|Judgments - Wrexham County Borough Council (Appellants) v. Berry (Respondent) South Bucks District Council (Appellants) v. Porter and another (FC) (Respondents) Chichester District Council (Appellants) v. Searle and others (Respondents) (Consolidated Appeals
64. Subsection (1) may be seen as widening the availability of the power to apply in providing that the application may be made whether or not the authority have exercised or are proposing to exercise any of the other powers in Part VII of the Act. That includes in particular the power to issue a planning contravention notice under section 171C, an enforcement notice under section 172, a breach of condition notice under section 187A, and a stop notice under section 183. But that does not mean that the court may not take account of the facts regarding any other remedy which the authority have pursued or the fact that they have not pursued any other remedy. In my view the provisions in subsection (1) all relate to the power in the authority to make the application. They do not cast any direct light on the question of the scope of the discretion given to the court in subsection (2) in the granting or withholding of the remedy. The authority have to decide in accordance with the statute to make the application for an injunction but it is for the court to decide whether or not to grant it and the decision to make the application cannot determine that question.
65. Since the remedy which the court was expressly permitted to grant under subsection (2) was a familiar remedy under English law it might be expected that in dealing with an application for such a remedy the court would adopt the same approach and apply the same tests as it has always done in relation to injunctions. The jurisdiction expressly conferred upon the court by subsection (2) is plainly an original jurisdiction. It is not presented as a means of appeal or of review of the decision to enforce planning control or of the decision to apply for an injunction. On the face of it there seems no reason why the court should not take into account what effect an injunction might have on the personal circumstances of the defendant.
66. Counsel for the appellants laid stress on the final phrase of section 187B(2) "for the purpose of restraining the breach". As a matter of the construction of the subsection this phrase does not seem to me to circumscribe the power of the court so as to make the whole choice of action dependant upon the consideration of whether or not an injunction would serve the purpose of restraining the breach. If that was the intention of the final phrase then it would be hard to imagine any case in which an injunction would not be granted. In every case an injunction operates to restrain the breach. But the court is not compelled to grant an injunction. The subsection only empowers that to be done. I cannot read into the phrase any limitation upon the matters to which the court may have regard in exercising its discretion nor can I find there an indication that the court's role is intended to be a supervisory one. The importance of the phrase to my mind is in directing the court to the purposes which any injunction must be designed to achieve. The injunction which is permitted by the subsection is "such" injunction as will serve the stated purposes. The phrase indicates the kind of injunction, the terms of the order, if any, which may be granted. It does not resolve the question how far the court's discretion may go.
67. The principal theme in the appellants' argument as it seemed to me was the concern that the court should not trespass into areas with which it has no concern. I certainly accept that it is for the planning authorities and not for the courts to see to the preparation and administration of plans and policies for the use of land. What uses should or should not be allowed of lands within the area of the authority, what developments should or should not be permitted to take place upon such lands, are questions for the planning authorities and not for courts of law to resolve. The expression "planning matters" may be too uncertain a use of language in this context. I also find the expression "planning code" which was sometimes used in the argument lacking in precision. The expression "planning merits" seems to me to be more exact, but I would prefer to identify the forbidden ground as comprising matters of "planning judgment".
68. The factors which require to be considered in the making of a planning judgment are potentially many and varied. They include matters relating to the economic and social needs of the locality, the interests of the public and of the individual members of it who live there, the preservation of the environment and the protection of amenity. Lord Hoffmann observed in Tesco Stores Ltd v Secretary of State for the Environment  1 WLR 759, at p 780H:
The courts may consider the legality of a planning judgment but not the merits of the planning decision. In R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  2 WLR 1389 this distinction was recognised and held to be consistent with article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. If the courts were to embark upon a reassessment of matters of planning judgment they would, to use the language of Lord Hoffmann in R v Wicks  AC 92, at p 120F be subverting the whole scheme of the Act.
69. Planning authorities will in particular require to consider the human factor. In Westminster City Council v Great Portland Estates plc  1 AC 661, 670 Lord Scarman observed:
Certainly in the enforcement of planning control these personal and human factors must be taken into account. They will also play a part in the earlier stages of the drawing up of plans and policies as well, of course, in the decisions in individual cases whether or not some particular permission should or should not be granted.
70. But the enforcement of the planning decisions which have been reached by planning authorities does not in my view strictly involve the exercise of a planning judgment. The statutory provisions relating to enforcement are set out in a distinct part of the Town and Country Planning Act 1990, Part VII. They are in a broad sense "planning matters". Indeed the initiative to enforce planning control under these provisions lies with the authority. In deciding whether to take action in the event of a breach of planning control the authority will require to weigh a variety of factors which go beyond the considerations of the planning judgment in the light of which the plans were made and permissions granted or refused. The factors will now include the seriousness of the breach and its effect in the particular case. The authority will also require to consider which of the various methods of enforcement provided by the statute they should adopt. Enforcement notices and stop notices are courses which the authority may take at their own hand. So also is the breach of condition notice introduced by section 187A. But the injunction provided for by section 187B requires the intervention of the court. Parliament has expressly given the power to grant this particular form of remedy to the court. The authority must decide that the course is "necessary or expedient", but it is for the court, not for them, to issue the order.
