4^th July 2003

• Before 1992 injunctions were sought under the general s.222 LGA 1972 power, but the its scope was relatively limited and was only clarified over time – see City of London v Bovis CA [1989] JPL 263.

• Robert Carnwarth was asked in 1989 to recommend improvements [Porter @ 15-16]

• A specific statutory power to seek a planning injunction was first introduced in January 1992

• S.187B: [introduced 2-1-92]

(1)Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Part.

• The power to seek an injunction is available where the local planning authority consider it necessary or expedient
• The application may be anticipatory – in advance of a breach of planning control
• The planning authority need not exercise any other enforcement powers
• The purpose of the injunction, if granted, is to restrain the breach of planning control
• The court may grant such injunction as it considers appropriate to restrain the breach
• An injunction may be sought against persons unknown

• 5 Law Lords, 5 opinions. All agreed on the outcome

• All avoided identifying a single test. The discretion is broad and is exercised by reference to the question "is it just" [Bingham @29] or "is it just and convenient" [Scott @99]

• Per Lord Bingham at 29

Porter - considerations

• The personal consequences of granting the injunction to the individual(s) concerned: the human factor

• Whether the local planning authority has taken the human factor into account.

• Whether the ordinary statutory mechanism for enforcement is likely to be effective

• Whether the "planning merits" are clear and final.

• Planning merits/judgment may not be taken into account

• Whether the court would be willing to enforce the injunction if necessary

Consider

• The range of enforcement powers available

• The relative advantages/disadvantages of injunctive relief

• Conclusions

• Enforcement notice s.172

• Right of appeal
• Broad powers re. requirements

• Breach of condition notice –s.187A

• No right of appeal

• Stop notice – s.183

• Where a relevant activity should cease before an enforcement notice takes effect
• Potential compensation under s.186

• Direct action – s.178

• Where steps required by an enforcement notice have been taken
• Enables recovery of expenses from the owner of the land; and, until recovery, the land may be charged.

• Prosecution – s.179

• The owner: where steps not taken or activity not ceased. Statutory defence.
• The person in control: where activity carried on.
• Magistrates Court or Crown Court, penalty - fine

IF SUCCESSFUL

• The court’s authority lends leverage: the risk of contempt of court – powers of imprisonment – is significant
• This is especially so in comparison with prosecution, amongst those to whom the financial penalty is little deterrent.

• Expense and uncertainty of outcome
• Court will not determine outstanding planning issues. Uncertainty over the outcome of an appeal may cause a court to refuse an application
• A personal remedy – restraint of specific individual/s. Their individual circumstances are directly in the frame [9.9 of Good Practice Guide]

• Although the power includes restraint of a breach in anticipation, use it sparingly – if there is likely to be an argument over whether or not there has been/would be a breach of planning control, this should be settled first.
• Unless a particularly urgent case, use it at or after the "second tier" stage – once breach and the planning issues have been established and/or determined.

• Practice

• The officer’s decision :

• why an injunction?
• Is there enough evidence?

• The decision of the lpa :

• Ensure any decision is well documented as to the considerations taken into account
• Ensure the potential Defendant has a full opportunity to lay all relevant considerations before the decision maker

• General Procedure

• File at outset

• Claim form [part 8]
• written evidence and supporting documents
• Application [part 23] for interim injunction
• Draft injunction

• Serve a copy of all the above on the Defendant
• Defendant has 14 days to acknowledge and file written evidence in defence
• Court will identify a hearing date

• Draft the injunction carefully

• the court will grant no more than is necessary to restrain the breach
• Ensure the injunction is precise and specific.

• In an urgent case the court will consider an application without notice. This is rare. The court will require clear justification for not giving the Defendant the required three days’ notice of a hearing.

• Specific rules govern applications for injunctions against those whose names are not known [RSC 110]

• The injunction is a powerful remedy but is supplementary to the other enforcement powers of the local planning authority

• The injunction is a powerful remedy but is supplementary to the other enforcement powers of the local planning authority

• The Courts are exercising a broad discretion; the chances of success can be enhanced by careful consideration of all relevant issues at an early stage