Brent v Dowman [2003] EWCA Civ 920

Case No B2/2002/0063[2003] EWCA Civ 920
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WILLESDEN
COUNTY COURT
(Her Honour Judge Bevington)
Venue Royal Courts of JusticeDate Thursday 17 th July 2003
Strand,
London, WC2A 2LL
Before
LORD JUSTICE PILLLORD JUSTICE KEENE
Between
The London Borough of BrentAppellantMorris Marcus DowmanRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr B Sefi (instructed by London Borough of Brent Legal Services) for AppellantMr J Litton (instructed by Zeckler & Co, Uxbridge UB8 2AD) for Respondent
JudgmentAs Approved by the Court
[1]This is an appeal by the London Borough of Brent against the decision of Her Honour Judge Bevington sitting at Willesden County Court. The judge granted an injunction in respect of premises at 572, North Circular Road, Neasden. The issue on this appeal is not the decision to grant the injunction but the terms of the order.[2]The appellant is the planning authority for the area within which the premises are located. In physical terms the premises consist of a shop unit with an area to the rear, partly covered to form a workshop. The surrounding area is mainly residential. The respondent, Mr Dowman, took an assignment of a leasehold interest in the premises in 1987. In October 1999 he bought the freehold.[3]The injunction proceedings were begun by the planning authority in 2001 under section 187B of the Town and Country Planning Act 1990 (“the Act”) to restrain a breach of planning control. The relevant planning history of this matter is as follows.[4]The planning authority had served an enforcement notice dated 12 August 1994 alleging that there had been a material change of use of the land, amounting to a breach of planning control. The breach as specified in Schedule 2 of the notice was the “unauthorised use of the business premises as repair workshop for cars, and unauthorised storage of tyres and other materials on the roof of the premises.” The roof storage is not relevant to this appeal. The enforcement notice required the unauthorised use to cease and all tyres and other material associated with it to be removed within two months of the notice taking effect on 23 September 1994.[5]Mr Dowman appealed against the enforcement notice under section 174 of the Act, but only on ground (2)(b), namely that the matters alleged to amount to a breach of planning control had not occurred. He contended that the work at the premises related primarily to installing those car parts normally sold in the shop. The planning inspector rejected that argument. He referred in his decision to evidence of cars being serviced, paint spraying taking place and repairs being carried out. He found that the change of use had taken place and he therefore dismissed the appeal and upheld the enforcement notice. That decision letter was dated 26 July 1995. The enforcement notice therefore took effect.[6]However, it is clear that Mr Dowman did not obey the enforcement notice. On two subsequent occasions he was convicted of non-compliance with the notice and he was fined. Yet, as the judge found, he continued to be in breach of the enforcement notice, and consequently the planning authority sought an injunction.[7]The injunction sought was one requiring the cessation of the use of the premises “for the carrying out of repairs to motor vehicles and the removal of all tools and materials associated with the use.” This was refined in various ways by the time the matter was heard in the County Court, and there was further discussion after the judgment as to the form of the court’s order.[8]The matter was complicated, however, by the fact that it did not seem to be in dispute that a limited part of the current activities were not in breach of planning control. When the planning department of the authority had sought committee approval for the taking of enforcement action back in 1994, the officers’ report to committee said this about the history of the site:
“Between 1967 and 1987 the site was operating as a motor spares shop with tyre fitting and minor repairs. As such, the property has established use rights for such purposes. The current use is however a full blown car repairers and started in June 1993.”
[9]The judge saw that as being relevant to the exercise of her discretion. She said that as a general rule an enforcement notice does not take away all rights to use the land: such a notice will be read so as to protect lawful rights. She added that Mr Dowman sought to carry on with the activity of retail sales, with fitting facilities as ancillary to such sales. It is clear that the judge was anxious to ensure that any injunction spelt out which activities were prohibited, and she regarded it as too imprecise merely to repeat the terms of the enforcement notice.[10]In the event the order which she made restrained a number of specified activities those were:
“(a) the removal from or replacement from vehicles of clutches, gear boxes or the repair of exhaust mechanisms. (b) the activities of panel beating, paint spraying or similar repairs to vehicle body work. (c) carrying out of repairs of car engines apart from minor adjustments to vehicle engines as required following the supply and fitting of parts sold by the Defendant in his shop.”