71. In exercising its power the court must not re-assess matters which are the subject of a planning judgment. But that does not mean that the factors which have been considered by the authority in making their planning judgment may not be properly taken into account by the court in deciding whether or not to grant this particular remedy. In looking at the factors which weighed with the authority the court is not embarking upon a reassessment of what was decided as matter of planning judgment but entering upon the different exercise of deciding whether the circumstances are such as to warrant the granting of the particular remedy of an injunction.
72. It is said that if the court was enabled to take into account matters which have been considered by the planning authority in deciding whether a particular development was acceptable in planning terms and the court refused an injunction it would in effect be granting a temporary planning permission for the development. But the analogy is not exact. The authority might be able to take fresh steps for enforcement on a more secure basis than that on which they had attempted to do so before. They could also seek enforcement if any change of circumstances occurred. So the defendant does not truly enjoy any protective permission. The temporary relief which he may enjoy is no different from the relief which he would achieve through a successful challenge by judicial review and the propriety of the court granting review of an invalid decision by the local authority should not be open to criticism on the ground that the court is granting some kind of temporary permission to the person who applied for review.
73. Accordingly in my view section 187B(2) allows and has always allowed the court in the exercise of its discretion in granting an injunction to weigh up the public interest in securing the enforcement of planning policy and planning decisions against the private interests of the individuals who are allegedly in breach of planning control. In particular I would hold that it is open to the court to consider questions of hardship, particularly as regards health, arising out of the effect on such individuals of a grant of an injunction. In that regard I do not consider the observations contrary to that view in Mole Valley District Council v Smith (1992) 90 LGR 557 and more particularly in Hambleton District Council v Bird  3 PLR 8 to be sound.
74. Those two cases were decided before the Human Rights Act 1998 came into effect. The requirement imposed by section 6(1) of that Act on a court to whom an application for an injunction is made under section 187B of the 1990 Act now makes it a matter of statutory necessity for the court in any case where article 8 of the Convention applies to see whether the test of proportionality is satisfied before an injunction is granted. Counsel for the appellants sought assistance from the decision of the Court of Appeal in Sheffield City Council v Smart  LGR 467. But that case was dealing with non-secure tenancies under section 193 of the Housing Act 1996 and it may be noted by way of distinction that, at p 482, para 31 Laws LJ said:
Counsel also argued that the court did not require itself to apply a test of proportionality where the regime was already compliant with the Convention. But while the scheme of the planning legislation may comply with the Convention the application of particular provisions of it in particular circumstances gives rise to distinct and separate questions which are not solved merely by reference to the general regime.
75. So far as the particular cases before us are concerned I gratefully adopt the account of the facts which has been set out in the speech of my noble and learned friend Lord Bingham of Cornhill. In that regard I would point out that the circumstances of the two cases where the respondents have contested the appeal before us are quite special. In each case the respondent owns the land in question and while the two pieces of land lie respectively in an area of green belt or green barrier it is not suggested that there is any urgent environmental problem. In each case there are problems of health and lack of alternative accommodation made more problematic as the respondents are Gypsies where considerations of humanity may be particularly acute owing to their particular traditions and lifestyle. That their cases are far from hopeless on the merits is reflected in the fact that they have each been granted a planning permission, although since the hearing before us I understand that an appeal by the local authority in Mrs Porter's case has been upheld. These considerations give a particular force to the proposition that an injunction may be an inappropriate remedy. But that these particular cases have that force should not be understood as diminishing in any way the value of the means of enforcement of planning control provided by section 187B. One reason for its introduction was to reduce the risk of the system for the enforcement of planning control being abused. It remains a potent weapon for that purpose and no doubt in other cases its use to support and back up the other methods of control will be found to be appropriate.
76. However in the present case I consider that the Court of Appeal proceeded upon the correct approach and I agree with the decision which they reached. I agree in particular with their criticism of the decision in the case of Berry whose facts in my view can be distinguished from those in Chapman v United Kingdom (2001) 33 EHRR 399. I would accordingly dismiss the three appeals which are before us.LORD HUTTON
77. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord Steyn and I am in full agreement with the reasons which they give for dismissing these appeals. I will only add a few observations of my own relating to the issue of personal hardship.
78. The appeals are concerned with the problem which arises when the enforcement of planning control would result in considerable personal hardship to the occupier of the site against whom the enforcement is to take place. The present cases are examples of the difficulties which arise when it is desirable on planning grounds relating to the amenity of the area to stop the use of land as a site for a caravan or mobile home, but when an injunction under section 187B of the Town and Country Planning Act 1990 ordering the cessation of such use would cause severe hardship to the person who lives in the caravan or mobile home because of his or her age or ill health.
