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[Buy ICLR report:  1 WLR 2743]
[View ICLR summary:  WLR(D) 223]
||Neutral Citation Number:  EWCA Civ 676
||Case No: A2/2013/1548
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE SEYMOUR QC
 EWHC QB 1715
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MASTER OF THE ROLLS
LORD JUSTICE PATTEN
LORD JUSTICE VOS
|| LONDON BOROUGH OF NEWHAM
||- and -
IBRAHIM AHMED SHAIK
SOLAD SAKANDAR MOHAMMED
Tim Fancourt QC (instructed by Deen and Co Solicitors) for the Appellants
Douglas Edwards QC and Jack Connah (instructed by London Borough of Newham Legal Services) for the Respondent
Hearing date: 30 April 2014
HTML VERSION OF JUDGMENT
Crown Copyright ©
Master of the Rolls:
- The appellants are the trustees of a charity known as Anjuman-E-Islahul-Muslimeen of London (UK) Limited ("the Trust"). The Trust operates a faith centre at Abbey Mills Riverine Centre, Canning Road, London E15 ("the Centre") where the local followers of Tablighi Jammat, an international faith reform group with 80 million followers worldwide, meet and worship. The Respondent ("the Council") is the local planning authority for the area in which the Centre is located.
- The site on which the Centre is constructed (which comprises some 6.5 hectares of largely vacant land) was acquired by the Trust in 1996. It was formerly used for the production of chemicals and is heavily contaminated. The Centre is used 7 days a week and between 1500 and 1900 people attend prayers on Thursday evenings and about 1000 on Fridays at lunchtime. There are old commercial buildings on the site, which are used as a mosque, some new buildings or additions and a large car park. The site is of major strategic importance for the delivery of new housing and economic development, in accordance with the policies in the London Plan for growth, regeneration and housing. Policy S1 of the Council's Core Strategy (adopted in 2012) states that the Council's overriding priority is to ensure that growth contributes to achieving economic and social convergence with the rest of London. The site is allocated within the Core Strategy as a "strategic site" in Policy S2. Policy S10 specifically allocates the site for a mix of residential and employment uses so as to contribute to the creation of a new local centre in the vicinity of West Ham Station.
- The Trust acquired the site with the intention of using it as a Muslim foundation, incorporating a mosque and supporting uses. The site has a long and involved planning history. It is unnecessary to set out the details of the unauthorised developments that have occurred from time to time. On 4 June 2001, the Trust submitted a planning application for change of use of the buildings for worship purposes and for permission for the building extensions that they had constructed. On 17 October 2001, the Council responded by granting a temporary planning permission for the current faith-based use which expired on 1 November 2006. On 18 February 2010, the Council issued an enforcement notice which required the cessation of the faith-based use and removal of all unauthorised buildings, all fixtures associated with the mosque and the hardstanding used as a car park.
- The Trustees appealed against the enforcement notice and a public inquiry was held in February 2011. During the course of the inquiry, the Trust entered into a Unilateral Deed of Undertaking dated 28 February 2011 ("the Undertaking") under section 106 of the Town and Country Planning Act 1990 ("the 1990 Act"). By the Undertaking, the Trustees covenanted with the Council to submit within 12 months a planning application for the "Development". The "Development" was defined as a "planning proposal which provides a mixed use development which conforms to adopted and emerging planning policy and which may include an element of community (including faith-based) use, but of a scale which is proportionate and which does not dominate the overall mix of uses". They agreed that, in the event that they did not submit a planning application in accordance with the Undertaking, they would forthwith carry out the "Removal Works". These were defined in a schedule to the Undertaking as the works specified in the enforcement notice, including (i) ceasing the use of the Centre as a place of worship; (ii) removing all fixtures associated with the use of the site as a place of worship from all the buildings identified in the enforcement notice; (iii) removing all buildings associated with the use of the land as a place of worship; and (iv) removing all resulting debris in connection with the works.
- By a Decision dated 23 May 2011, the Planning Inspector allowed the appeal against the enforcement notice to the extent of granting a temporary planning permission for the current use for a period expiring on 23 May 2013. It is plain from the Inspector's decision letter ("the Decision Letter") that the temporary planning permission was granted in order to allow the Trust to bring forward during the life of the temporary permission an application for a policy-compliant mixed use form of development.
