Comment on the PORTER case Samantha Pullin LLB Barrister Eastbourne Borough Council

Subject: South Bucks District Council v Porter & Others, 12th October 2001

The Judgement does start by saying that the case raised difficult questions of general application of how the court should exercise its power under s 187B of the 1990 Act.

The four cases concerned gypsies. The injunction preventing them from living in mobile homes on land in breach of planning control was clearly an interference with Art 8 (their right to private and home life). However, the interference was also clearly lawful and in pursuit of a legitimate aim. The question for the court was therefore one of proportionality.

The relevant paragraphs of the judgement as to the general approach courts should take, are paragraphs 38 to 42. These state, in summary:-

1. On a s 187B application, the judge is not required or entitled to reach his own independent view of the planning merits of the case. He must assume these are as decided within the planning process, the actual or anticipated breach of planning control being a given fact.

2. However, the judge should not grant injunctive relief unless he would be prepared to commit the defendant to prison for breach of the order. (An injunction should not in any event (as a matter of common sense) be granted unless it can be enforced).

3. In a case involving a person's home, this will clearly take account of the hardship to a defendant and his family in having to move. Consideration would have to be had to suitable other accommodation, the family's health and education.

4. These factors will need to be weighed against the need to enforce planning control, the planning history of the site and the flagrancy of the breach.

5. A balance will accordingly be struck between the appropriateness and necessity for obtaining an injunction to protect the environment, against not imposing an excessive burden on the individual's right to private and home life, and right to retain their ethnic identity.

6. Thus if conventional enforcement measures have failed over a prolonged period of time to remedy the breach, the court would be readier to grant an injunction.

7. However where there is some urgency, for example on health and safety grounds, or where an injunction is required to prevent an anticipated breach (i.e. to stop someone moving onto the site in the first place) again an injunction might be appropriate.

8. Previous planning decisions will be another relevant factor to be weighed in the balance. The degree of relevance will depend on how recent they are and the issues taken into account.

9. Likewise the Council's decision to apply for an injunction will be relevant as they are the democratically elected authority. The degree of relevance depends on the extent that all material considerations were properly considered.

10. The court cannot question the existing planning status of the land, although it can consider the extent of environmental damage caused by the breach and the urgency in stopping or preventing this. In future potential injunction cases,

I therefore think the following should be borne in mind:-

1. This case sets down very helpful guidelines as to the extent of the courts' powers under s 187B and it will be likely to be useful to quote these guidelines in future injunction cases.

2. Where an injunction effects someone's home, then clearly the Council will need to consider the effect of the injunction on the welfare, health and education of the occupiers. It would be sensible for these issues to be considered and documented up front when authority for an injunction is granted so as to lend weight to the Council's decision. Such matters should also be tackled within the supporting witness statement.

3. Where the injunction does not effect a person's home, these matters will not be relevant, although the general principles will still apply.

4. It will accordingly always be appropriate for the supporting witness statement to give details as to the environmental damage caused by a breach and the urgency in preventing such damage.

5. It will also be important to consider other possible remedies.

6. Where an injunction is wanted to prevent someone unlawfully moving onto land, an injunction can be sought. The court in particular emphasised that this might involve less hardship then if the family were subsequently moved out after a prolonged period.

7. The judgement further makes it clear, that the court can undertake this balancing task under s 187B and by doing so in 'a structured and articulated way, the appropriate conclusion should emerge.' By carefully drafting supporting witness statements using the above factors as a checklist, the Council can clearly assist judges in this task.

Samantha Pullin, Barrister, Eastbourne Borough Council (01323) 415044