79. Section 187B of the Town and County Planning Act 1990 provides:
80. In his judgment in the Court of Appeal (with which Peter Gibson and Tuckey LJJ agreed)  1 WLR 1359, at p 1363F Simon Brown LJ stated that the central issue for determination on the appeals was the extent to which the court itself on a section 187B application should exercise an independent judgment in deciding whether or not to grant an injunction. After a careful consideration of the authorities Simon Brown LJ stated his opinion as to the approach which a court should take on an application for an injunction under section 187B in cases such as the present ones, at pp 1377-1378, paras 38 to 42 of his judgment which have been set out in full in the speech of Lord Bingham.
81. Mr Straker QC, for the appellants, submitted that the Court of Appeal erred in departing from the approach taken by that court in earlier decisions that it is not for a court to weigh competing interests in planning matters. Parliament had entrusted to local planning authorities, which are democratically elected bodies, the task of weighing such interests and the decisions of those authorities are subject to an appeal on the merits to the Secretary of State who is answerable to Parliament. Therefore it is not the concern of a court to carry out that function and to decide where the balance lies between the interests of the defendant occupier and the wider community. If, on an application under section 187B, a local planning authority proves a breach of planning control, an injunction should be granted unless it can be shown that its decision to enforce planning control is invalid on Wednesbury grounds. The purpose of the court is to assist in the enforcement of planning control, not to make planning decisions itself.
82. Mr Straker cited a number of decisions in support of this submission: Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment  AC 132; Tesco Stores Ltd v Secretary of State for the Environment  1 WLR 759; R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  2 WLR 1389. The statement which most strongly supports the appellants' argument is the observation of Lord Hoffmann in Tesco Stores, at p 780G:
83. However the issue which lies at the heart of this case is what in Westminster City Council v Great Portland Estates plc  AC 661 Lord Scarman termed "the human factor". The cases on which Mr Straker relied related to matters of planning policy and the planning merits of particular cases and were not concerned with cases where the question of human hardship arose. On this issue the speech of Lord Scarman (with which the other members of the House concurred) provides clear guidance. In the Great Portland Estates case a question arose as to whether in formulating a plan for the development of the use of land under the Town and Country Planning Act 1971 a city council should have regard to the interests of individual occupiers of premises. In his speech Lord Scarman considered the extent to which the human factor can be taken into account in planning decisions. At p 669H he cited the observation of Lord Parker CJ in East Barnet Urban District Council v British Transport Commission  2 QB 484, 491 that "what is really to be considered is the character of the use of the land, not the particular purpose of a particular occupier". At p 670D he said that "a planning purpose is one which relates to the character of the use of land" and at p 670E he stated:
84. In his judgment at p 1377, para 38 Simon Brown LJ drew a distinction between the planning merits of a case on the one hand and the hardship which would be suffered by a defendant and his family on the other. He held that it was not for the judge to decide purely planning matters - this was a matter for the local planning authority, but that it was right for the judge to take into account the human factor, stating, at p 1377B:
85. As Lord Scarman recognised in his speech in Great Portland Estates that the human factor is sometimes a distinct and additional factor to be viewed separately from ordinary planning considerations and that on occasions it should be given direct effect as an exceptional or special circumstance, I think that Simon Brown LJ was right to make the distinction he did between purely planning considerations and the human factor, and that he was also right to hold that the human factor should be taken into account in deciding whether planning control should be enforced by the granting of an injunction.
86. I do not accept Mr Straker's submission that it is not appropriate for a court to take into account and weigh against purely planning considerations the hardship which the defendant would suffer if he or she were forced to move from the site. It is clear that section 187B gives the court an original jurisdiction which it is to exercise as it thinks right. Subsection (2) states that the court "may" grant such an injunction as the court "thinks appropriate" for the purpose of restraining the breach. Therefore it is not for the court to act merely as a rubber stamp to endorse the decision of the local planning authority to stop the user by the particular defendant in breach of planning control. Moreover the court is as well placed as the local planning authority to decide whether the considerations relating to the human factor outweigh purely planning considerations; the weight to be attached to the personal circumstances of a defendant in deciding whether a coercive order should be made against him is a task which is constantly performed by the courts.
87. Article 8 of the European Convention on Human Rights provides:
In Buckley v United Kingdom (1996) 23 EHRR 101 the European Court of Human Rights held that the fact that a gypsy was living in a caravan on a site in breach of planning control did not disentitle her from claiming that the caravan was her "home" within the meaning of Article 8. Simon Brown LJ held at p 1378, para 41 of his judgment that under section 6(1) of the Human Rights Act 1998 a court hearing an application for an injunction under section 187B must act in a way which is compatible with the right given by Article 8. In my opinion he was right to do so because section 187B requires the court to decide on the facts of the individual case whether it is appropriate to grant an injunction which, in cases such as these, will require the defendant to leave his or her home.
88. At pp 1377-1378, paras 38 to 42 of his judgment the learned lord justice gave what, in my respectful opinion, is clear and helpful guidance as to the factors which a court hearing a section 187B application should take into account, which included the following. At p 1377D, he stated:
And, at p 1377G:
In Chapman v United Kingdom (2001) 33 EHRR 399 the European Court of Human Rights stated, at p 428: