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URL: http://www.bailii.org/uk/cases/UKHL/2003/26.html
Cite as: [2003] 2 AC 558, [2003] 2 WLR 1547, [2003] 3 All ER 1, [2003] JPL 1412, [2003] HRLR 27, [2003] BLGR 449, [2003] 23 EGCS 135, [2003] UKHRR 1344, [2003] UKHL 26, [2003] NPC 70

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Wrexham County Borough Council v Berry [2003] UKHL 26 (22 May 2003)
Judgments - Wrexham County Borough Council (Appellants) v. Berry (Respondent)
South Bucks District Council (Appellants) v. Porter and another (FC) (Respondents)
Chichester District Council (Appellants) v. Searle and others (Respondents) (Consolidated Appeals)

HOUSE OF LORDS

SESSION 2002-03
[2003] UKHL 26
on appeal from: [2001] EWCA Civ 1549

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Wrexham County Borough Council (Appellants)

v.

Berry (Respondent)

South Bucks District Council (Appellants)

v.

Porter and another (FC) (Respondents)

Chichester District Council (Appellants)

v.

Searle and others (Respondents)

(Consolidated Appeals)

ON

THURSDAY 22 MAY 2003

The Appellate Committee comprised:

  Lord Bingham of Cornhill

  Lord Steyn

  Lord Clyde

  Lord Hutton

  Lord Scott of Foscote


HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Wrexham County Borough Council (Appellants)

v.

Berry (Respondent)

South Bucks District Council (Appellants)

v.

Porter and another (FC) (Respondents)

Chichester District Council (Appellants)

v.

Searle and others (Respondents)

(Consolidated Appeals)

[2003] UKHL 26

LORD BINGHAM OF CORNHILL

My Lords,

  1. On 12 October 2001 the Court of Appeal (Simon Brown, Peter Gibson and Tuckey LJJ) allowed three appeals and dismissed one: [2002] 1 WLR 1359; [2001] EWCA Civ 1549. The dismissal of the fourth of these appeals (Hertsmere Borough Council v Harty) has not been challenged and that case need not be mentioned further. The appellants before the Court of Appeal in each of the three cases now before the House were Gypsies complaining of injunctions granted against them at first instance on the application of local planning authorities under section 187B of the Town and Country Planning Act 1990. For reasons given by Simon Brown LJ in a judgment with which the other members of the court agreed (paragraphs 60, 61) the Gypsies' appeals were allowed and the cases were remitted to the respective trial courts for redetermination. By leave of the House the three local authorities now appeal to it, challenging the guidance given by the Court of Appeal on the grant of injunctions under section 187B. The correctness of that guidance is the central issue in these appeals.
  2. Although the Court of Appeal described the facts of these particular cases as of secondary importance only (paragraph 5), because the issue raised is one of principle, it is nonetheless relevant to record the facts in brief summary and to note factual developments in the period of 18 months since the Court of Appeal gave judgment.
  3. Mr Berry

  4. Mr Berry bought land near Wrexham, within the Green Barrier, the Welsh equivalent of the Green Belt, in August 1994. The land is within the area of the Wrexham County Borough Council. His applications for planning permission to live on the land with his wife and six children were refused in October 1994, December 1995 and July 1999. He and his family were then living on a local authority site at Croesnewydd, but in September 1999 that site was closed and they were evicted. They transferred to another local authority site nearby at Ruthin Road but were subjected to violence at the hands of other residents of the site and in September 2000 moved to the land which Mr Berry owned. The local authority warned him that he had no planning permission to use the site in this way, and called on him to rectify this breach of planning control. His solicitor was instructed to say that Mr Berry would apply for planning permission. The local authority however resolved to issue an enforcement notice and seek an injunction. The application for an injunction was made on 26 October 2000. The hearing of this application was stayed to await the outcome of an application pending in the European Court of Human Rights (Chapman v United Kingdom (2001) 33 EHRR 399). On 12 February 2001 the application came before McCombe J, who granted an injunction requiring Mr Berry to remove himself and his caravans and vehicles from the site on or before 20 April 2001. Mr Berry's appeal against this decision was allowed by the Court of Appeal in the decision under appeal. He had by this time, following the grant of the injunction, again applied for planning permission which had again (July 2001) been refused. This refusal prompted the local authority to issue the enforcement notice authorised some 10 months earlier, which it did on 31 July 2001. Mr Berry appealed both against the refusal of planning permission and against issue of the enforcement notice. On 18 June 2002 (well after the decisions of the judge and the Court of Appeal) both appeals succeeded. The local authority's challenge to those decisions was rejected by Sullivan J in the Administrative Court but awaits a further hearing by the Court of Appeal.
  5. There was evidence before McCombe J, to which he referred in his judgment (transcript, page 10), that Mr Berry had a history of cardiac illness. He had had a severe heart attack in about 1997. He remained under the care of a consultant cardiologist. His symptoms of chest pain were largely controlled by medication, but occasional emergencies required his admission to hospital.
  6. No site was available for occupation by Mr Berry and his family within the local authority's area, except at Ruthin Road.
  7. Mr Searle and others

  8. In May 2000 Mr Searle (whom it is unnecessary to distinguish from his co-respondents) bought land within the area of the Chichester District Council from a Mrs Collins for £14,000. She had previously applied for planning permission for residential occupation of the land but had been refused. The land was not within a Green Belt but was in an area where development was closely controlled. Mr Searle was told by the local authority that planning permission was needed to move a mobile home on to the land, and gave more than one assurance that he would not do so, but by 12 June 2000 he had moved two such homes on to the site. He requested a form to apply for planning permission and asked that enforcement action be deferred, but on 19 June the local authority resolved to apply for the grant of an injunction. On 22 June application was made and on 30 June an injunction was granted by Judge Barratt QC, who ordered that both mobile homes be removed forthwith. The Court of Appeal allowed Mr Searle's appeal against that order in the decision now under appeal. After that date, the local authority issued an enforcement notice and Mr Searle appealed against the issue of that notice and also against the refusal of planning permission. It seems that an inquiry was held, the outcome of which is unknown to the House. But Mr Searle and his co-respondents have not appeared to resist the local authority's appeal to the House or uphold the decision of the Court of Appeal. This appeal therefore raises the same issue of principle as those of Mr Berry and Mrs Porter, but whatever the outcome of the appeal there can in this case be no question of remitting the matter to the trial judge or re-imposing the injunction, which is understood to have been overtaken by events.
  9. Mrs Porter
  10. Mrs Porter has lived with her partner in a caravan on a site within the Green Belt at Iver in Buckinghamshire since 1985 when she bought the land. It is within the area of the South Buckinghamshire District Council. She has never had planning permission to live on the site, which her partner has used for breeding and dealing in horses. Applications for planning permission made by her in 1988, 1992, 1993 and 1997 were refused, and her appeals against these refusals were either withdrawn (1992, 1993) or dismissed (1998). Enforcement notices were issued in 1987 and 1993: she was fined for non-compliance with the earlier of these notices in 1988; her appeal against the latter was dismissed in 1994. In September 2000 a further application for planning permission was refused, but she appealed and following a public inquiry in January 2002 an Inspector, in February 2002, allowed her appeal and granted her planning permission limited to her personal occupation and requiring removal of her caravan as soon as she no longer needed it. The reason given by the Inspector was that
    • "The status of [Mrs Porter] as a Gypsy, the lack of an alternative site for her to go to in the area and her chronic ill health constitute very special circumstances which are, in this case, sufficient to override national and statutory development GB policies."

    The local authority challenged the Inspector's decision in the Administrative Court before Judge Rich QC in September 2002, but unsuccessfully. Permission was given to the local authority to appeal to the Court of Appeal against his decision, and on 19 May 2003 the appeal was allowed. Meanwhile, however, the present proceedings had been initiated. The local authority provisionally decided, subject to legal advice, to seek an injunction on 13 January 1999. Application was duly made on 1 December 1999 and on 27 January 2000 Burton J granted an injunction requiring Mrs Porter to cease to use the land for the stationing of caravans on or before 27 January 2001. It was Mrs Porter's appeal against that decision which led to the judgment now under appeal before the House. It will be noted that planning permission had not been granted to Mrs Porter when Burton J and the Court of Appeal made their respective decisions.

  11. Mrs Porter was born in 1942. There was evidence before the trial judge that she suffered from chronic asthma, severe generalised osteo-arthritis and chronic urinary tract infection. Her mobility was poor as a result of her osteo-arthritis and asthma. She suffered from depression and was taking painkillers, antibiotics, antidepressants and medication for her asthma. Her general practitioner considered that eviction from the site would be detrimental to her health, which has worsened over the last few years.
  12. There were three residential Gypsy sites within the local authority's area, but all of them were full and had long waiting lists; there would be a delay of up to three years before a pitch was likely to become available.
  13. Planning control