- In the event, no valid planning application was made by 28 February 2012. Eventually, an application was made which was validated by the Council on 5 September 2012. This was for a single faith-based use (contrary to both the Development Plan and the Undertaking). The application was refused by the Council on 20 December 2012. One of the reasons for the refusal was that the proposed development was not in accordance with the development plan policies. The Trust has appealed against that decision.
- On 10 October 2012, the Council resolved to commence proceedings to enforce the terms of the Undertaking. On 21 May 2013, HH Judge Seymour QC granted the Council a mandatory injunction requiring the Trust to carry out the Removal Works specified in the Undertaking. The Trust appeals against this decision with the permission of Lewison LJ.
- On 17 May 2013, the Trust applied to the Council to vary the condition attached to the temporary planning permission granted by the Inspector on 23 May 2011 so as to extend the life of that permission for a further two years. The Trust has appealed against the non-determination of that application.
- On 16 July 2013, the Council issued an enforcement notice alleging a breach of the condition attached to the May 2011 planning permission limiting that permission to a period of two years. The Trust has appealed against this enforcement notice.
- The three appeals are to be determined by the Secretary of State under para 3 of Schedule 6 to the 1990 Act on the ground that they involve "proposals giving rise to substantial regional or national controversy". The appeals will be heard by a Planning Inspector at a three week Inquiry in June 2014. It is envisaged that the Inspector will submit recommendations to the Secretary of State in October 2014.
The statutory framework
- "106 Planning obligations
(1) Any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation (referred to in this section and sections 106A and 106B as "a planning obligation"), enforceable to the extent mentioned in subsection (3) –
(a) restricting the development or use of the land in any specified way;
(b) requiring specified operations or activities to be carried out in, on, under or over the land;
(c) requiring the land to be used in any specified way; or
(d) requiring a sum or sums to be paid to the authority [(or, in a case where section 2E applies, to the Greater London Authority)] on a specified date or dates or periodically.
(5) A restriction or requirement imposed under a planning obligation is enforceable by injunction.
187B Injunctions restraining breaches of planning control
(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.
(2) On an application under subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach."
- The judge said at para 15 of his judgment that it was important to understand that what the Council was seeking was "an ordinary contractual remedy". Prima facie, therefore, the Council was entitled to an injunction to require the Trust to do what it had promised to do. The court had a discretion, which fell to be exercised on well-established principles. At para 16, he said that, in an appropriate case, the court might decide that the consequences of granting an injunction are out of all proportion to the benefit likely to be derived by the party seeking it and the detriment likely to be suffered by the party against whom the injunction is sought. But where (as in the instant case) damages were not an adequate remedy, the only way in which enforcement could be achieved was by the grant of an injunction. At para 17, he said:
"I emphasise that the court's discretion is actually quite limited because once it is accepted, as it is accepted in this case, that the defendants have failed to do what which they contracted to do, prima facie the injunction follows."
- The judge then considered various specific points made on behalf of the Trust in opposition to the grant of an injunction. One of these (point C) was that there was outstanding a full appeal against the decision of 20 December 2012 to refuse planning permission. He said (para 20) that the process of enforcement of obligations entered into under section 106 of the 1990 Act was entirely separate from the process of an appeal against the refusal of planning permission. The planning merits of the Trust's case would be considered at the Inquiry, but they were not matters for consideration by the court. The enforcement of obligations assumed under section 106 were not matters of planning enforcement; they were matters of enforcement of contractual obligations (paras 22 and 23). The judge accepted (para 24) that the grant of an injunction would cause "untold harm to a charitable and community group including great harm to third parties". But that was not a reason for not granting an injunction. The Trust must have recognised the consequences of their not performing their obligations at the time when they entered into the Undertaking. If (which he doubted) he "technically" had a discretion to suspend the injunction, he was entirely satisfied that it would not be appropriate to exercise it in the circumstances of this case.
The grounds of appeal
- The grounds of appeal are that the judge erred in (i) holding that the court's discretion to refuse an injunction under section 106(5) was "quite limited"; (ii) failing to exercise his discretion to refuse to grant an injunction taking account of the existence of the planning appeal and the balance of benefits and detriments; alternatively (iii) (if an injunction was rightly granted) refusing to suspend the operation of the order until the outcome of the appeal was known.
Ground 1: the scope of the discretion under section 106(5) of the 1990 Act
- I should make clear at the outset that what was sought in the present case was a final and not an interim injunction. That is important because the well-known jurisprudence applicable to interim injunctions (exemplified, for example, by American Cyanamid Co v Ethicon Ltd  AC 396) has no application here.
