The impact of human rights legislation on injunction proceedings continues to be an area for debate in the courts.
Section 187B of the Town and Country Planning Act 1990 provides specific power to a local planning authority to apply for an injunction to restrain any actual or apprehended breach of planning control if it considers it necessary or expedient.
The House of Lords case of South Bucks District Council v Porter in 2003 approved of the guidance given by the Court of Appeal in the approach to injunctions brought under section 187B.
In essence, when considering whether to grant an injunction to restrain a breach of planning control, the court has to reach a just and proportionate decision that takes account of any personal hardship that would result.
In that case, a request to grant an injunction seeking to evict gypsies living in mobile homes on the site had to be balanced between the need to protect the environment and the gypsies’ right to respect for home and family life under Article 8 of the Convention in Human Rights.
The House of Lords also emphasised that the degree and extent of the breach and the existence of any previous enforcement action would be material factors in that decision.
Porter was considered and applied by the High Court in 2006 in a case involving the same authority. In South Bucks District Council v Smith the local authority sought an injunction to remove the defendants from an unauthorised site within the Green Belt. The respondents had been in occupation since 1975 and there had been various attempts by the local authority to prevent the defendants misusing the land, including enforcement notices and injunctions that were consequently not enforced.
In deciding to grant the injunction the court applied the principles set out in Porter and deemed that there were a number of factors supporting the injunction.
These were that:
- the land was in the Green Belt;
- previous planning decisions were in favour of the local authority and
- the unlawful occupation had been extremely long and flagrant.
The Court also balanced this against the issue of hardship and human rights and concluded that the environmental concerns ultimately outweighed the individual impact on the defendants.
Local planning authorities will no doubt welcome the decision in Smith as it demonstrates a consistency of approach to a very complex area of law and ultimately underlines the need to take into account all relevant planning issues when deciding what are very emotive and sensitive applications.