  14. Over the past 60 years there has been ever-increasing recognition of the need to control the use and development of land so as to prevent inappropriate development and protect the environment. This is, inevitably, a sensitive process, since it constrains the freedom of private owners to use their own land as they wish. But it is a very important process, since control, appropriately and firmly exercised, enures to the benefit of the whole community.
  15. It is unnecessary for present purposes to do more than identify the rudiments of the current planning regime, now largely found in the Town and Country Planning Act 1990. The cornerstone of this regime, regulated by sections 55-106B in Part III of the Act, is the requirement in section 57(1) that planning permission be obtained for the carrying out of any development of land as defined in section 55. Applications are made to, and in the ordinary way determined in the first instance by, local planning authorities, which are local bodies democratically-elected and accountable. The responsibility of the local community for managing its own environment is integral to the system. But the local planning authority's decision is not final. An appeal against its decision lies to the Secretary of State, on the merits, which will be investigated by an expert, independent inspector empowered to hold an inquiry at which evidence may be received and competing interests heard before advice is tendered to the Secretary of State. The final decision on the merits rests with the Secretary of State, a political office-holder answerable to Parliament. The courts have no statutory role in the granting or refusing of planning permission unless, on purely legal grounds, it is sought to challenge an order made by the local planning authority or the Secretary of State: in such event section 288 of the Act grants a right of application to the High Court. In addition, there exists the general supervisory jurisdiction of the High Court, which may in this field as in others be invoked to control decisions which are made in bad faith, or perversely, or unfairly or otherwise unlawfully. But this is not a jurisdiction directed to the merits of the decision under review.
  16. The second crucial instrument of control provided by the Act is the enforcement notice, which local planning authorities are empowered to issue by section 172 where it appears to them that there has been a breach of planning control and that it is expedient to issue a notice. Once the notice has taken effect, it amounts to a mandatory order to do what the notice specifies as necessary to remedy the breach (section 173). Failure to comply may be penalised, on summary conviction, by a substantial fine, and on conviction on indictment by an unlimited fine (section 179(8)). Persistent non-compliance may give rise to repeated convictions (section 179(6)). The coercive effect of an enforcement notice may be reinforced by a stop notice, which the local planning authority may (save in the case of buildings used as dwelling houses) serve if they consider it expedient that any relevant activity should cease before the expiry of the period for compliance (section 183). Failure to comply may be visited with the same penalties as on non-compliance with an enforcement notice (section 187(2)), and persistent non-compliance may give rise to repeated convictions (section 187 (1A)). Again, however, the local planning authority's decision on enforcement is not final: a right of appeal to the Secretary of State lies against an enforcement notice (section 174). On appeal the merits of the planning situation may be fully explored and an application for planning permission may be made (section 174(2)(a)). In this instance also the control regime is entrusted to democratically-accountable bodies, the local planning authority and the Secretary of State. The role of the court is confined to determining a challenge on a point of law to a decision of the Secretary of State (section 289), and to its ordinary supervisory jurisdiction by way of judicial review.
  17. The means of enforcement available to local planning authorities under the 1990 Act and its predecessors, by way of enforcement orders, stop orders and criminal penalties, gave rise to considerable dissatisfaction. There were a number of reasons for this, among them the delay inherent in a process of application, refusal, appeal, continued user, enforcement notice, appeal; the possibility of repeated applications, curbed but not eliminated by section 70A of the 1990 Act; and the opportunities for prevarication and obstruction which the system offered. In the case of Gypsies, the problem was compounded by features peculiar to them. Their characteristic lifestyle debarred them from access to conventional sources of housing provision. Their attempts to obtain planning permission almost always met with failure: statistics quoted by the European Court of Human Rights in Chapman v United Kingdom (2001) 33 EHRR 399, page 420, paragraph 66, showed that in 1991, the most recent year for which figures were available, 90 per cent of applications made by Gypsies had been refused whereas 80 per cent of all applications had been granted. But for many years the capacity of sites authorised for occupation by Gypsies has fallen well short of that needed to accommodate those seeking space on which to station their caravans. Sedley J alluded to this problem in R v Lincolnshire County Council, Ex p Atkinson (1995) 8 Admin LR 529 at 533, in a passage quoted in Chapman at paragraph 45:
    • "It is relevant to situate this new and in some ways Draconic legislation in its context. For centuries the commons of England provided lawful stopping places for people whose way of life was or had become nomadic. Enough common land had survived the centuries of enclosure to make this way of life still sustainable, but by s.23 of the Caravan Sites and Control of Development Act 1960 local authorities were given power to close the commons to travellers. This they proceeded to do with great energy, but made no use of the concomitant power given to them by s.24 of the same Act to open caravan sites to compensate for the closure of the commons. By the Caravan Sites Act 1968, therefore, Parliament legislated to make the s.24 power a duty, resting in rural areas upon county councils rather than district councils (although the latter continued to possess the power to open sites). For the next quarter of a century there followed a history of non-compliance with the duties imposed by the Act of 1968, marked by a series of decisions of this court holding local authorities to be in breach of their statutory duty, to apparently little practical effect. The default powers vested in central government, to which the court was required to defer, were rarely if ever used."

    The essential problem was succinctly stated in a housing research summary, "Local Authority Powers for Managing Unauthorised Camping" (Office of the Deputy Prime Minister, No 90, 1998, updated 4 December 2000):

      "The basic conflict underlying the 'problem' of unauthorised camping is between Gypsies/Travellers who want to stay in an area for a period but have nowhere they can legally camp, and the settled community who, by and large, do not want Gypsies/Travellers camped in their midst. The local authority is stuck between the two parties, trying to balance the conflicting needs and often satisfying no-one."

  18. The perceived inadequacy of local authorities' enforcement powers led them to seek injunctive relief, whether in a relator action in the name of the Attorney-General (as in Attorney-General v Bastow [1957] 1 QB 514, a case involving caravans but not Gypsies), or by invoking the general injunctive power of the court (as in Manchester Corporation v Connolly [1970] Ch 420), or, later, under section 222 of the Local Government Act 1972 as in Waverley Borough Council v Hilden [1988] 1 WLR 246 and Mole Valley District Council v Smith (1992) 90 LGR 557). Dissatisfaction with the efficacy of measures to enforce planning control however persisted, and in July 1988 Mr Robert Carnwath QC was asked by the Secretary of State to examine the scope and effectiveness of existing enforcement provisions and recommend improvements.
  19. In his report ("Enforcing Planning Control", February 1989), Mr Carnwath acknowledged (page 21, paragraph 1.1) that the enforcement system had received a consistently bad press ever since the beginning of modern planning control in 1947. He recognised (page 24, paragraph 2.8) that
    • "The enforcement system therefore cannot be too rigid. There will always be difficult cases where there is a need to balance the interests of enforcement against the individual circumstances of a business or individual. The system needs to be flexible enough to accommodate such cases, while providing the teeth to secure effective action where it is justified. There will always be disagreement as to where the line is to be drawn."

    Mr Carnwath considered (page 41, paragraph 2.22) that the best approach lay in recognition of the injunction as a back-up to the normal statutory remedies, since

      "Use of the Courts ensures that both sides are fully protected, and that the remedies can be adapted to suit the needs of the case."

    He favoured a formalisation and clarification, but not a significant extension, of the existing law, to give statutory recognition to this "useful weapon in the planning armoury" (page 41, paragraph 2.23). His recommendation on this matter was expressed in these terms (pages 85-86, paragraphs 10.1-10.3):

      "10.1  As explained above (chapter 5, section 2), injunctions have proved a useful back-up to the statutory system in difficult cases. However, there are still doubts about the circumstances in which the remedy is available. In particular, it is unclear to what extent it is available to restrain an actual or threatened breach of planning control before it has become a criminal offence (following service of an enforcement notice or stop notice).

      10.2  In my view the authority should be able to apply for an injunction in respect of any breach or threatened breach of planning control, whether or not an enforcement notice or stop notice has been served. There are likely to be two sets of circumstances where it will be especially useful. First, it can provide an urgent remedy in cases where there is a serious threat to amenity, to deal with either a threatened breach (before a stop notice can be served ) or an actual breach (for example, where there are problems in preparing an effective enforcement and stop notice in time). Secondly, it can provide a stronger back-up power in cases where the existing remedies have proved, or are thought likely to be, inadequate. The latter function is well recognised in existing case-law, and has a precedent, for example, in section 58(8) of the Control of Pollution Act 1974.

      10.3  I think it would be a mistake to attempt to prescribe too closely the circumstances in which the remedy would be available, or the forms of order which could be granted. Experience of decisions over the last few years (see Chapter 5 above) shows that the merit of the remedy is its flexibility and its ability to evolve to meet changing needs. What is required is its recognition in the Act as a normal back-up to the other remedies, and acceptance that it is for the authority to judge (subject to the ordinary judicial review criteria of reasonableness) when its use is appropriate. The Court already has a wide discretion as to the terms on which an order is to be made. In cases where an order is made in advance of an enforcement or stop notice, the terms could include an undertaking by the authority to serve such notices, so that the ordinary procedures would be available for determining the merits and protecting the recipient."

  20. Legislative effect was given to Mr Carnwath's recommendation by section 187B, inserted into the 1990 Act by section 3 of the Planning and Compensation Act 1991, which became effective on 2 January 1992. The correct interpretation and application of this section lie at the heart of these appeals. It provides:
    • "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.

      (3)  Rules of court may provide for such an injunction to be issued against a person whose identity is unknown.

      (4)  In this section 'the court' means the High Court or the county court."

  21. Since the enactment of the section the Department of the Environment has given guidance to local planning authorities on the exercise of enforcement powers which, although inadmissible to construe the section, throws light on what was officially understood to be its effect. Thus in circular 21/91 ("Planning and Compensation Act 1991: Implementation of the Main Enforcement Provisions", 16 December 1991) it was stated:
    • "7  The decision whether to grant an injunction is always solely a matter for the court, in its absolute discretion in the circumstances of any case. Nevertheless, it is unlikely that the court will grant an injunction unless all the following criteria are satisfied:-

        (1) the LPA have taken account of what appear to be the relevant considerations in deciding that it is necessary or expedient to initiate injunctive proceedings;

        (2) there is clear evidence that a breach of planning, listed building, or conservation area control, or unauthorised work on a protected tree, has already occurred, or is likely to occur, on land in the LPA's area;

        (3) injunctive relief is a commensurate remedy in the circumstances of the particular case; . . .

      Even when all these criteria are satisfied, the court may decide that the circumstances of the case do not, on the balance of convenience, justify granting an injunction. If an injunction is granted, the court may suspend its effect until a specified later date."

    This advice was substantially repeated in circular 10/97 ("Enforcing Planning Control: Legislative Provisions and Procedural Requirements", 31 July 1997, paragraphs 5.5-5.10), with the substitution of "proportionate" for "commensurate" but again with reference to the "absolute" discretion of the court. In chapter 9 of Enforcing Planning Control: Good Practice Guide for Local Planning Authorities (1997), the Department of Environment, Transport and the Regions addressed the topic again:

      "The personal nature of injunctive proceedings

      9.9.  Unlike an enforcement notice or a stop notice, a planning enforcement injunction is not primarily directed at the parcel of land on which the breach of control is taking place. Injunctive proceedings are 'personal' in the sense that the LPA seeks to obtain an order from the court to restrain a person, or a number of people, who must each be cited by name in the LPA's application, from carrying on the breach. It follows that, in assessing what is called 'the balance of convenience' in the decision whether to grant injunctive relief on the LPA's application, the court will have to weigh the public interest (which the LPA represents) against the private interest of the person or people whom the LPA seek to restrain. This differs from, for example, the process of an enforcement appeal where the decision-maker is concerned with whether the appeal should succeed on its legal or planning merits. And, even if the court concludes that an interlocutory injunction should be granted, its effect may be suspended for a specified period so that the defendant has time in which to make suitable alternative arrangements for whatever activity is to be restrained. The court may require the plaintiff (the LPA) and the defendant to appear in person at the end of an initial period of suspension of an injunction, so that the balance of convenience can be reassessed."

    The Court of Appeal decision

  22. In the Court of Appeal separate teams of counsel represented the appellant Gypsies and the respondent local authorities and the submissions made on each side were not to identical effect. Simon Brown LJ summarised the Gypsies' argument in paragraphs 29-34 of his judgment. In broad summary the argument, in all essentials the argument repeated by Mr Charles George QC in the House, was to the following effect. Section 187B gives the judge a discretion, to be exercised as an original jurisdiction not a review power. Since injunctions are likely to prove the most effective way of remedying breaches of planning control, because attended by the most severe sanctions, including imprisonment, they should be granted only where plainly appropriate and where the court is willing to contemplate the imposition of severe penalties. If the court is unwilling to commit it should be unwilling to enjoin. In cases such as Mole Valley District Council v Smith (1992) 90 LGR 557 and Hambleton District Council v Bird [1995] 3 PLR 8 the court had taken too narrow a view of its discretion. The court (paragraph 31)
    • "would only be prepared to grant injunctive relief in cases which the court itself regarded as clear, cases where it was quite satisfied first that the planning authority (whether the district council or the Secretary of State/inspector on appeal) had properly reached a final conclusion that the gipsies' continuing occupation of the site could no longer be tolerated in the public interest, and secondly that it was appropriate to enforce their removal by injunction even though, in a case where no alternative sites were available, that would drive the gipsies either onto the roads, into homelessness accommodation (see Chapman's case 33 EHRR 399, 416, para 54) or, on non-compliance with the injunction, into prison."

