Injunctions: a no-brainer?

Planning iStock 000002733689Small 146x219Local authorities should consider making greater use of injunctions to ensure compliance with planning and environmental laws, argues Jack Smyth.

The injunction is a remedy which is rarely sought by local authorities in the area of planning and environmental law. There is no good reason for this. It is suggested that local authorities should be far readier to go down this route as it often represents the quickest, cheapest, easiest and most effective way to seek compliance for a breach of planning control or environmental regulation.

Take a planning example. There is a breach of planning control. The local authority is satisfied that it is expedient to issue an enforcement notice. The recipient appeals. Both parties file proofs of evidence. The appeal is heard at an inquiry or hearing. Some time after the inquiry is closed, the decision is released in which the appeal is dismissed and the enforcement notice upheld. A period of compliance follows to afford the appellant time to remedy the breach of planning control. He fails to do so. He is warned that he has committed a criminal offence. He is prosecuted for the same. The defendant enters a ‘not guilty’ plea and elects a Crown Court trial before a jury. A number of months later, he is convicted and given a modest fine. The end result? Two years have passed, the local authority is out of pocket to the tune of thousands of pounds and the breach of planning control continues unabated.

The statutory basis for bringing an application for injunctive relief is found at section 187 B of the Town and Country Planning Act 1990, which 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.

(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.

An injunction is relatively straightforward to obtain, and far easier to seek than launching criminal proceedings with all the attendant duties of disclosure and bothersome requirements of hearsay and continuity of exhibits. The local authority need only draft an application which can be issued at the Civil Court Centre together with a witness statement which evidences the concerns of the local authority. The witness statement should outline:

  1. The nature of the breach of planning control (maps and colour photographs may be of considerable assistance); and
  2. The material harm which is caused by the breach.

The local authority must personally serve a copy of the application together with the witness statement and notice of hearing on each defendant. At the hearing, the Judge will expect to see an affidavit of service to prove the same. In order to reduce the risk of the matter being adjourned it is important that the defendant has sufficient time between being served with the application and the hearing itself to seek legal advice and prepare his defence. As a general rule of thumb, local authorities should look for a period of at least 14 days, but a shorter time may be appropriate if the application is urgent.

In order to grant the injunction the Court needs to be satisfied that it is just and convenient as well as proportionate to do so in light of the article 8 right to a private life contained within the European Convention on Human Rights. At the hearing, the Judge will invariably weigh up the public interest of granting an injunction in terms of upholding the integrity of the planning system and abating the material harm as against the private interest of the landowner/occupier to use his land as he sees fit.

From a practical point of view, the Circuit Judge who will hear the application will usually be inexperienced in planning and environmental law. Accordingly, Judges commonly take a common-sense, broad-brush approach. If it can be demonstrated that there has been a flagrant breach of planning (rather than some technical or slight indiscretion), material harm is caused and the defendant shows no sign of rectifying the situation, the Court is likely to look sympathetically upon the application.

If successful, the local authority can recover the costs of investigating the breach and bringing the application. The injunction will be accompanied by a penal notice, such that the defendant is liable for a term of imprisonment not exceeding two years if he fails to obey the order. In this way, it can be seen that the injunctive route is cost-effective and the presence of a penal notice means that the terms of the order are likely to be respected.

Considerable care should be taken to ensure that the order is drafted in precise terms such that it can be enforced. The means of achieving compliance is the threat of imprisonment if the order is breached. However, for contempt of court to be proved, the Court must be satisfied so that it is sure that the defendant knowingly breached the order. The approach to be adopted when preparing the draft order should be “can it easily be shown when the defendant has failed to comply with each paragraph of the order?” If there is some ambiguity on the face of the order, it will be far easier for the defendant to wriggle out of the contempt proceedings if he chooses not to comply with the order.

It is advised that when a local authority seeks to avail itself of such a remedy, save for truly complicated cases, it is likely to be preferable for an application to be issued rather than a claim. The Court Listing Officer should give a hearing date when the application is issued. This method short-circuits the matter, as there is no need for directions hearings and all the bureaucratic back and forth associated with filing a defence and allocation questionnaires. It is simply a matter of issuing an application and returning to Court on another occasion for the final hearing.

Once the application has been issued, it should be disposed of at the hearing. In these circumstances, the local authority should achieve closure within a matter of weeks of issuing the application. This stands in stark contrast to the lengthy, expensive and time-consuming process of conventional enforcement.

An injunction can be sought in a number of different contexts, but the most common are:

  • For an anticipated breach of planning control. This is common in gypsy traveller cases where the local authority receives intelligence that a gypsy site may be established over the coming bank holiday weekend. In these circumstances, it is likely to be prudent to make the application ex parte and then serve it on the owner(s) of the site expediously. The order will be temporary with a return date when the defendants can make submissions as to whether (i) it was properly granted and (ii) should continue into the future. Local authorities are reminded of the need to provide full and frank disclosure when seeking the ex parte injunction. In practice this means that the witness evidence should not cherry-pick the facts; but set out all the relevant facts fully and impartially. Further, the accompanying witness statement should explain why the application is made without notice: CEF Holdings Ltd and City Electrical Factors Ltd v Mundey et al [2012] EWHC 1524.
  • Freezing unauthorised development to prevent any further works from being undertaken.
  • There is no reason why local authorities should not seek an injunction routinely once an enforcement notice has not been complied with within the requisite period, save for cases where (i) there is little material harm caused by the breach or (ii) the proposed defendant’s personal circumstances are such that it is likely to be disproportionate to compel compliance.

Whilst this article has been focused on breaches of planning control, it must not be forgotten that such an avenue can be used for statutory nuisance. Section 81 (5) of the Environmental Protection Act1 1990 provides: "If a local authority is of opinion that proceedings for an offence under section 80(4) above would afford an inadequate remedy in the case of any statutory nuisance, they may…take proceedings in the High Court for the purpose of securing the abatement, prohibition or restriction of the nuisance, and the proceedings shall be maintainable notwithstanding the local authority have suffered no damage from the nuisance."

It seems for some time local authorities have been reluctant to go down the injunctive route as it was seen as a draconian remedy which should only be sought as the final port of call once all other conventional means of enforcement have been exhausted. I get the sense that the Courts are far more willing to grant injunctions, when applications are made supported by cogent and convincing evidence, than they were in the past. In all the applications I have successfully made I have never experienced a Judge who refused, or indeed challenged, an application on the grounds that the local authority had failed to instigate criminal proceedings instead.

In an era of budgetary restraint, the injunction is likely to prove an increasingly attractive remedy for local authorities. 

Jack Smyth is a barrister at No. 5 Chambers.