- It is not in dispute that planning obligations entered into under section 106 of the 1990 Act are contractual obligations: see, for example, R (Millgate Development Limited) v Wokingham Borough Council  EWCA Civ 1062,  3 EGLR 87 at para 22(e) and Stroude v Beazer Homes Ltd  EWHC 2686 (Ch),  2 P& CR 6. The mechanism for enforcement is provided by section 106(5): "[a] restriction or requirement imposed under a planning obligation is enforceable by injunction".
- It is common ground that damages will usually not be an adequate remedy in the event of a breach of a planning obligation. A local planning authority will rarely be able to point to a loss measurable in money terms that it has suffered as a result of such a breach. In seeking an injunction, the authority exercises a public function and does so in the public interest. Unless the local planning authority has been guilty of delay or unconscionable conduct such as might justify a refusal of relief on ordinary equitable principles, the court will usually exercise its discretion to grant an injunction in a case of substantial breach of a planning obligation. That applies whether the injunction is prohibitory or mandatory. The court is doing no more than holding the party in breach to its bargain.
- In Avon County Council v Millard (1985) 50 P&CR 275, the defendants, the owner of a mine and his lessees, had entered into an agreement with the local planning authority under section 52 of the Town and Country Planning Act 1971 (the predecessor of section 106 of the 1990 Act). By the agreement, the defendants agreed that they would cease to use or permit the use of the mine on a certain date. They did not do so. The local planning authority brought an action claiming an injunction restraining them from continuing or permitting the use of the mine for mining operations. They issued a summons seeking an interlocutory injunction. The judge refused an injunction on the grounds that the authority should have pursued its statutory remedy and used the enforcement notice procedure. The Court of Appeal allowed the plaintiffs' appeal. Fox LJ said at p 279 that the case was concerned with breach of contract. He continued:
"There is nothing in section 52 that indicates that ordinary civil remedies for breach of such contract were not to be available; indeed, subsection (2) suggests that they were. Since the local authority will not normally suffer damage and is not normally in search of damages as a remedy, injunction will normally be the only appropriate remedy under the contract."
- He then went on to apply the American Cyanamid principles and concluded that the balance of convenience was in favour of enforcing the covenant that the company was clearly breaking. Although the decision was in relation to an application for an interlocutory injunction, the passage that I have quoted from the judgment of Fox LJ (with which Dillon LJ agreed) was directed to the grant of injunctions generally. It is immaterial for present purposes that section 52 of the 1971 Act is significantly different from section 106 of the 1990 Act. A similar approach was followed in London Borough of Tower Hamlets v Stanton Rubber & Plastics Ltd  JPL 512.
- In my judgment, where there has been a substantial breach of a planning obligation under section 106 of the 1990, an injunction will normally be granted unless the local planning authority has acted in a way which justifies withholding relief on ordinary equitable principles. The fact that there is an outstanding planning appeal will usually be irrelevant. That is because the matters to which a local planning authority must have regard when making a planning decision concerning matters of planning control (for example, determining an application for planning permission, seeking an injunction under section 187B of the 1990 Act or taking direct action under section 178 of the 1990 Act) are not matters to which a local planning authority is required to have regard when deciding whether to seek an injunction under section 106(5) or to which the court should have regard when deciding whether to grant such an injunction. The distinction between matters that should be considered in the enforcement of planning control, as compared with other decisions (such as instituting criminal proceedings) was recognised by Ouseley J in R (O'Brien) v Basildon District Council  EWHC 1346 (Admin),  1 P &CR 16 at paras 174 to 176. I accept the submission of Mr Edwards QC that the relevant distinction is between mechanisms that enforce planning control and those that do not.
- Mr Fancourt QC submits that the court should adopt a broader and more proportionate approach to the exercise of the discretion to grant an injunction for breach of a planning obligation under section 106. In support of this submission, he relies in particular on South Buckinghamshire District Council v Porter  UKHL 26,  2 AC 558. This case concerned applications by local planning authorities under section 187B of the 1990 Act for injunctive relief against the defendants, who were travellers, to prevent them from living in mobile homes and caravans on land acquired by them for that purpose, but for which planning consent had been refused. The defendants successfully appealed against the grant of the injunctions on the ground that the court had failed to consider, in addition to any relevant planning considerations, the likely effect of the orders on their human rights. Lord Bingham said at para 29 that the power to grant an injunction under section 187B must be exercised with due regard to the purpose for which it was conferred, namely to restrain actual and threatened breaches of planning control. Where it appears that a breach or apprehended breach will continue or occur unless and until effectively restrained by the law and that nothing short of an injunction would provide effective restraint, that would point strongly towards the grant of an injunction. But in all cases, the court must decide whether in all the circumstances it is just to grant the relief sought against the particular defendant. Lord Steyn agreed and emphasised at para 57 the "equitable nature of the remedy and the width of the discretion".