    Whatever the position before the Human Rights Act 1998, the court must now address the issues arising under article 8(2) of the European Convention on Human Rights and reach its own decision on whether the Gypsies' removal from the site is proportionate to the public interest in preserving the environment. This did not mean that the court would pay no heed to the decisions of local planning authorities: issues as to whether or not planning permission should be granted are exclusively a matter for them, and the planning history of the site, including any recent decisions, will be highly relevant. Respect should be accorded to the decisions of a democratically accountable body. But it is still for the court to reach its own independent conclusion on the proportionality of the relief sought to the object to be attained.

  23. In the Court of Appeal Mr Timothy Straker QC represented the three local authorities now before the House and Simon Brown LJ summarised his essential argument as being (paragraph 35)
    • "that the judge exercising his section 187B jurisdiction is more or less bound to grant an injunction unless the local planning authority's application can be shown to be flawed on Wednesbury grounds."

    The court's function is supervisory. The power to grant an injunction should be exercised in support of planning control. The Mole Valley and Hambleton cases were rightly decided. Not until the stage of committal for breach of an injunction is the court entitled to reach an independent view on proportionality. At the injunction stage the court should consider only whether the Gypsies should leave the site, not whether they should suffer serious penalty if they fail to do so. The court's role is unaffected by the Human Rights Act 1998. Reliance was placed on the decision of the House in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389, [2001] UKHL 23.

  24. The Court of Appeal's ruling on the approach to section 187B was expressed in five paragraphs of Simon Brown LJ's judgment, which I must quote in extenso:
    • "The approach to section 187B

      38.  I would unhesitatingly reject the more extreme submissions made on either side. It seems to me perfectly clear that the judge on a section 187B application is not required, nor even entitled, to reach his own independent view of the planning merits of the case. These he is required to take as decided within the planning process, the actual or anticipated breach of planning control being a given when he comes to exercise his discretion. But it seems to me no less plain that the judge should not grant injunctive relief unless he would be prepared if necessary to contemplate committing the defendant to prison for breach of the order, and that he would not be of this mind unless he had considered for himself all questions of hardship for the defendant and his family if required to move, necessarily including, therefore, the availability of suitable alternative sites. I cannot accept that the consideration of those matters is, as Burton J suggested was the case in the pre-1998 Act era, 'entirely foreclosed' at the injunction stage. Questions of the family's health and education will inevitably be of relevance. But so too, of course, will countervailing considerations such as the need to enforce planning control in the general interest and, importantly therefore, the planning history of the site. The degree and flagrancy of the postulated breach of planning control may well prove critical. If conventional enforcement measures have failed over a prolonged period of time to remedy the breach, then the court would obviously be the readier to use its own, more coercive powers. Conversely, however, the court might well be reluctant to use its powers in a case where enforcement action had never been taken. On the other hand, there might be some urgency in the situation sufficient to justify the pre-emptive avoidance of an anticipated breach of planning control. Considerations of health and safety might arise. Preventing a gipsy moving onto the site might, indeed, involve him in less hardship than moving him out after a long period of occupation. Previous planning decisions will always be relevant; how relevant, however, will inevitably depend on a variety of matters, including not least how recent they are, the extent to which considerations of hardship and availability of alternative sites were taken into account, the strength of the conclusions reached on land use and environmental issues, and whether the defendant had and properly took the opportunity to make his case for at least a temporary personal planning permission.

      39  Relevant too will be the local authority's decision under section 187B(1) to seek injunctive relief. They, after all, are the democratically elected and accountable body principally responsible for planning control in their area. Again, however, the relevance and weight of their decision will depend above all on the extent to which they can be shown to have had regard to all the material considerations and to have properly posed and approached the article 8(2) questions as to necessity and proportionality.

      40  Whilst it is not for the court to question the correctness of the existing planning status of the land, the court in deciding whether or not to grant an injunction (and, if so, whether and for how long to suspend it) is bound to come to some broad view as to the degree of environmental damage resulting from the breach and the urgency or otherwise of bringing it to an end. In this regard the court need not shut its mind to the possibility of the planning authority itself coming to reach a different planning judgment in the case.

      41  True it is, as Mr McCracken points out, that, once the planning decision is taken as final, the legitimate aim of preserving the environment is only achievable by removing the gipsies from site. That is not to say, however, that the achievement of that aim must always be accepted by the court to outweigh whatever countervailing rights the gipsies may have, still less that the court is bound to grant injunctive (least of all immediate injunctive) relief. Rather I prefer the approach suggested by the 1991 Circular: the court's discretion is absolute and injunctive relief is unlikely unless properly thought to be 'commensurate' - in today's language, proportionate. The approach in the Hambleton case [1995] 3 PLR 8 seems to me difficult to reconcile with that circular. However, whatever view one takes of the correctness of the Hambleton approach in the period prior to the coming into force of the Human Rights Act 1998, to my mind it cannot be thought consistent with the court's duty under section 6(1) to act compatibly with convention rights. Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the public interest objective sought - here the safeguarding of the environment - but also that it does not impose an excessive burden on the individual whose private interests - here the gipsy's private life and home and the retention of his ethnic identity - are at stake.

      42  I do not pretend that it will always be easy in any particular case to strike the necessary balance between these competing interests, interests of so different a character that weighing one against the other must inevitably be problematic. This, however, is the task to be undertaken by the court and, provided it is undertaken in a structured and articulated way, the appropriate conclusion should emerge."

    Mole Valley District Council v Smith

  25. Before considering the merits of the competing arguments and the correctness of the guidance given by the Court of Appeal, account should be taken of earlier Court of Appeal authority. Mole Valley District Council v Smith (1992) 90 LGR 557 was one of two appeals heard and reported together. The other was Reigate and Banstead Borough Council v Brown, which involved different Gypsies and a different (although neighbouring) local authority.
  26. In the Mole Valley case the Gypsies appealed against the grant of an injunction by Hoffmann J at first instance under section 222 of the 1972 Act. The facts disclosed a history of unsuccessful enforcement by the local planning authority and non-compliance by the Gypsies over several years (pages 565-566). The principal issue before the Court of Appeal was whether the Gypsies could successfully resist eviction by the local planning authority on the ground that a different body, the county council, had fallen down on its statutory duty to provide enough pitches to accommodate the Gypsies seeking them (pages 559-560). Lord Donaldson of Lymington MR held (page 568) that they could not, a conclusion shared by Balcombe LJ (page 569) and Stuart-Smith LJ (page 570). The Master of the Rolls approved a passage in the judgment of Hoffmann J (page 567) where he had said:
    • "There can be no doubt that requiring [the defendants] to leave the site would cause considerable hardship. This court, however, is not entrusted with a general jurisdiction to solve social problems. The striking of a balance between the requirements of planning policy and the needs of these defendants is a matter which, in my view, has been entrusted to other authorities."

    The Court of Appeal did not approach this case as one turning on hardship to the Gypsies, which was not relied on as a ground of appeal. No reference was made to age, infirmity, ill-health or the reasonable needs of children. The Court of Appeal furthermore understood that a number of additional pitches would become available in the reasonably near future (page 563), declined to shorten the period allowed by the judge for complying with the injunction (pages 568-569) and envisaged that in deciding whether to enforce the injunction the local planning authority would have regard to the availability of alternative authorised pitches "very shortly thereafter" (page 569).

  27. In the Reigate and Banstead case the principal issue was the same (pages 559-560) but the evidence of unsuccessful enforcement and non-compliance was even stronger (pages 563-565). There was little prospect of additional pitches become available in this area in the near future (page 563). In this case the Gypsies did rely on what they claimed would be exceptional hardship if interlocutory relief were granted pending trial (page 559), but no allusion was made to this ground of appeal in the judgments and no reference was made to the personal circumstances of the Gypsies. The court granted the same period of suspension (pages 568-569), and made the same observation about enforcement (page 569), envisaging, it would seem, that these Gypsies would take advantage of the additional pitches expected to become available nearby.
  28. The ratio of both decisions was that the problems confronting the Gypsies, the local planning authorities and the county council (page 566)
    • "are social in nature and fall to be solved in the context of town and country planning policies. These are matters ultimately for the Secretary of State, subject only to the court's supervisory jurisdiction by means of judicial review which is not invoked in these proceedings."

    Hambleton District Council v Bird

  29. In this case (reported at [1995] 3 PLR 8) the local authority appealed against the refusal of the trial judge to grant an injunction under section 187B to restrain the respondent Gypsies, a large family, from continuing to use land, which they owned, for the purpose of siting residential caravans. The Gypsies had used the site, in breach of planning control, for a number of years. Applications for planning permission had been refused and an enforcement notice had proved ineffective, as had prosecutions for non-compliance (pages 9-11). In declining to grant an injunction the judge had referred to the financial burden on the local authority of housing the Gypsies, money which the judge plainly thought could be better spent (page 12), and he considered it wrong to grant an injunction, which would cause "gross disruption to no great public benefit" when the Gypsies were contemplating a further planning application which might arguably succeed (page 12).
  30. Giving the leading judgment in the Court of Appeal, Pill LJ made detailed reference to the Mole Valley case, and also to a decision of Scott J in Waverley Borough Council v Hilden [1988] 1 WLR 246, 264. He criticised the trial judge for taking it upon himself to assess the benefits and disbenefits to the public as a whole and to exercise the policy function of planning and housing authorities (page 15). He also held (page 15) that the possibility of a future grant of planning permission was not a legitimate reason for refusing an injunction to restrain a breach of the law. These errors were held to vitiate the judge's exercise of discretion, and exercising a fresh discretion Pill LJ thought it clear that an injunction should be granted, a conclusion with which Sir Ralph Gibson (page 16) and Balcombe LJ (page 18) agreed. In the course of his judgment Pill LJ made no reference to hardship. He accepted that at the date of trial no alternative site was available (page 12), although Sir Ralph Gibson thought it clear that such a site would before long become available, and he discounted the Gypsies' objections to it (page 17).
  31. Section 187B
  32. The jurisdiction of the court under section 187B is an original, not a supervisory, jurisdiction. The supervisory jurisdiction of the court is invoked when a party asks it to review an exercise of public power. A local planning authority seeking an injunction to restrain an actual or apprehended breach of planning control does nothing of the kind. Like other applicants for injunctive relief it asks the court to exercise its power to grant such relief. It is of course open to the defendant, in resisting the grant of an injunction, to seek to impugn the local authority's decision to apply for an injunction on any of the conventional grounds which may be relied on to found an application for judicial review. As Carnwath J observed in R v Basildon District Council, Ex p Clarke [1996] JPL 866, 869:
    • "If something had gone seriously wrong with the procedure, whether in the initiation of the injunction proceedings or in any other way, it was difficult to see why the County Court judge could not properly take it into account in the exercise of his discretion to grant or refuse the injunction."

    But a defendant seeking to resist the grant of an injunction is not restricted to reliance on grounds which would found an application for judicial review.

  33. The court's power to grant an injunction under section 187B is a discretionary power. The permissive "may" in subsection (2) applies not only to the terms of any injunction the court may grant but also to the decision whether it should grant any injunction. It is indeed inherent in the concept of an injunction in English law that it is a remedy that the court may but need not grant, depending on its judgment of all the circumstances. Underpinning the court's jurisdiction to grant an injunction is section 37(1) of the Supreme Court Act 1981, conferring power to do so "in all cases in which it appears to the court to be just and convenient to do so". Thus the court is not obliged to grant an injunction because a local authority considers it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction and so makes application to the court. No assistance is gained from R v Wicks [1998] AC 92, relied on by the local authorities, where it was held to be too late to challenge an enforcement notice in criminal proceedings, a situation quite unlike the present.
  34. The court's discretion to grant or withhold relief is not however unfettered (and by quoting the word "absolute" from the 1991 circular in paragraph 41 of his judgment Simon Brown LJ cannot have intended to suggest that it was). The discretion of the court under section 187B, like every other judicial discretion, must be exercised judicially. That means, in this context, that the power must be exercised with due regard to the purpose for which the power was conferred: to restrain actual and threatened breaches of planning control. The power exists above all to permit abuses to be curbed and urgent solutions provided where these are called for. Since the facts of different cases are infinitely various, no single test can be prescribed to distinguish cases in which the court's discretion should be exercised in favour of granting an injunction from those in which it should not. 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 will provide effective restraint (City of London Corporation v Bovis Construction Ltd [1992] 3 All ER 697, 714), that will point strongly towards the grant of an injunction. So will a history of unsuccessful enforcement and persistent non-compliance, as will evidence that the defendant has played the system by wilfully exploiting every opportunity for prevarication and delay, although section 187B(1) makes plain that a local planning authority, in applying for an injunction, need not have exercised nor propose to exercise any of its other enforcement powers under Part VII of the Act. In cases such as these the task of the court may be relatively straightforward. 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.
  35. As shown above the 1990 Act, like its predecessors, allocates the control of development of land to democratically-accountable bodies, local planning authorities and the Secretary of State. Issues of planning policy and judgment are within their exclusive purview. As Lord Scarman pointed out in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132, 141, "Parliament has provided a comprehensive code of planning control". In R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389, [2001] UKHL 23, paragraphs 48, 60, 75, 129, 132, 139-140, 159 the limited role of the court in the planning field is made very clear. An application by a local planning authority under section 187B is not an invitation to the court to exercise functions allocated elsewhere. Thus it could never be appropriate for the court to hold that planning permission should not have been refused or that an appeal against an enforcement notice should have succeeded or (as in Hambleton [1995] 3 PLR 8) that a local authority should have had different spending priorities. But the court is not precluded from entertaining issues not related to planning policy or judgment, such as the visibility of a development from a given position or the width of a road. Nor need the court refuse to consider (pace Hambleton) the possibility that a pending or prospective application for planning permission may succeed, since there may be material to suggest that a party previously unsuccessful may yet succeed, as the cases of Mr Berry and Mrs Porter show. But all will depend on the particular facts, and the court must always, of course, act on evidence.
  36. In Westminster City Council v Great Portland Estates plc [1985] AC 661, 670 Lord Scarman drew attention to the relevance to planning decisions, on occasion, of personal considerations:
    • "Personal circumstances of an occupier, personal hardship, the difficulties of businesses which are of value to the character of a community are not to be ignored in the administration of planning control. It would be inhuman pedantry to exclude from the control of our environment the human factor. The human factor is always present, of course, indirectly as the background to the consideration of the character of land use. It can, however, and sometimes should, be given direct effect as an exceptional or special circumstance. But such circumstances, when they arise, fall to be considered not as a general rule but as exceptions to a general rule to be met in special cases. If a planning authority is to give effect to them, a specific case has to be made and the planning authority must give reasons for accepting it. It follows that, though the existence of such cases may be mentioned in a plan, this will only be necessary where it is prudent to emphasise that, notwithstanding the general policy, exceptions cannot be wholly excluded from consideration in the administration of planning control."

    Ouseley J made the same point more recently in Basildon District Council v The Secretary of State for the Environment, Transport and the Regions [2001] JPL 1184, an appeal under section 288 of the 1990 Act, when he said in paragraph 33 of his judgment:

      "From that analysis I conclude, first, that quite apart from any considerations of common humanity, the needs of these particular gypsy families were a material consideration because they had a need for this development in this location. Those personal circumstances entitled the Secretary of State to have regard to them as relevant to the decision he had to make in the public interest about the use of the land for the stationing of residential caravans. Their particular need for stability in the interest of the education of the younger children can also reasonably be seen as an aspect of the wider land use interest in the provision of gypsy sites, which interest includes the need for stable educational opportunities. There is also a public interest in the planning system providing stable educational opportunities for gypsy families, including these gypsy families."

    Thus the Secretary of State was entitled to have regard to the personal circumstances of the Gypsies, as he did in the cases of Mr Berry and Mrs Porter. When application is made to the court under section 187B, the evidence will usually make clear whether, and to what extent, the local planning authority has taken account of the personal circumstances of the defendant and any hardship an injunction may cause. If it appears that these aspects have been neglected and on examination they weigh against the grant of relief, the court will be readier to refuse it. If it appears that the local planning authority has fully considered them and nonetheless resolved that it is necessary or expedient to seek relief, this will ordinarily weigh heavily in favour of granting relief, since the court must accord respect to the balance which the local planning authority has struck between public and private interests. It is, however, ultimately for the court to decide whether the remedy sought is just and proportionate in all the circumstances, and there is force in the observation attributed to Vaclav Havel, no doubt informed by the dire experience of central Europe: "The Gypsies are a litmus test not of democracy but of civil society" (quoted by McCracken and Jones, counsel for Hertsmere in the fourth appeal, "Article 8 ECHR, Gypsies, and Some Remaining Problems after South Buckinghamshire" [2003] JPL 382, 396, f.n. 99).

  37. When granting an injunction the court does not contemplate that it will be disobeyed: In re Liddell's Settlement Trusts [1936] Ch 365, 373-374; Castanho v Brown & Root (UK) Ltd [1981] AC 557, 574. Apprehension that a party may disobey an order should not deter the court from making an order otherwise appropriate: there is not one law for the law-abiding and another for the lawless and truculent. When making an order, the court should ordinarily be willing to enforce it if necessary. The rule of law is not well served if orders are made and disobeyed with impunity. These propositions however rest on the assumption that the order made by the court is just in all the circumstances and one with which the defendant can and reasonably ought to comply, an assumption which ordinarily applies both when the order is made and when the time for enforcement arises. Since a severe financial penalty may be imposed for failure to comply with an enforcement notice, the main additional sanction provided by the grant of an injunction is that of imprisonment. The court should ordinarily be slow to make an order which it would not at that time be willing, if need be, to enforce by imprisonment. But imprisonment in this context is intended not to punish but to induce compliance, reinforcing the requirement that the order be one with which the defendant can and reasonably ought to comply. The court ought not to face the dilemma addressed by Staughton LJ in Guildford Borough Council v Smith [1994] JPL 734, 739.
  38. There is no reason to doubt that the Mole Valley, Reigate and Banstead (1992) 90 LGR 557 and Hambleton [1995] 3 PLR 8 were rightly decided on their facts, but they should now be read subject to this opinion.
  39. Article 8 of the European Convention on Human Rights

  40. If section 187B is interpreted and applied in accordance with the principles adumbrated in the foregoing paragraphs, it is very questionable whether article 8 of the European Convention has any bearing on the court's approach to an application under the section. But since the European Court of Human Rights has given judgment in two cases involving Gypsies in the United Kingdom, brief reference should be made to those cases. In both it was effectively common ground that enforcement action by the local planning authority to secure the removal of the Gypsy from a site involved an interference by a public authority with the Gypsy's right to respect for her home, that such interference was in accordance with the law and that the measures pursued aims entitled to recognition under the Convention as legitimate. The issue was whether measures were "necessary in a democratic society" or, differently expressed, whether the means employed to pursue those legitimate aims were proportionate.
  41. In Buckley v United Kingdom (1996) 23 EHRR 101 the Commission concluded, by a narrow majority (page 120, paragraphs 84-86), that the measures were excessive and disproportionate. Even allowing for the margin of appreciation enjoyed by the national authorities, the Commission found that the interests of the applicant outweighed the general interest. The Court, also by a majority, took the opposite view: it concluded (page 132, paragraph 84) that the responsible planning authorities had arrived at their decision after weighing in the balance the various competing interests at issue; that it was not for the Court to sit in appeal on the merits of that decision; that the reasons relied on by the planning authorities were relevant and sufficient; and that the means employed to achieve the legitimate aims pursued could not be regarded as disproportionate.
  42. A majority of the Court again rejected the complaint of the applicant in Chapman v United Kingdom (2001) 33 EHRR 399. The report of this case contains a helpful and detailed summary of the factual background and also makes reference to the Framework Convention for the Protection of National Minorities, which the United Kingdom ratified and which came into force in May 1998. In this case the Commission found, by a majority, that there had been no violation of Mrs Chapman's rights under article 8 (page 420, paragraph 69), and a majority of the Court agreed (page 431, paragraph 115). The Court recognised (page 421, paragraph 73) that Mrs Chapman's occupation of her caravan was an integral part of her ethnic identity as a Gypsy but acknowledged (pages 425-426, paragraph 92) that as a supranational court it was ill-equipped to assess matters within the proper purview of national authorities and did not accept (page 426, paragraph 94) that a consensus had emerged on the practical steps necessary to give effect to the Framework Convention. It envisaged (page 426, paragraph 95) that problems might arise under article 14 if Gypsies were treated differently from non-Gypsies. In rejecting Mrs Chapman's complaint the Court (page 430, paragraph 113) was not persuaded that there were no alternatives available to her other than remaining in occupation of land without planning permission in a Green Belt area and held (page 431, paragraph 115) that
    • "The humanitarian considerations which might have supported another outcome at national level cannot be used as the basis of a finding by the Court which would be tantamount to exempting the applicant from the implementation of the national planning laws and obliging governments to ensure that every gypsy family has available for its use accommodation appropriate to its needs. Furthermore, the effect of these decisions cannot on the facts of this case be regarded as disproportionate to the legitimate aim being pursued."

  43. These cases make plain that decisions properly and fairly made by national authorities must command respect. They also make plain that any interference with a person's right to respect for her home, even if in accordance with national law and directed to a legitimate aim, must be proportionate. As a public authority, the English court is prohibited by section 6(1) and (3)(a) of the Human Rights Act 1998 from acting incompatibly with any Convention right as defined in the Act, including article 8. It follows, in my opinion, that when asked to grant injunctive relief under section 187B the court must consider whether, on the facts of the case, such relief is proportionate in the Convention sense, and grant relief only if it judges it to be so. Although domestic law is expressed in terms of justice and convenience rather than proportionality, this is in all essentials the task which the court is in any event required by domestic law to carry out. I should add that while nothing in the Court of Appeal judgment in Sheffield City Council v Smart [2002] LGR 476 is, as I read it, inconsistent with what is said above, I should be wary of concluding that any action by a public authority seeking possession of residential property occupied by a defendant engages the operation of article 8.
  44. Conclusion

  45. The guidance given by the Court of Appeal in the judgment of Simon Brown LJ quoted in paragraph 20 above was in my opinion judicious and accurate in all essential respects and I would endorse it.
  46. In the Berry case the Court of Appeal concluded (paragraph 49) that the trial judge had erred in regarding the Chapman case as effectively determinative of the application before him. I find no fault with that conclusion. I would accordingly dismiss this appeal with costs, and affirm the Court of Appeal's order that the matter be remitted to the Queen's Bench Division for the underlying application for an injunction to be determined.
  47. In the Searle case I would again dismiss the appeal, but with no order for costs and no order for remission. The Court of Appeal was entitled to conclude (paragraph 44) that the trial judge had taken too restricted a view of the discretion which he was called upon to exercise.
  48. In the Porter case I would dismiss the appeal and make the same orders as in the Berry case. The judge was wrong to regard all questions of hardship as "entirely foreclosed" by the Mole Valley (1992) 90 LGR 557 and Hambleton [1995] 3 PLR 8 decisions, as the Court of Appeal rightly held (paragraph 43).
  49. I have had the advantage of reading in draft the opinions of my noble and learned friends with which I agree.
  50. LORD STEYN

    My Lords,

  51. The question is how section 187B of the Town and Country Planning Act 1990 (as inserted in the 1990 Act by the Planning and Compensation Act 1991) should be interpreted. Section 187B reads as follows:
    • "(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.

      (3)  Rules of court may provide for such an injunction to be issued against a person whose identity is unknown.

      (4)  In this section 'the court' means the High Court or the county court."

    The Civil Procedure Rules 1998 make the provision contemplated by subsection (3): RSC, Ord 110, r 1; CCR, Ord 49, r 7.

  52. The question of interpretation before the Court of Appeal was whether (as three local planning authorities contended) it is beyond the power of the court under section 187B(2) to take into account in the exercise of its discretion the hardship likely to be caused by an injunction to vacate land in the case of a defendant who was in ill health and had nowhere else to go. Counsel for the local authorities acknowledged that in accordance with the law as stated in Westminster City Council v Great Portland Estates plc [1985] AC 661 such matters are relevant to the decisions of local authorities and the Secretary of State. Overruling first instance decisions the Court of Appeal held that such matters may also be relevant to the exercise of the discretion of the court under section 187B and it remitted the decisions for rehearing at first instance: South Buckinghamshire District Council v Porter [2002] 1 WLR 1359. The local authorities now challenge the decision of the Court of Appeal.
  53. The setting of section 187B is as follows. By the 1980s it had become a notorious fact that determined individuals and enterprises could, by playing the system with the aid of lawyers, frustrate the implementation of valid planning decisions for many years. It was not only old people in caravans which caused the problem. More frequently flagrant and persistent breaches were perpetrated by entrepreneurs for commercial profit. It is true that the 1990 Act provides for a system of enforcement notices which if ignored may lead to a prosecution: section 171A. The 1990 Act also contains provisions for the service of stop notices: section 183(1). These powers were supported by the power of the Attorney General on relation of a local authority to claim an injunction restraining a breach of planning law: Attorney General v Bastow [1957] 1 QB 514. This power was supplemented by section 222 of the Local Government Act 1972 as amended. Section 222(1) provides:
    • "Where a local authority consider it expedient for the promotion or protection of the interests of the inhabitants of their area-

        (a) they may prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings, may institute them in their own name, and

        (b) they may, in their own name, make representations in the interests of the inhabitants at any public inquiry held by or on behalf of any Minister or public body under any enactment."

    There was nevertheless a strong perception that the planning system was systematically abused and that it required more effective enforcement.

  54. This led to the Report by Robert Carnwath QC, entitled Enforcing Planning Control, which was published in February 1989. Paragraph 10.3 of the Report described the supplemental function of injunctions:
    • "I think it would be a mistake to attempt to prescribe too closely the circumstances in which the remedy would be available, or the forms of order which could be granted. Experience of decisions over the last few years . . . shows that the merit of the remedy is its flexibility and its ability to evolve to meet changing needs. What is required is its recognition in the Act as a normal back-up to the other remedies, and acceptance that it is for the authority to judge (subject to the ordinary judicial review criteria of reasonableness) when its use is appropriate. The court already has a wide discretion as to the terms on which an order is to be made. In cases where an order is made in advance of an enforcement or stop notice, the terms could include an undertaking by the authority to serve such notices, so that the ordinary procedures would be available for determining the merits and protecting the recipient."

      (Emphasis added)

    Mr Carnwath's recommendation was:

      "Recommendation (11) I recommend that there be an express power for authorities exercising planning functions to apply to the High Court or County Court for an injunction to restrain any threatened or actual breach of planning control (whether or not an enforcement or stop notice has been served), where they consider it necessary or expedient in order to prevent serious damage to amenity or otherwise to supplement the powers available under the Act."

    It will be noted that the language of section 187B follows the wording of recommendation 11 to a substantial extent.

  55. Counsel for the local authorities fastened on to the italicised words in paragraph 10.3 to argue that it is the exclusive task of democratically elected planning authorities to weigh issues of personal hardship against the public interest in enforcing planning law. Taken in isolation there may be some logical force in this argument. The main emphasis of the Carnwath Report was on the public interest in enforcing planning. But Mr Carnwath did not ignore considerations of personal hardship. In para 2.8 (at p 24) he said:
    • "The enforcement system . . . cannot be too rigid. There will always be difficult cases where there is a need to balance the interests of enforcement against the individual circumstances of a business or individual. The system needs to be flexible enough to accommodate such cases, while providing the teeth to secure effective action where it is justified. There will always be disagreement as to where the line is to be drawn."

    In para 2.22 (at p 41) he observed that "use of the courts ensures that both sides are fully protected". In para 4.2 (at p 58) he emphasised the value of "a flexible system of interim remedies - based on the balance of convenience …". The support for the position of the local authorities in the Carnwath Report is therefore fragile.

  56. Next counsel for the local authorities relied on dicta in the House of Lords, in diverse contexts, which emphasise that, subject to judicial review, the planning system is essentially one administered by democratically elected authorities: Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132; Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759; R v Wicks [1998] AC 92; R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and Regions [2001] 2 WLR 1389. These dicta do not directly or by useful analogy throw any light on the amplitude of the court's jurisdiction to grant an injunction operating in personam requiring a defendant to vacate land.
  57. Counsel for the local authorities put forward a related point based on the structure of the 1990 Act. He submitted in his printed case, and in oral argument, that it is for the local planning authority to determine whether an injunction is appropriate, and for the court, exercising a limited review jurisdiction, to grant an injunction in terms suited to restricting the relevant breach. I would reject this argument. It depends on interpolating words into the language of section 187B(2) which are ill suited to the context. Under section 187B(2) the court is not exercising a review jurisdiction: the coercive power conferred by statute is an original jurisdiction. Moreover, the remedy is an equitable one, which prima facie carries with it the notion of a broad discretion.
  58. The starting point must be the language of section 187B read in the context of its purpose viz in the words of the Carnwath Report that "use of the courts ensures that both sides are fully protected" (para 2.22, at p 41). The argument of the local authorities that consideration of questions of hardship by them means that this aspect may not be considered by the court under section 187B sits uneasily with the breadth of the statutory language. The critical provision is subsection (2) which provides that the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach. "May" does not mean "shall". The notion of "appropriate" relief necessarily involves an exercise of judgment weighing the factors for and against the grant of an injunction. There is not a hint of the restriction of the court's ordinary powers to consider logically relevant countervailing considerations at the stage of the grant of an injunction.
  59. The local authority is empowered to apply for an injunction under section 187B(1) whenever it considers it "necessary or expedient" to do so. I would not accept a tentative suggestion in argument that "or" in this phrase could be read as "and". In my view the local authority may apply for an injunction if it considers it "expedient", that is convenient, to do so. It is not in doubt that the local authority may take into consideration questions of hardship. But the independent criterion of expediency suggests that the intent was that the local authority is entitled to take the view that notwithstanding marked personal hardship "we will put the matter before the court for it to decide on all countervailing issues". The Encyclopaedia of Planning Law rightly points out that section 187B(1) is only "a deliberately loose entry barrier and is not the criterion upon which the court is required to act": P187B.09.
  60. Procedural considerations pull in the same direction. There may be a delay between the decision of the local authority and the hearing of application for an injunction by the court. During this period the personal circumstances of a defendant may change adversely, eg the individual may suffer a stroke or a heart attack. On the interpretation of the local authorities the solution is the contrived one that the matter should be adjourned for the local authority to reconsider the decision already taken. If the Court of Appeal's decision is correct, the solution is simple and straightforward: the court will consider the case in the round as it is presented to it on the day of the hearing.
  61. There is an even more important factor to be taken into account. The terms of an injunction must be strictly observed. The potential penalties upon a breach of an injunction are considerable. The local authorities argue that, while personal hardship may not be taken into account by the court considering the grant of an injunction, the court will be able to do so in considering what penalties to impose in committal proceedings. The concession is, of course, inevitable. But it results in the situation that, even in a case where the judge would not contemplate sending a defendant to prison for a breach, he must nevertheless impose an injunction carrying that threat. Such an approach does not advance the rule of law. It tends to bring the law into disrepute. In the Court of Appeal Simon Brown LJ found the right balance. He observed, at p 1377 B-D, para 38:
    • "It seems to me perfectly clear that the judge on a section 187B application is not required, nor even entitled, to reach his own independent view of the planning merits of the case. These he is required to take as decided within the planning process, the actual or anticipated breach of planning control being given when he comes to exercise his discretion. But it seems to me no less plain that the judge should not grant injunctive relief unless he would be prepared if necessary to contemplate committing the defendant to prison for breach of the order, and that he would not be of this mind unless he had considered for himself all questions of hardship for the defendant and his family if required to move, necessarily including, therefore, the availability of suitable alternative sites. I cannot accept that the consideration of those matters is, as Burton J suggested [in South Buckinghamshire District Council v Porter] was the case in the pre-1998 Act era, 'entirely foreclosed' at the injunction stage. Questions of the family's health and education will inevitably be of relevance. But so too, of course, will countervailing considerations such as the need to enforce planning control in the general interest and, importantly therefore, the planning history of the site. The degree and flagrancy of the postulated breach of planning control may well prove critical".

    I would endorse this approach. In short the granting of an injunction under section 187B is an equitable remedy and the court has a wide discretion.

  62. A series of Circulars issued by the Department of Environment, and its successor the Department of the Environment, Transport and the Regions, have since 1991 emphasised the width of the power of the court and that injunctive relief must be a commensurate remedy in the particular case: Circular No 21/91 dated 16 December 1991, para 7; Circular No 18/94 dated 23 November 1994; Circular No 10/97, dated 31 July 1997, para 5.10; DETR guidance dated 26 July 2000, para 9. Section 187B came into force on 2 January 1992: SI 1991/ 2905. But it received the Royal Assent on 25 July 1991. These circulars are not relevant to the construction of section 187B: they were not part of the contemporary materials available to Parliament when the legislation was passed. On the other hand, they may arguably have some value as persuasive evidence of the workability of the interpretation preferred by the Court of Appeal. It is unnecessary, however, to rely on these materials in the present case.
  63. That leaves two Court of Appeal decisions which undoubtedly assist the argument of the local authorities. The first is Mole Valley District Council v Smith (1992) 90 LGR 557. The defendants, who were Gypsies, had persistently flouted planning laws in respect of caravan sites. They relied on the fact that the city council was in undoubted breach of its statutory duty to Gypsies by failing to provide sufficient sites for them. Lord Donaldson of Lymington MR relied on a dictum of Hoffmann J at first instance which was to the following effect (at p 567):
    • "There can be no doubt that requiring [the defendants] to leave the site would cause considerable hardship. This court, however, is not entrusted with a general jurisdiction to solve social problems. The striking of a balance between the requirements of planning policy and the needs of these defendants is a matter which, in my view, has been entrusted to other authorities".

    With the agreement of the other members of the court the Master of the Rolls dismissed the appeal against the grant of an injunction.

  64. The second decision is Hambleton District Council v Bird [1995] 3 PLR 8. Despite persistent breaches of the planning laws the judge had refused to grant an injunction requiring the defendants to vacate certain land. The Court of Appeal held that the judge had misdirected himself by taking into consideration the merits of the planning decision and whether a further application for planning permission might be successful; and he wrongly considered the availability of alternative accommodation for the respondents, the evidence that the official site was unsuitable, and the hardship to the respondents: see p 17D. There are passages in the judgments which suggest that under section 187B hardship is legally irrelevant to the exercise of the court's discretion.
  65. These decisions pre-date the coming into operation of the Human Rights Act 1998. But even under domestic law the dicta were in my view too austere in so far as they appeared to suggest that even great hardship was irrelevant. A civil society requires a fairer and more balanced approach. There was insufficient allowance for the equitable nature of the remedy and the width of the discretion. On this ground alone these decisions of the Court of Appeal should no longer to be treated as controlling.
  66. In any event, the new landscape of the Human Rights Act 1998 requires a different perspective. Article 8 of the European Convention on Human Rights contains a fundamental right. It reads:
    • "1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

      2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".

    It is unlawful for the court to act in a way which is incompatible with a Convention right: section 6(1). Even if it had previously been possible to ignore great or marked hardship in the exercise of discretion under section 187B - a hypothesis which I do not accept - such an approach is no longer possible. Sometimes, perhaps more often than not, the interference with a Convention right may be justified on public interest grounds. But effective protection of a Convention right requires the court to approach the matter in a structured fashion in accordance with the principle of proportionality. What in the context of the present case is required was explained by Simon Brown LJ in terms on which I cannot improve. He said, at p 1378 D:

      "Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the public interest objective sought - here the safeguarding of the environment - but also that it does not impose an excessive burden on the individual whose private interests - here the gipsy's private life and home and the retention of his ethnic identity - are at stake".

    Plainly, the protection of the relevant Convention right would not be effectively protected by leaving it to local authorities acting under section 187B(1) to consider matters of hardship under article 8. It follows that, whatever their earlier status, the reasoning in the Mole and Hambleton decisions are no longer authoritative or helpful.

  67. For the reasons given by my noble and learned friend Lord Bingham of Cornhill, as well as the reasons I have given, I would make the orders proposed by Lord Bingham.
  68. LORD CLYDE

    My Lords,

  69. These three appeals concern the enforcement of planning control against gypsies who were occupying lands in the areas of the respective local authorities without planning permission to do so. The respondents in one of the appeals, that of Chichester District Council v Searle and others did not present argument at the hearing because they have sold the lands in question and left them. In each of the two remaining cases planning permissions have been given at least to secure the occupation by the respective respondents but these are currently under appeal. The issue before this House relates to the granting of injunctions against the respective respondents under section 187B of the Town and Country Planning Act 1990.
  70. Section 187B provides:
    • "187B (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…"

  71. It is undisputed that under subsection (2) the court has a discretion. What is in dispute is the extent of that discretion, in particular with regard to the possible effects of an injunction on the defendants by way of hardship. The appellants contend that the role of the court is essentially a supervisory one. On their approach, if the local authority have considered the question of the possible hardship to the defendants, and all other relevant factors, the court may not explore such matters but must accept the conclusion reached by the authority. The respondents argue that the particular point of dispute in the present cases is whether the court may consider the consequences of the injunction for the defendants in deciding whether or not to grant it. They contend that at the very least the court may properly have regard to the possible hardship for the defendants. The issue thus raises questions about the precise scope of the discretion given to the court by section 187B(2).
  72. It may be noted at the outset that the section is talking about an injunction. This is not a new remedy created by Parliament but a familiar and long-established form of remedy in English law. What the section did was to give an express statutory power for local planning authorities to apply to the court for that remedy and a discretion in the court to grant it. The power was given expressly to local planning authorities, so that this remedy may not be sought under the statute by anyone else. Parliament imposed an express pre-condition for the application upon the authority, namely that it must consider it necessary or expedient for an actual or apprehended breach of planning control to be restrained by injunction. That initial step of consideration is one which they must have taken before they can make the application and it serves as an initial restraint on the power to make the application under the Act. It does not seem to me to bear upon the problem of the scope of the court's discretion. I note in passing that we are not required in the present case to explore the application of the possibly overlapping tests of "necessary or expedient".
  73. Subsection (1) may be seen as widening the availability of the power to apply in providing that the application may be made whether or not the authority have exercised or are proposing to exercise any of the other powers in Part VII of the Act. That includes in particular the power to issue a planning contravention notice under section 171C, an enforcement notice under section 172, a breach of condition notice under section 187A, and a stop notice under section 183. But that does not mean that the court may not take account of the facts regarding any other remedy which the authority have pursued or the fact that they have not pursued any other remedy. In my view the provisions in subsection (1) all relate to the power in the authority to make the application. They do not cast any direct light on the question of the scope of the discretion given to the court in subsection (2) in the granting or withholding of the remedy. The authority have to decide in accordance with the statute to make the application for an injunction but it is for the court to decide whether or not to grant it and the decision to make the application cannot determine that question.
  74. Since the remedy which the court was expressly permitted to grant under subsection (2) was a familiar remedy under English law it might be expected that in dealing with an application for such a remedy the court would adopt the same approach and apply the same tests as it has always done in relation to injunctions. The jurisdiction expressly conferred upon the court by subsection (2) is plainly an original jurisdiction. It is not presented as a means of appeal or of review of the decision to enforce planning control or of the decision to apply for an injunction. On the face of it there seems no reason why the court should not take into account what effect an injunction might have on the personal circumstances of the defendant.
  75. Counsel for the appellants laid stress on the final phrase of section 187B(2) "for the purpose of restraining the breach". As a matter of the construction of the subsection this phrase does not seem to me to circumscribe the power of the court so as to make the whole choice of action dependant upon the consideration of whether or not an injunction would serve the purpose of restraining the breach. If that was the intention of the final phrase then it would be hard to imagine any case in which an injunction would not be granted. In every case an injunction operates to restrain the breach. But the court is not compelled to grant an injunction. The subsection only empowers that to be done. I cannot read into the phrase any limitation upon the matters to which the court may have regard in exercising its discretion nor can I find there an indication that the court's role is intended to be a supervisory one. The importance of the phrase to my mind is in directing the court to the purposes which any injunction must be designed to achieve. The injunction which is permitted by the subsection is "such" injunction as will serve the stated purposes. The phrase indicates the kind of injunction, the terms of the order, if any, which may be granted. It does not resolve the question how far the court's discretion may go.
  76. The principal theme in the appellants' argument as it seemed to me was the concern that the court should not trespass into areas with which it has no concern. I certainly accept that it is for the planning authorities and not for the courts to see to the preparation and administration of plans and policies for the use of land. What uses should or should not be allowed of lands within the area of the authority, what developments should or should not be permitted to take place upon such lands, are questions for the planning authorities and not for courts of law to resolve. The expression "planning matters" may be too uncertain a use of language in this context. I also find the expression "planning code" which was sometimes used in the argument lacking in precision. The expression "planning merits" seems to me to be more exact, but I would prefer to identify the forbidden ground as comprising matters of "planning judgment".
  77. The factors which require to be considered in the making of a planning judgment are potentially many and varied. They include matters relating to the economic and social needs of the locality, the interests of the public and of the individual members of it who live there, the preservation of the environment and the protection of amenity. Lord Hoffmann observed in Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, at p 780H:
    • "If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State."

    The courts may consider the legality of a planning judgment but not the merits of the planning decision. In R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389 this distinction was recognised and held to be consistent with article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. If the courts were to embark upon a reassessment of matters of planning judgment they would, to use the language of Lord Hoffmann in R v Wicks [1998] AC 92, at p 120F be subverting the whole scheme of the Act.

  78. Planning authorities will in particular require to consider the human factor. In Westminster City Council v Great Portland Estates plc [1985] 1 AC 661, 670 Lord Scarman observed:
    • "Personal circumstances of an occupier, personal hardship, the difficulties of businesses which are of value to the character of a community are not to be ignored in the administration of planning control."

    Certainly in the enforcement of planning control these personal and human factors must be taken into account. They will also play a part in the earlier stages of the drawing up of plans and policies as well, of course, in the decisions in individual cases whether or not some particular permission should or should not be granted.

  79. But the enforcement of the planning decisions which have been reached by planning authorities does not in my view strictly involve the exercise of a planning judgment. The statutory provisions relating to enforcement are set out in a distinct part of the Town and Country Planning Act 1990, Part VII. They are in a broad sense "planning matters". Indeed the initiative to enforce planning control under these provisions lies with the authority. In deciding whether to take action in the event of a breach of planning control the authority will require to weigh a variety of factors which go beyond the considerations of the planning judgment in the light of which the plans were made and permissions granted or refused. The factors will now include the seriousness of the breach and its effect in the particular case. The authority will also require to consider which of the various methods of enforcement provided by the statute they should adopt. Enforcement notices and stop notices are courses which the authority may take at their own hand. So also is the breach of condition notice introduced by section 187A. But the injunction provided for by section 187B requires the intervention of the court. Parliament has expressly given the power to grant this particular form of remedy to the court. The authority must decide that the course is "necessary or expedient", but it is for the court, not for them, to issue the order.
  80. In exercising its power the court must not re-assess matters which are the subject of a planning judgment. But that does not mean that the factors which have been considered by the authority in making their planning judgment may not be properly taken into account by the court in deciding whether or not to grant this particular remedy. In looking at the factors which weighed with the authority the court is not embarking upon a reassessment of what was decided as matter of planning judgment but entering upon the different exercise of deciding whether the circumstances are such as to warrant the granting of the particular remedy of an injunction.
  81. It is said that if the court was enabled to take into account matters which have been considered by the planning authority in deciding whether a particular development was acceptable in planning terms and the court refused an injunction it would in effect be granting a temporary planning permission for the development. But the analogy is not exact. The authority might be able to take fresh steps for enforcement on a more secure basis than that on which they had attempted to do so before. They could also seek enforcement if any change of circumstances occurred. So the defendant does not truly enjoy any protective permission. The temporary relief which he may enjoy is no different from the relief which he would achieve through a successful challenge by judicial review and the propriety of the court granting review of an invalid decision by the local authority should not be open to criticism on the ground that the court is granting some kind of temporary permission to the person who applied for review.
  82. Accordingly in my view section 187B(2) allows and has always allowed the court in the exercise of its discretion in granting an injunction to weigh up the public interest in securing the enforcement of planning policy and planning decisions against the private interests of the individuals who are allegedly in breach of planning control. In particular I would hold that it is open to the court to consider questions of hardship, particularly as regards health, arising out of the effect on such individuals of a grant of an injunction. In that regard I do not consider the observations contrary to that view in Mole Valley District Council v Smith (1992) 90 LGR 557 and more particularly in Hambleton District Council v Bird [1995] 3 PLR 8 to be sound.
  83. Those two cases were decided before the Human Rights Act 1998 came into effect. The requirement imposed by section 6(1) of that Act on a court to whom an application for an injunction is made under section 187B of the 1990 Act now makes it a matter of statutory necessity for the court in any case where article 8 of the Convention applies to see whether the test of proportionality is satisfied before an injunction is granted. Counsel for the appellants sought assistance from the decision of the Court of Appeal in Sheffield City Council v Smart [2002] LGR 467. But that case was dealing with non-secure tenancies under section 193 of the Housing Act 1996 and it may be noted by way of distinction that, at p 482, para 31 Laws LJ said:
    • "In my judgment it is important to notice that the regimes of secure tenancies and of planning control (engaged in the gipsy cases), require the court to adjudicate upon the specific merits or otherwise of coercive action in the individual case…."

    Counsel also argued that the court did not require itself to apply a test of proportionality where the regime was already compliant with the Convention. But while the scheme of the planning legislation may comply with the Convention the application of particular provisions of it in particular circumstances gives rise to distinct and separate questions which are not solved merely by reference to the general regime.

  84. So far as the particular cases before us are concerned I gratefully adopt the account of the facts which has been set out in the speech of my noble and learned friend Lord Bingham of Cornhill. In that regard I would point out that the circumstances of the two cases where the respondents have contested the appeal before us are quite special. In each case the respondent owns the land in question and while the two pieces of land lie respectively in an area of green belt or green barrier it is not suggested that there is any urgent environmental problem. In each case there are problems of health and lack of alternative accommodation made more problematic as the respondents are Gypsies where considerations of humanity may be particularly acute owing to their particular traditions and lifestyle. That their cases are far from hopeless on the merits is reflected in the fact that they have each been granted a planning permission, although since the hearing before us I understand that an appeal by the local authority in Mrs Porter's case has been upheld. These considerations give a particular force to the proposition that an injunction may be an inappropriate remedy. But that these particular cases have that force should not be understood as diminishing in any way the value of the means of enforcement of planning control provided by section 187B. One reason for its introduction was to reduce the risk of the system for the enforcement of planning control being abused. It remains a potent weapon for that purpose and no doubt in other cases its use to support and back up the other methods of control will be found to be appropriate.
  85. However in the present case I consider that the Court of Appeal proceeded upon the correct approach and I agree with the decision which they reached. I agree in particular with their criticism of the decision in the case of Berry whose facts in my view can be distinguished from those in Chapman v United Kingdom (2001) 33 EHRR 399. I would accordingly dismiss the three appeals which are before us.
  86. LORD HUTTON

    My Lords,

  87. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord Steyn and I am in full agreement with the reasons which they give for dismissing these appeals. I will only add a few observations of my own relating to the issue of personal hardship.
  88. The appeals are concerned with the problem which arises when the enforcement of planning control would result in considerable personal hardship to the occupier of the site against whom the enforcement is to take place. The present cases are examples of the difficulties which arise when it is desirable on planning grounds relating to the amenity of the area to stop the use of land as a site for a caravan or mobile home, but when an injunction under section 187B of the Town and Country Planning Act 1990 ordering the cessation of such use would cause severe hardship to the person who lives in the caravan or mobile home because of his or her age or ill health.
  89. Section 187B of the Town and County Planning Act 1990 provides:
    • "(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."

  90. In his judgment in the Court of Appeal (with which Peter Gibson and Tuckey LJJ agreed) [2002] 1 WLR 1359, at p 1363F Simon Brown LJ stated that the central issue for determination on the appeals was the extent to which the court itself on a section 187B application should exercise an independent judgment in deciding whether or not to grant an injunction. After a careful consideration of the authorities Simon Brown LJ stated his opinion as to the approach which a court should take on an application for an injunction under section 187B in cases such as the present ones, at pp 1377-1378, paras 38 to 42 of his judgment which have been set out in full in the speech of Lord Bingham.
  91. Mr Straker QC, for the appellants, submitted that the Court of Appeal erred in departing from the approach taken by that court in earlier decisions that it is not for a court to weigh competing interests in planning matters. Parliament had entrusted to local planning authorities, which are democratically elected bodies, the task of weighing such interests and the decisions of those authorities are subject to an appeal on the merits to the Secretary of State who is answerable to Parliament. Therefore it is not the concern of a court to carry out that function and to decide where the balance lies between the interests of the defendant occupier and the wider community. If, on an application under section 187B, a local planning authority proves a breach of planning control, an injunction should be granted unless it can be shown that its decision to enforce planning control is invalid on Wednesbury grounds. The purpose of the court is to assist in the enforcement of planning control, not to make planning decisions itself.
  92. Mr Straker cited a number of decisions in support of this submission: Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132; Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759; R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389. The statement which most strongly supports the appellants' argument is the observation of Lord Hoffmann in Tesco Stores, at p 780G:
    • "The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.

      This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State."

  93. However the issue which lies at the heart of this case is what in Westminster City Council v Great Portland Estates plc [1985] AC 661 Lord Scarman termed "the human factor". The cases on which Mr Straker relied related to matters of planning policy and the planning merits of particular cases and were not concerned with cases where the question of human hardship arose. On this issue the speech of Lord Scarman (with which the other members of the House concurred) provides clear guidance. In the Great Portland Estates case a question arose as to whether in formulating a plan for the development of the use of land under the Town and Country Planning Act 1971 a city council should have regard to the interests of individual occupiers of premises. In his speech Lord Scarman considered the extent to which the human factor can be taken into account in planning decisions. At p 669H he cited the observation of Lord Parker CJ in East Barnet Urban District Council v British Transport Commission [1962] 2 QB 484, 491 that "what is really to be considered is the character of the use of the land, not the particular purpose of a particular occupier". At p 670D he said that "a planning purpose is one which relates to the character of the use of land" and at p 670E he stated:
    • "However, like all generalisations Lord Parker CJ's statement has its own limitations. Personal circumstances of an occupier, personal hardship, the difficulties of businesses which are of value to the character of a community are not to be ignored in the administration of planning control. It would be inhuman pedantry to exclude from the control of our environment the human factor. The human factor is always present, of course, indirectly as the background to the consideration of the character of land use. It can, however, and sometimes should, be given direct effect as an exceptional or special circumstance. But such circumstances, when they arise, fall to be considered not as a general rule but as exceptions to a general rule to be met in special cases."

  94. In his judgment at p 1377, para 38 Simon Brown LJ drew a distinction between the planning merits of a case on the one hand and the hardship which would be suffered by a defendant and his family on the other. He held that it was not for the judge to decide purely planning matters - this was a matter for the local planning authority, but that it was right for the judge to take into account the human factor, stating, at p 1377B:
    • "It seems to me perfectly clear that the judge on a section 187B application is not required, nor even entitled, to reach his own independent view of the planning merits of the case. These he is required to take as decided within the planning process, the actual or anticipated breach of planning control being a given when he comes to exercise his discretion. But it seems to me no less plain that the judge should not grant injunctive relief unless he would be prepared if necessary to contemplate committing the defendant to prison for breach of the order, and that he would not be of this mind unless he had considered for himself all questions of hardship for the defendant and his family if required to move, necessarily including, therefore, the availability of suitable alternative sites."

  95. As Lord Scarman recognised in his speech in Great Portland Estates that the human factor is sometimes a distinct and additional factor to be viewed separately from ordinary planning considerations and that on occasions it should be given direct effect as an exceptional or special circumstance, I think that Simon Brown LJ was right to make the distinction he did between purely planning considerations and the human factor, and that he was also right to hold that the human factor should be taken into account in deciding whether planning control should be enforced by the granting of an injunction.
  96. I do not accept Mr Straker's submission that it is not appropriate for a court to take into account and weigh against purely planning considerations the hardship which the defendant would suffer if he or she were forced to move from the site. It is clear that section 187B gives the court an original jurisdiction which it is to exercise as it thinks right. Subsection (2) states that the court "may" grant such an injunction as the court "thinks appropriate" for the purpose of restraining the breach. Therefore it is not for the court to act merely as a rubber stamp to endorse the decision of the local planning authority to stop the user by the particular defendant in breach of planning control. Moreover the court is as well placed as the local planning authority to decide whether the considerations relating to the human factor outweigh purely planning considerations; the weight to be attached to the personal circumstances of a defendant in deciding whether a coercive order should be made against him is a task which is constantly performed by the courts.
  97. Article 8 of the European Convention on Human Rights provides:
    • "1  Everyone has the right to respect for his private and family life, his home and his correspondence.

