Ashford Borough Council v Mark Homewood & Anor

An undertaking given in proceedings for planning injunctions is subject to continuing judicial supervision. On an application to vary or discharge it, the court must reassess whether there remains a real and imminent risk of serious harm, taking account of material changes and the availability of adequate alternative remedies. An undertaking is not a proprietary benefit and should not outlast or outflank the circumstances that justified it.

Planning permission may discharge an undertaking where its terms cover the permitted development, but permission confined to part of the land does not automatically discharge wider undertakings concerning the land as a whole. The court may discharge undertakings where the original risk has materially reduced, there has been no breach, effective statutory enforcement powers remain available, and continued exposure to committal proceedings would be unjust.

The Council obtained interim injunctive relief in 2021 under section 187B of the Town and Country Planning Act 1990 in relation to alleged unauthorised development at land owned by the defendants. The injunction was replaced by undertakings in a consent order. The defendants later obtained time-limited planning permission for a mobile home and permission for associated development on part of the land.

The defendants applied to be released from the undertakings. They alleged material non-disclosure at the original without-notice hearing, automatic discharge by the planning permission, failure by the Council to review the need for the undertakings, and unfairness or lack of necessity in their continued operation. The central issues were whether any undertaking had already been discharged and whether the remaining undertakings should be discharged as a matter of justice and convenience.

1. Full and frank disclosure. The Council had discharged its duty at the without-notice hearing. The four documents relied on by the defendants were, at most, peripheral. The material evidence, including the defendants’ planning consultant’s email setting out their position, was before the judge and did not mislead the court in any material respect.
2. Construction of the undertakings. The expression “planning permission” in the consent order was apt to include temporary as well as permanent permission. The planning permission therefore discharged the first undertaking, which concerned the particular mobile home. It did not discharge the other four undertakings, whose scope extended to the whole of the defined land, because the permission related only to part of the land and specified development.
3. Continuing supervision and material change. On reviewing injunctive relief, the court must consider afresh whether the original thresholds remain satisfied. The Inspector’s permission was a material change because it authorised the development that had prompted the proceedings, subject to conditions and, for the mobile home, a three-year period.
4. Discretion and proportionality. The absence of any alleged breach of the undertakings, the Council’s effective planning-enforcement powers, and the Council’s unreasonable delay in responding to the defendants’ request were substantial factors favouring discharge. The admitted delay in installing an electric vehicle charging point and the additional roof-lights on the barn did not outweigh those factors. The competing allegations about other planning-condition breaches could not be resolved on the evidence, but the Council retained statutory enforcement remedies.
5. The application was allowed. The undertakings were discharged. Consequential matters were reserved for written determination or, if necessary, a short hearing.