- But the purpose of an injunction under section 187B is to restrain a breach of planning control. The purpose of an injunction under section 106(5) is to enforce an undertaking voluntarily given to a local planning authority. As Mr Edwards points out, the facts of the present case are perhaps unusual in that the breach of the Undertaking is also a breach of planning control. This does not, however, justify a conflation of the factors that should or may be taken into account in deciding whether to grant an injunction for breach in the two cases. They are distinct. In any event, even in a section 187B case the fact that a breach of planning control has occurred and that nothing short of an injunction will provide effective restraint will point strongly towards the grant of an injunction.
- I would therefore hold that, in the absence of circumstances that would on normal equitable principles lead to the denial of an injunction, where there has been a substantial breach of a planning obligation under section 106, the discretion conferred by section 106(5) should normally be exercised in favour of the grant of an injunction. If a person wishes to contend that a planning obligation no longer serves a planning purpose, then it should seek to discharge or modify the obligation under section 106A or 106B. That is the route by which Parliament decided that a person might be relieved from its planning obligation.
- Mr Fancourt submits that the judge's exercise of discretion was flawed because he failed to give any proper weight to the fact that (i) the long-term development of the site would be determined at the forthcoming appeal; and (ii) if the Trust was required to cease using the site as a place of worship and remove all buildings and fixtures associated with that use, the thousands of worshippers and members of a well-established community would be seriously harmed. The witness statement of Solad Sakander Mohammed dated 15 May 2013 explains that, if those who use the Centre were compelled to vacate the site, they would have nowhere to worship and meet and they might have to cease their charitable operations in the area. There are no alternative sites available to them in London: all other mosques are already at full capacity. He said:
"27…..The very large and well-established community we represent will fragment and this will cause a great deal of difficulty for a lot of people who depend upon us for prayer meetings, faith discussions, learning, schooling and charitable support.
28. I believe that the actions of the Claimant will substantially threaten our ability to carry on operating in the area and practice our faith….."
- Mr Fancourt also submits that the judge failed to take into account that there were no matters of short-term planning harm that justified the grant of an injunction. The Inspector who heard the appeal against the enforcement notice in 2011 concluded that (i) there was limited harm caused by the continuing unauthorised use; (ii) such harm as there was could be mitigated by the imposition of conditions; and (iii) the harm and non-compliance with the development plan was significantly outweighed by the benefits of allowing the use to continue: the Centre served an important community need which should be given significant weight. The Council's approach to the harm that would be caused by the refusal of an injunction was focused on the detrimental impact of a delay in the redevelopment of the site in accordance with the strategic objectives of the Council. But the Inspector disagreed with this: see the summary of his conclusions set out at para 19 of the witness statement of Tim Taylor dated 20 November 2012.
- Mr Fancourt relies on the Inspector's favourable assessment of the Trust. At para 92 of the Decision Letter, he said that:
"While I have found that it is not essential that the use be located at this site, that many users come from outside the area, and that most of those people use other mosques as well as the appeal site, it is evident from the numbers attending that having a large meeting place serves an important community need and I attach substantial weight to that. It would be possible to identify other sites for the use, but it would take considerable time and, in my view, it would be unreasonable to expect this, given that the appellant owns this site, there is agreement by the council that some faith based use would be acceptable and the obligation to progress a planning application."
- And at para 98, he said:
"Given the substantial need for the use, the existence of the use at the site, albeit with an expired temporary planning permission, policy support for this type of use, acknowledging that land and finances for new community buildings are scarce, encouraging the retention and enhancement of existing resources, and the mitigation of the harm, identified through conditions, I consider that on balance the harm identified and non compliance with policy and guidance is considerably outweighed by the benefits. If an appropriate application does not come forward there are a number of ways that the council can enforce removal of the time limited use at the end of the period…."
- In summary, therefore, Mr Fancourt submits that the judge was wrong to hold that (i) the possibility of a successful appeal, (ii) the lack of any planning harm in continuing the current use pending the outcome of the appeals, and (iii) the harmful impact on the users of the Centre of granting the injunction were factors of little, if any, weight. Together, they made the grant of the injunction disproportionate to the harm caused by the breach of the Undertaking. The argument against the grant of an injunction was all the greater because rights under article 9 of the European Convention on Human Rights ("the Convention") (right to freedom of thought, conscience and religion) and article 11 (freedom of peaceful assembly) were engaged.
- In my judgment, the judge was entitled to conclude that he should exercise his discretion to grant an injunction in this case. He considered that there needed to be a compelling reason not to hold the Trust to the Undertaking and grant a mandatory injunction which would have that effect. He was right to do so. He was entitled to hold that the factors relied on by Mr Fancourt were insufficiently compelling to displace the consequence that should normally follow in the event of a substantial breach of a planning obligation under section 106. The breach was substantial. The Trust had made an application well out of time and, more importantly, it had failed in a most material respect to comply with the substantive requirements of the Undertaking. The Trust has explained that the reason for this was that it had been advised that an application for a mixed planning use would not be viable. There was discussion before us as to whether the Trust was aware of the lack of viability (which is contested by the Council) when it entered into the Undertaking. At the appeal before the Inspector, the Trust advanced as part of its case an argument that a mixed use policy-compliant development would not be viable. The chairman and a senior director of Grant Mills Wood gave evidence to that effect on behalf of the Trust. Despite this, the Trust gave the Undertaking. Following the Decision Letter, the Trust commissioned further advice from Grant Mills Wood and the other consultants and experts listed by Mr Mohammed in para 22 of his witness statement, at a total cost of around £1 million. Grant Mills Wood who in a detailed report gave full reasons in support of their conclusion that a mixed use policy-compliant development would not be viable. I do not find it necessary to decide whether (as Mr Fancourt submits) the further advice comprised a material change of circumstances or whether (as Mr Edwards submits) it merely confirmed what the Trust knew when it entered into the Undertaking. The judge did not refer to this point in his judgment.
- The fact remains that the Trust entered into the Undertaking in order to advance its case before the Inspector that it should be granted temporary planning permission authorising its current use of the site. It did so freely and it recognised its purpose and effect. It was fully aware of what it was committing itself to do and the consequences that would follow if it did not comply with its obligations. That is clear from the submissions made at the Inquiry by its leading counsel, but would have been clear in any event. The language of the "Removal Works" annexed to the Undertaking is clear and unambiguous. To refuse an injunction would defeat the whole purpose of entering into the section 106 obligation. I accept the submission of Mr Edwards that, in these circumstances, it is not oppressive to enforce the obligation. It is simply a case of holding the Trust to its agreement. It is true that, in the event, the Inspector placed little weight on the Undertaking. That was because, as he said at para 81 of the Decision Letter, the Undertaking did not in itself ensure that an appropriate application with a mix of uses acceptable to the Council would be made. But that does not diminish the significance of the fact that the Trust entered into the Undertaking voluntarily for the purpose of advancing its case before the Inspector.
- In these circumstances, the judge was right, or at least entitled, to regard the existence of the appeals as an insufficiently compelling reason for not granting an injunction. He said that the enforcement of the planning obligation and the full planning appeal were entirely separate processes. That was correct. It was rightly not in dispute before this court that the merits of the planning appeal were irrelevant to the injunction proceedings. The hearing of the planning appeal was not imminent: the judge said at para 21 that the appeal would no doubt be heard "in the fullness of time". He was aware of the obvious point that the effect of the injunction would be a cessation of the existing use of the site and the demolition of the existing buildings; and that if the Trust succeeded on the appeal, it would be able to construct whatever the Inspector decided should be permitted on the site.
- Detailed submissions were made to the judge as to the harm that would be caused by the grant of an injunction: see paras 42 to 47 of the skeleton argument of Ms Williams in the court below. The hardship point was fairly placed before the judge. As he said at para 24: "quite a lot of evidence has been put before me in relation to the impact upon those who have been accustomed to visit and worship at the Mosque of the consequences of the grant of an injunction". He said:
"It is unfortunate that the consequences of them having entered into the obligations in the deed and then not having performed them is that the injunction sought by the claimant must now be granted, as it seems to me, but it is not a reason for not doing so that consequences which the defendants themselves must have recognised at the time they assumed the obligation in the first place will now come to pass."
