Planning and Environment

Injunctions - Human Rights

Section 187B TCPA 1990 allows an LA [local authority] to apply for an injunction to restrain an actual or apprehended breach of planning control. But, how does that sit with Human Rights Act 1998 (e.g. right to respect for private and family life)?

The Court of Appeal has given guidance on this point which overrules the previous authority (Hambleton [1995]). In particular, the injunction must be 'proportionate' - it must be 'appropriate and necessary for the attainment of the public-interest objective sought' whilst at the same time not imposing 'an excessive burden on the individual whose private interests are at stake'. In practice, this means:

• the judge is not entitled to reach an independent view of the planning merits of the case but must take the actual or anticipated breach of planning control as a given;
• the judge should not grant an injunction unless he is prepared to contemplate committing the defendant to prison if there is a breach of that injunction. This means the judge must also consider questions of hardship for the defendant that would result from granting the injunction;
• the court will want to look at the degree in flagrancy of the breach of planning control, as well as the enforcement history, and any degree of urgency. It will also want to see whether the LA adopted the correct approach of 'proportionality' when it reached its decision.

The end result of this is that it will be far harder for LAs to obtain injunctions against residential occupiers. Indeed, an injunction to pre-empt an anticipated breach is more likely to be successful (i.e. if the LA can obtain the injunction before the occupation begins then so much the better). Moreover, although this decision was in the context of gypsies on Green Belt land, the principles will apply in all residential cases. As a note in the Gazette puts it, 'henceforth LA's are unlikely to get an injunction unless they can show a history of persistent failure to observe the planning process, coupled with evidence of actual damage to the environment which, on balance, outweighs the hardship caused to the gypsies or the particular individual concerned'. See note on South Bucks DC v Porter [2001] in [2001] LSG 25 October 37; [2001] EG 27 October 180.

"The Practical Lawyer" December 2001/January 2002