[11]The order also restrained Mr Dowman from displaying advertisements promoting those activities and paragraph 3 of the order read as follows:
“After 4.00pm 17 December 2001 the Defendant must not use any air compressor or pneumatic tools except for use for the purposes of tyre removal, the fitting and inflation of tyres and the removal and the replacement of nuts and bolts.”
The planning authority is dissatisfied with the way in which the order has been worded and challenges it in this appeal.[12]The statutory power under the Act to grant an injunction to restrain a breach of planning control is contained in section 187B. Sub-sections (1) and (2) of that section provide 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.”
That power in the court has been the subject of recent consideration by the House of Lords in South Bucks District Council –v- Porter [2003] UKHL 26 [2003] 3 All E.R. 1. That decision makes it clear that this is an original jurisdiction vested in the court and not a supervisory one. The court thus has a discretion as to whether to grant an injunction and (I would add) as to the terms of any such injunction which is granted. That is not an unfettered discretion, but one to be exercised on normal principles, in particular whether it is just to grant an injunction and, since the Human Rights Act 1998, whether it is proportionate to do so. Nonetheless, issues of planning policy and judgment are in the exclusive purview of the local planning authority, so that the court should avoid being drawn into a consideration of such matters: see paragraphs 27 to 30 of the speech of Lord Bingham of Cornhill.[13]The power under section 187B is not on its statutory wording confined to cases where an enforcement notice has been served, although in most cases the court will be unwilling to grant an injunction where such a notice has not been served and subsequently disregarded. The statutory provisions relating to enforcement notices do therefore form part of the context in which the power to grant such injunctions should be seen. Section 179 makes it a criminal offence for the owner of the land to be in breach of an enforcement notice, once it has taken effect. Often this criminal sanction will suffice to ensure compliance.[14]Moreover, it has been established in a number of cases that, if such a criminal prosecution is brought, the enforcement notice should be interpreted in such a way as to exclude from its scope activities which are ancillary to the recognised primary use of the land or are permitted development under the Town and Country Planning (General Permitted Development) Order 1995 (“the 1995 Order”). In R .v. Harfield [1992] 2 PLR 23, the Court of Appeal Criminal Division quashed a conviction for using land in contravention of an enforcement notice. The notice had alleged a material change of use from use as a petrol filling station to a mixed use which included use for the parking of commercial vehicles, and the notice required the owner to discontinue the use of the land for the parking of commercial vehicles and to remove from it all commercial vehicles. The appellant’s defence had been that such parking of commercial vehicles as continued was merely that which was ancillary to the use of the land as a filling station, but the trial judge ruled that the enforcement notice required the removal of all commercial vehicles from the land. The Court of Appeal disagreed with this approach. It referred to the principle established in Mansi .v. Elstree Rural District Council [1964] 16 P&CR 154 that an enforcement notice cannot take away a legally permitted right such as the right to use land for any purpose which is ancillary to a primary permitted use. As a matter of interpretation therefore the enforcement notice must be construed so as to retain such a right.[15]That decision was referred to and followed by this court in the recent decision of Duguid .v. Secretary of State for the Environment, Transport and Regions [2001] 82 P&CR 52. In that case the landowner challenged the failure of a planning inspector to amend an enforcement notice requiring him to cease using his land for the purpose of markets and/or car boot sales. His argument was that the notice should have been amended so as to safeguard expressly his permitted rights under the 1995 Order for temporary use of the land for up to fourteen days each year. The Court of Appeal rejected this argument, holding that such an amendment was unnecessary because those lawful use rights would be safeguarded in any event as the Harfield case made clear. Whatever the wording of the enforcement notice, the landowner would not be at risk of prosecution if, having discontinued the permanent use of the land for such purposes, he then held no more that fourteen such markets in any one calendar year: see paragraphs 25 and 26.