- In other words, the judge was aware of and took into account the harmful effect that an injunction would have, but concluded that this was insufficient to justify withholding the remedy that would ordinarily be granted in such a situation. It is true that he did not make any reference to articles 9 and 11 of the Convention. But article 9(2) states that "freedom to manifest one's religion or beliefs shall be subject only to such limitations as a prescribed by law and are necessary in a democratic society…..for the protection of the rights and freedoms of others". There is a similar provision in article 11(2). The enforcement of planning obligations by a local planning authority in the public interest falls squarely within the scope of articles 9(2) and 11(2). I do not consider that an argument based on the Convention takes the debate any further.
- For all these reasons, I would dismiss the appeal against the grant of an injunction.
Third Ground: should the judge have suspended the injunction pending the appeal?
- As I have said, the judge doubted whether, in the light of the plain breaches, he had a discretion to suspend the injunction. He decided that, if he had such a discretion, it would not be appropriate in the circumstances to exercise it. He gave no reasons for this conclusion.
- In my view, the judge plainly had the power to suspend the injunction under the inherent jurisdiction of the court. He was wrong to express doubts about that. The question whether to grant an injunction is different from the question whether to suspend it and it calls for separate consideration. It did not necessarily follow from the fact that it was appropriate to grant an injunction that it was not appropriate to suspend it. The fact that the judge gave no reasons for refusing to suspend the injunction strongly suggests that he gave no proper separate consideration to that issue. It was inadequate merely to say that it was not appropriate to suspend "in the circumstances of the case". In my view, the judge did not exercise his discretion properly. This court should, therefore, exercise the discretion afresh in the light of the situation that obtains now.
- I would emphasise at once that the power to suspend a section 106(5) injunction should be exercised sparingly. Otherwise, the planning purpose achieved by a section 106 planning obligation will be frustrated. But, as I have said, it does not follow from the fact that the existence of an impending planning appeal is not a good reason for refusing an injunction that its existence may not justify suspending the injunction pending the appeal. The grant of an injunction to enforce a planning obligation reflects the court's view that a party should normally be held to its bargain. But there may be circumstances in which it is fair, just and reasonable to suspend the injunction.
- In my view, there are such circumstances in the present case. First, the appeal against the refusal of the application for planning permission for a single faith-based use contrary to the Development Plan is likely to be determined before the end of this year. This is the main appeal. If it succeeds, Mr Edwards rightly concedes that it would be difficult for the Council reasonably to continue to insist on the Trust complying with the Undertaking. It is impossible for this court to predict the outcome of the appeal. The appeal is one of unusual sensitivity and importance for the area. That is why it is to be determined by the Secretary of State. It is far from being an abusive appeal.
- Secondly, to require the Trust to carry out the Removal Works will cause it and the members of the community considerable hardship. That hardship will have served little purpose of practical value if the main appeal succeeds. I say "little purpose" because I accept that the enforcement of planning obligations of itself serves the important general purpose of keeping parties to their obligations. But that purpose should not be given undue weight in a case where the planning future of the site will be fundamentally changed in the event of a successful appeal and where compliance with the injunction will cause serious harm. Thirdly, it is not suggested that there is any particular planning detriment in allowing the status quo to continue for a relatively short period until the planning future of the site is finally determined. Nothing can realistically be done by the Council in relation to the site until the outcome of the appeals is known.
- Fourthly, a refusal to suspend the injunction would effectively pre-empt the outcome of the appeal against the Council's refusal to vary the temporary planning permission so as to extend the life of that permission by two years until 23 May 2015.
- Looking at the matter broadly, I consider that the circumstances of this case justify a suspension of the injunction. The combination of (i) the imminence of the appeals; (ii) the harm that the Trust and the members of the community will suffer if it has to carry out the Removal Works and its appeals succeed will be considerable; and (iii) there will be little if any countervailing planning harm if the injunction is suspended until the outcome of the appeals is known.
- I repeat that the power to suspend an injunction under section 106(5) should be exercised sparingly. But the facts of this case are unusual. In my judgment, they justify a suspension for a period of time which is relatively short in the long and involved planning history of this site. The injunction should be suspended until the outcome of the appeals is known and a short period has been allowed for the parties to consider their positions. I invite them to make written submissions as to the terms of the order.
Lord Justice Patten:
- I agree.
Lord Justice Vos:
- I also agree.
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