This blog looks at the case of Stratford On Avon District Council v Persimmon Homes Ltd [2015] EQHC 3593 (QB), which serves as a recent reminder of the importance of proportionality where an application for an injunction is sought by a local planning authority when a developer has allegedly breached planning control.

Background

Local planning authorities (“LPAs”) have a range of enforcement measures available to them, and discretion as to whether or not to take any enforcement action. They may do so where they regard it as expedient, having regard to the development plan and any other material considerations (including local enforcement plans). Of the arsenal available to them, an application to court for an injunction is the most serious enforcement route. If a person fails to comply with an injunction, they can be committed to prison.

The courts have an original (not supervisory) jurisdiction and the power to grant an injunction is discretionary – both as to the terms of any injunction it may grant and whether it should grant any injunction at all.

The court cannot act incompatibly with the Human Rights Act 1998. It has long been very clear that in considering whether to grant injunctive relief, the court must consider, on the facts of the case, whether such relief would be proportionate. In granting an order the court must be prepared to commit the defendant to prison should they breach it.

The case

In this recent case, the application was presented by the enforcing authority to court as being necessary and proportionate having regard to what it characterised as a series of flagrant and persistent breaches of planning control, and having regard to underlying issues of safety. The authority identified a need for an enforcement mechanism that could be pursued against the defendant residential developer, rather than individual plot purchasers.

The alleged breaches related, in summary, to compliance with conditions in relation to landscaping plans, and various elements of a Construction Environmental Management Plan (“CEMP”): delivery hours, banking of vehicles, and provision of gate persons throughout the construction period to police vehicular arrivals.

The court refused to grant an injunction, characterising the application as being “disproportionate” and “verging on the oppressive” in many respects. It is helpful to distil some of the elements which weighed against grant of an injunction. First, there was nothing to suggest that conventional enforcement measures (a prosecution for failure to comply with a breach of a condition notice) would be ineffective.

Second, in relation to the wording of the CEMP, it was arguable whether there had been a breach at all – given the obligation was to “avoid” rather than prohibit site deliveries at certain times.

Third, the defendant, Persimmon Homes Ltd, had actually taken a number of steps to try and ensure compliance. The Court considered they had gone to great lengths to secure observation by their subcontractors with the provisions of the CEMP, and sought to allay the authority’s concerns regarding gate persons through offering additional resource and further protective measures.

Fourth, in relation one alleged breach concerning provision of a banksman to guide reversing vehicles, there was a lack of substantive evidence to support the Council’s position that there had been non-compliance. The Court noted that it was “unsatisfactory for a local planning authority seeking to pursue injunctive relief…to rely on matters which are not specifically pleaded and not appropriately covered in evidence filed in support”.

Finally, in relation to landscaping provision, there had been a clear misunderstanding as to what the developer was required to do to comply. The court noted that there should have been more effective dialogue between officers and the defendant, which would have identified and rectified the misunderstanding at an early stage.

What does this remind us about enforcement action?

The case underlines the importance of enforcement action being proportionate. This is a point made very clearly to enforcing authorities by the NPPF (para 207), and Planning Practice Guidance, which states that “there is a clear public interest in enforcing planning law and planning regulation in a proportionate way” (and emphasises the relevance of the provisions of the ECHR such as Articles 1, 8 and 14 when considering enforcement action). Developers may also note the importance of keeping track of condition requirements and compliance. If as a matter of practice full compliance is not practicable, it is important to have early and open dialogue with the LPA.