[16]These cases establish the position if a prosecution is brought for non-compliance with an enforcement notice. That position obtains, even though the landowner may have failed to take the opportunity to appeal against the enforcement notice itself under section 174(2) of the Act on ground (f), namely that the steps required by the notice to be taken exceed what is necessary to remedy any breach of planning control and even despite the prohibition on questioning the validity of the notice in any proceedings whatsoever contained in section 285(1), except by way of an appeal under Part VII of the Act, on any of the grounds on which an appeal may be brought under section 174. (I revert to the significance of section 285(1) later in this judgment).[17]But it seems to me, as it evidently did to the judge below, that the approach adopted in Harfield and Duguid has implications for the exercise of a court’s discretion when an injunction is sought under section 187B. If such an injunction is granted, it should not normally be so worded as to restrain the landowner from using his land in a way which is permitted development under the Act or the 1995 Order or is ancillary to the primary use of the land, that being a primary use which the enforcement notice does not seek to prevent. It would not normally be just for an owner to be at risk from an injunction for some use or activity for which he could not be successfully prosecuted under the enforcement notice.[18]In the present case, although the local planning authority questions whether there is any lawful use of the site, it is prepared to accept that an injunction should not seek to prevent activities ancillary to the shop use. But it is the authority’s case that the order as worded by the judge does not restrain the respondent from carrying on activities which are clearly beyond that. In essence it is said that the restrained activities are too narrowly defined in the court’s order.[19]Before coming to that issue, however, there is a preliminary matter raised by the respondent. In a respondent’s notice it is contended that the order should be upheld not only on the basis that Mr Dowman was entitled to carry on uses ancillary to the primary use as a shop but also on an alternative basis. That basis is that he was entitled “to carry on a composite use of a shop use along with minor repairs and tyre fitting activities.”[20]The distinction between these two alternatives is that in the latter the repair and tyre fitting activity would not have to be ancillary to the shop use but would itself be part of the primary use, a mixed use. In advancing this argument, Mr Litton who appears for the respondent refers to the passage in the officers’ report to committee set out earlier in this judgment which in 1994 described the premises as having established use rights for the purposes of “a motor spares shop with tyre fitting and minor repairs.”[21]It is submitted that such a mixed use can therefore be seen as a lawful use of the site and that the authorities establish that an enforcement notice will be interpreted so as to protect lawful rights of any kind. Reliance for that proposition is placed on Mansi, Cord .v. Secretary of State for the Environment [1981] JPL 40 and the Harfield and Duguid cases. Consequently the form of any injunction should allow that mixed use to be carried on at these premises.[22]In considering this submission it is necessary to examine what was being dealt with in the cases relied on. The earliest in time is Mansi, where a Divisional Court was hearing a statutory appeal under what is now section 289 of the Act against a Minister’s decision on an enforcement notice appeal. The court held that the enforcement notice went too far, in that it purported to forbid the sale of goods even to the extent that that had become part of the established use. Widgery J. said this as page 161:
“On the Minister’s own finding, there was a very old established use affecting these premises for the sale of goods by retail. True that use is a limited and restricted one, but nevertheless the planning Acts gave no power to the local planning authority to restrict or remove that use, such as it was. It seems to me that when this matter was before the Minister, the Minister should have recognised that a notice requiring discontinuance of all sale of goods went too far and that he ought to have amended the notice under the powers given to him so as to make it perfectly clear that the notice did not prevent the appellant from using the premises for the sale of goods by retail, provided that such sale was on the scale and in the manner to which he was entitled in 1959, as the Minister himself had found. True that use was a subsidiary one, but nevertheless it should be protected and, in my judgment, this appeal should be allowed to the extent that the decision in question should be sent back to the minister with a direction that he ought to amend the notice so as to safeguard the appellant’s established right as found by the Minister to carry on retail trade in the manner and to the extent to which the Minister has found it was carried on in 1959.”