      2  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

    In Buckley v United Kingdom (1996) 23 EHRR 101 the European Court of Human Rights held that the fact that a gypsy was living in a caravan on a site in breach of planning control did not disentitle her from claiming that the caravan was her "home" within the meaning of Article 8. Simon Brown LJ held at p 1378, para 41 of his judgment that under section 6(1) of the Human Rights Act 1998 a court hearing an application for an injunction under section 187B must act in a way which is compatible with the right given by Article 8. In my opinion he was right to do so because section 187B requires the court to decide on the facts of the individual case whether it is appropriate to grant an injunction which, in cases such as these, will require the defendant to leave his or her home.

  98. At pp 1377-1378, paras 38 to 42 of his judgment the learned lord justice gave what, in my respectful opinion, is clear and helpful guidance as to the factors which a court hearing a section 187B application should take into account, which included the following. At p 1377D, he stated:
    • "Questions of the family's health and education will inevitably be of relevance. But so too, of course, will countervailing considerations such as the need to enforce planning control in the general interest and, importantly therefore, the planning history of the site. The degree and flagrancy of the postulated breach of planning control may well prove critical. If conventional enforcement measures have failed over a prolonged period of time to remedy the breach, then the court would obviously be the readier to use its own, more coercive powers."

    And, at p 1377G:

      "Relevant too will be the local authority's decision under section 187B(1) to seek injunctive relief. They, after all, are the democratically elected and accountable body principally responsible for planning control in their area. Again, however, the relevance and weight of their decision will depend above all on the extent to which they can be shown to have had regard to all the material considerations and to have properly posed and approached the article 8(2) questions as to necessity and proportionality."

    In Chapman v United Kingdom (2001) 33 EHRR 399 the European Court of Human Rights stated, at p 428:

      "102  Where a dwelling has been established without the planning permission which is needed under the national law, there is a conflict of interest between the right of the individual under Article 8 of the Convention to respect for his or her home and the right of others in the community to environmental protection. When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The Court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the Court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community.

      103  A further relevant consideration, to be taken into account in the first place by the national authorities, is that if no alternative accommodation is available, the interference is more serious than where such accommodation is available. The more suitable the alternative accommodation is, the less serious is the interference constituted by moving the applicant from his or her existing accommodation.

      104  The evaluation of the suitability of alternative accommodation will involve a consideration of, on the one hand, the particular needs of the person concerned— his or her family requirements and financial resources— and, on the other hand, the rights of the local community to environmental protection. This is a task in respect of which it is appropriate to give a wide margin of appreciation to national authorities, who are evidently better placed to make the requisite assessment."

  99. I consider that the factors stated by Simon Brown LJ properly reflect the considerations which in Chapman the European Court stated should be taken into account and that a court which follows the guidance given by him will be acting compatibly with Article 8.
  100. Whilst I do not express a concluded opinion on the point which was not the subject of detailed argument before the House, I see no reason to doubt the view expressed by Laws LJ in Sheffield City Council v Smart [2002] LGR 467, 486 D that there are some statutory regimes under which the balance of interests arising under Article 8(2) has in all its essentials been struck by the legislature and under which a court, before ordering a defendant to give up possession of accommodation where he has been living, is not obliged to adjudicate upon the specific merits of coercive action in an individual case.
  101. Mr George QC, for the respondents, submitted that Simon Brown LJ had gone too far in stating that the judge on a section 187B application was not entitled to reach his own independent view on the planning merits of the case. He advanced the submission that, whilst it would be right for the judge to accord great deference to the decision of the local planning authority on matters of planning policy such as whether an area of land should be kept as an open space or should be used for the building of houses, the judge was not bound by its decision on every aspect of planning control. Thus, for example, if the local planning authority decided to enforce the removal of some unsightly structure because it spoilt the view of a number of houses, it would be open for the judge to differ from that decision if it were proved that no house had a view of the structure.
  102. In stating that the judge should not come to a decision on the planning merit of the case I think that Simon Brown LJ was intending to give effect to the principle stated by Lord Hoffmann in Tesco Stores, at p 780G and was not considering the unusual type of case suggested by Mr George. In my opinion the judge is not precluded from deciding some factual issue, such as that instanced by counsel. But I think that such cases would be rare and I consider that a judge should be alert to ensure that he does not embark on the determination of an issue which would, in reality, involve him in the assessment of planning considerations which lie within the ambit of the functions of the local planning authority.
  103. Accordingly for the reasons which I have given, and also for the reasons given by Lord Bingham and Lord Steyn, I would dismiss these appeals.
  104. LORD SCOTT OF FOSCOTE

    My Lords,

  105. The issue of importance raised by these three appeals relates to the function of the court and the criteria the court should apply when dealing with an application by a local planning authority, made under section 187B of the Town and County Planning Act 1990, for an injunction to restrain a breach of planning control. I have had the advantage of reading in advance the opinions of my noble and learned friends Lord Bingham of Cornhill, Lord Steyn, Lord Clyde and Lord Hutton and need not repeat what they have said about the facts of the three cases and about the background to and the reasons for the enactment of section 187B.
  106. I respectfully agree that the jurisdiction exercised by the court on an application under section 187B is an original, as opposed to a supervisory, jurisdiction. The section did not, however, confer a new jurisdiction. It had been settled law for many years that the court had jurisdiction to grant a civil law remedy by way of injunction in order to enforce the public law, except in cases where statute had expressly or by necessary implication removed the jurisdiction. In Attorney General v Chaudry [1971] 1 WLR 1614 Lord Denning MR said, at p 1624:
    • "Whenever Parliament has enacted a law and given a particular remedy for the breach of it, such remedy being in an inferior court, nevertheless the High Court always has reserve power to enforce the law so enacted by way of an injunction or declaration or other suitable remedy. The High Court has jurisdiction to ensure obedience to the law whenever it is just and convenient so to do."

  107. The principle was confirmed by this House in Gouriet v Union of Post Office Workers [1978] AC 435 but their Lordships emphasised that the jurisdiction was one "of great delicacy and …. to be used with caution" (Lord Wilberforce, at p 481).
  108. Absent some special statutory authorisation, an application for an injunction to enforce the public law has to be brought by the Attorney General. In Attorney General v Bastow [1957] 1 QB 514, 519 Devlin J described the Attorney General as "the only authority who has a right to bring a civil suit upon the infringement of public rights". This principle, too, was confirmed by the House in the Gouriet case. However, section 222 of the Local Government Act 1972 empowered local authorities to institute civil actions in their own name where they considered it "expedient for the promotion or protection of the interests of the inhabitants of their area …." Post 1972, therefore, an application by a local planning authority for an injunction to enforce the planning law could be made in an action brought by the local authority in its own name. Previously the action had to be a relator action brought in the name and with the consent of the Attorney General. But the nature of the application for an injunction was not changed by the advent of locus standi for the local authority to sue in its own name. Nor were the criteria to be applied by the court in deciding whether or not to grant the injunction altered. The criteria remained those expressed in section 37 of the Supreme Court Act 1981 (and its predecessor, section 45 of the Judicature Act 1925), which empowered the High Court to grant an injunction:
    • "in all cases in which it appears to the court to be just and convenient to do so."

  109. Section 187B, providing specifically in relation to planning controls an authority to bring proceedings that previously had been provided generally by section 222 of the Local Government Act 1972, authorised a local planning authority to apply for an injunction in support of planning law where the local planning authority "consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction" (subsection (1)). The criteria of "necessary or expedient" relate to the decision of the local authority to apply for the injunction. They take the place of criteria set out in section 222 of the 1972 Act. They are not criteria which apply to the court's decision whether or not to grant the injunction. Section 187B(2) says that 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". This language does not, in my opinion, add to or subtract from the criteria expressed in section 37 of the Supreme Court Act 1981. The grant of the injunction must be "just and convenient". If the grant of the injunction cannot satisfy this test it can hardly be thought "appropriate" to grant it.
  110. The criteria that govern the grant by the court of the injunction make clear, in my opinion, that the court must take into account all or any circumstances of the case that bear upon the question whether the grant would be "just and convenient". Of particular importance, of course, will be whether or not the local planning authority can establish not only that there is a current or apprehended breach of planning control but also that the ordinary statutory means of enforcement are not likely to be effective in preventing the breach or bringing it to an end. In a case in which the statutory procedure of enforcement notice, prosecution for non-compliance and exercise by the authority of such statutory self-help remedies as are available had not been tried and where there was no sufficient reason to assume that, if tried, they would not succeed in dealing with the breach, the local planning authority would be unlikely to succeed in persuading the court that the grant of an injunction would be just and convenient.
  111. In deciding whether or not to grant an injunction under section 187B the court does not turn itself into a tribunal to review the merits of the planning decisions that the authority, or the Secretary of State, has taken. The purpose of the injunction would be to restrain the alleged breach of planning controls and the court could not in my opinion properly refuse an injunction simply on the ground that it disagreed with the planning decisions that had been taken. If the court thought that there was a real prospect that an appeal against an enforcement notice or a fresh application by the defendant for the requisite planning permission might succeed, the court could adjourn the injunction application until the planning situation had become clarified. But where the planning situation is clear and apparently final the court would, in my opinion, have no alternative but to consider the injunction application without regard to the merits of the planning decisions.
  112. It does not, however, follow that once the planning situation is clear and apparently final it is not open to the court to take into account the personal circumstances of the defendant and the hardship that may be caused if the planning controls are enforced by an injunction. Planning controls are imposed as a matter of public law. The local planning authority in seeking to enforce those controls is not enforcing any private rights of its own. If a local authority mortgagee is seeking an order for possession against the mortgagor, or a local authority landlord is seeking an order for possession against a tenant, or a local authority landowner is seeking an order to remove squatters or to restrain trespass, the local authority is seeking an order to enforce its private property rights. It is as well entitled to do so as is a private mortgagee, landlord or landowner. The function of the court in civil litigation of that character is, in my opinion, to give effect to the private rights that the local authority claimant is seeking to enforce. But an application for an injunction under section 187B, or any other application for an injunction in aid of the public law is different. As Lord Wilberforce said in the Gouriet case, the jurisdiction to grant such injunctions is one of great delicacy and to be used with caution.
  113. I respectfully agree with the criticism expressed by my noble and learned friend Lord Steyn of the two Court of Appeal authorities particularly relied on by the appellant planning authorities (see paragraphs 55 to 57 of his opinion). The hardship likely to be caused to a defendant by the grant of an injunction to enforce the public law will always, in my opinion, be relevant to the court's decision whether or not to grant the injunction. In many, perhaps most, cases the hardship prayed in aid by the defendant will be of insufficient weight to counter balance a continued and persistent disobedience to the law. There is a strong general public interest that planning controls should be observed and, if not observed, enforced. But each case must depend upon its own circumstances.
  114. The manner in which the Court of Appeal approached the issue, as evidenced by paras 38 to 42 of the judgment of Simon Brown LJ, cited by my noble and learned friend Lord Bingham of Cornhill, was, in my respectful opinion, correct.
  115. For these reasons, as well as those to be found in the opinions of my noble and learned friends with all of which I am in agreement, I too would dismiss these appeals and make the orders proposed by Lord Bingham.


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