High Court dismisses claims of coercion by council when it issued costs warning in planning enforcement case

A High Court judge has rejected an assertion that a warning by a council of continuing proceedings and the associated costs had “coerced” the defendants in a planning enforcement dispute into providing undertakings.

However, Andrew Kinnier KC, sitting as a Deputy High Court judge, went on to discharge those undertakings.

The judge said: “Once proceedings are issued, costs are always a relevant and legitimate factor in the parties' decision-making. I am told that in deciding what to do the Defendants had the benefit of legal advice from [counsel] and they chose to offer undertakings and so avoid the risk of a substantial adverse costs order. 

“In my judgment, neither the Council nor its solicitors can be criticised for saying that the Defendants would not incur significant costs if they offered undertakings on which basis the Council's claim would be withdrawn. On the facts of this case, it was a pragmatic solution to the situation and certainly not coercive.”

The dispute in Ashford Borough Council v Homewood & Anor [2025] EWHC 607 (KB) began in June 2021, when the council made a without notice application for an interim injunction, after officers had found a mobile home that had been connected to the water and electricity mains supplies on the defendant's property.

The council alleged that the defendants had carried out development in breach of planning control and that works had been carried out to prepare the land for residential occupation, namely placing a mobile home on it.

In response to the interim injunction, which was later made by Lane J, the couple agreed to a set of undertakings – including not to live on the land or change its use – on the basis that the council's claim would be dismissed and there would be no order as to costs.

On 2 July 2021, two days after they gave the undertakings, the defendants applied for planning permission to change the use of part of the land to allow (a) the siting of a mobile home for use as an agricultural worker's dwelling, (b) the creation of vehicular access and (c) the erection of an agricultural building and ancillary development. 

The council refused planning permission, leading to the defendant appealing to the planning inspector, who allowed the appeal and granted conditional planning permission.

The couple later issued proceedings in the High Court in order to release them from their undertakings.

As a preliminary issue, Andrew Kinnier KC tackled the "consistent theme" advanced by the defendant's counsel that the undertakings were provided in response to the threat of costs should the matter proceed to a final hearing.

Although he said Ashford and its solicitors could not be criticised in this regard, he suggested that “a deeply unfortunate feature of this case” was the council’s admitted failure to respond timeously to the defendants’ requests to be released from the undertakings.

The judge then addressed the following four grounds advanced by the defendants:

1. the alleged failure by the council to provide full and frank disclosure and its consequences
2. the undertakings had been automatically discharged by the grant of planning permission
3. the council was under a duty to review the undertakings on which basis it should release the Defendants
4. the undertakings were unnecessary and/or it would be unfair for them to continue.

On the first ground, the judge concluded that Ashford had discharged its duty of full and frank disclosure.

On the second ground, Andrew Kinnier KC found that the inspector’s grant of planning permission was sufficient to discharge one of the undertakings.

However, the judge added that “as the Inspector's decision made clear, as a matter of construction he was not granting permission in relation to the land in its entirety to which the other four undertakings applied”.

The inspector's grant was therefore not sufficient to discharge those undertakings.

Taking grounds 3 and 4 together, Andrew Kinnier KC said the council's “unsatisfactory and unreasonable delay in responding to the Defendants' requests highlights the potential unfairness in maintaining the undertakings for longer than is justified by events.

“The delay not only illustrates the Council's failure to keep the need for the undertakings under review, but it also leaves the Defendants exposed to the risk of committal proceedings in circumstances where the justification for the undertakings is no longer present and there are alternative adequate and effective means of dealing with any failure to comply with the Inspector's grant or planning requirements generally.”

He added: “As the Supreme Court identified in the Wolverhampton case, there is no proprietary right in an injunction (or, as here, an undertaking) and they should neither outlast nor outflank the facts that originally justified them.

“As matters stand, in my judgment, the real and imminent harm flowing from unpermitted development on the land no longer exists and, in all the circumstances of the case, it is just and convenient to discharge the undertakings.”

Adam Carey