been advanced. The fact that occupation had ceased following the interim injunction did not remove the need for final relief. The defendants remained free to make a further planning application to rectify the breaches.