[23]What is to be observed about that decision is that it was one made in the course of proceedings concerning the enforcement notice itself and at the time when the validity and wording of the notice was still a live issue. It was not dealing with a prosecution or with proceedings for an injunction taking place at some subsequent date.[24]Cord was again a Divisional Court decision which was again dealing with a statutory appeal to the court from a Minister’s decision on an enforcement notice appeal. The appeal site had an established use for domestic and residential purposes. The point was taken by the appellant landowner that the wording of the enforcement notice did not make an exception for such of the forbidden activities as were incidental to the use of the land as a dwelling house. The court, however, took the view that there was no need to include such an exception in the wording, because it would be readily understood by any bench of magistrates that such activities as were incidental to the dwelling house use were not caught by the enforcement notice. That approach was followed in the Duguid case, which was another case where no amendment to the wording of the enforcement notice was found to be necessary. Again, Duguid was concerned with a statutory challenge to an appeal decision on the enforcement notice itself. All three decisions therefore, that is to say Mansi, Cord and Duguid, were made in the course of enforcement notice proceedings, with the latter two cases making the point that an activity which is ancillary or incidental to a recognised primary use of the land or which is permitted by the 1995 Order cannot be the subject of a criminal prosecution, even if the literal wording of an enforcement notice would seem to apply to that activity.[25]Harfield then applies that approach in a case which was dealing with a prosecution. As already indicated earlier, it held that an enforcement notice must be interpreted so as to allow an activity ancillary to a primary use, about which there is no dispute, to continue.[26]What none of these authorities do is to provide that, when a subsequent prosecution is brought for breach of an enforcement notice, the defendant can re-open the issue of the extent of the established use rights enjoyed by the premises. That issue is a live one at the time of any appeal to the Secretary of State or the courts against an enforcement notice. But once the period for such an appeal has passed or the appeal has failed, section 285(1) becomes of particular significance. It provides:
“The validity of an enforcement notice shall not, except by way of an appeal under Part VII be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought.”
Those grounds include ground (f) in section 174(2), namely that the steps required by the notice to be taken exceed what is necessary to remedy any breach of planning control. It needs to be borne in mind that “validity” in section 285(1) does not mean simply the formal validity of the notice but its enforceability: see the decision of the House of Lords in Davy .v. Spelthorne Borough Council [1984] AC 262. If a landowner wishes to contend that the land has established use rights with which the enforcement notice would interfere, that point must be taken by way of an appeal under section 174. That need not be done in respect of some activity which is ancillary to a primary use not being enforced against, because such activity is seen as part and parcel of that unchallenged primary use. Nor need it be done in respect of a use which has permission under the 1995 Order. But if a landowner wants the issue of what established use rights, as primary uses, are enjoyed by the land, whether as single uses or as part of a mixed use, he must raise them on a section 174 appeal. That makes practical sense, since to conduct such an investigation perhaps many years later when there is an apparent breach of an enforcement notice and a subsequent prosecution would give rise to enormous difficulties.[27]This was the conclusion reached in Vale of White Horse District Council .v. Treble-Parker [1996] JPL B113. In that case an enforcement notice had taken effect, an appeal against it having been withdrawn. The notice required the storage and dismantling of vehicles and machinery on the land to cease but the storage of vehicles continued subsequently. Consequently a prosecution was brought. The justices found that the storage of vehicles had taken place for a period in excess of ten years before service of the enforcement notice and so the defendants were entitled to carry on that activity as an established use without planning permission. The justices acquitted the defendants. On appeal to the Divisional Court, that decision was reversed, it being held that section 285(1) prevented the leading of evidence to establish the lawfulness of an existing use. Such matters were to be dealt with at an enforcement notice appeal, and it was not open to a court on a subsequent prosecution to consider such issues.[28]A similar conclusion was reached by this court in North West Estates plc .v. Buckinghamshire County Council [2003] EWCA Civ. 719. In that case, the planning authority had sought and obtained an injunction in support of an enforcement notice which required the removal of certain buildings. On appeal to the Court of Appeal, it was argued that it was clear from earlier enforcement notice proceedings that the established use of a new workshop must be treated as lawful. The court was prepared to accept that. But Ward LJ, with whom the rest of the court agreed, went on to say this at paragraphs 40 to 42:
“The position at this stage of the argument is therefore this. The buildings are on the spoon-shaped parcel of land which is the subject of the enforcement notice. The enforcement notice was not appealed. Even if it had been open to the appellant to appeal against the enforcement notice and submit that because the established use in a new workshop is lawful, therefore the enforcement notice should be amended to exclude the workshop from its operation (the Mansi-type defence) it is now too late to run that argument. The enforcement notice stands. The appellant should comply with it Thus Mr Lindblom is thrown back to submitting that when the court comes to consider how to exercise the discretion conferred by s. 187B, the court must have regard to the Mansi-type defence that would have been available to it. The established use is lawful, it runs with the land, so he argues, and so the court cannot ignore that which is lawfully being done. Section 187B undoubtedly gives the court a wide discretion. South Buckingham D.C. .v. Porter isanauthoritywhich would permit the planning history of the site to be considered. The relevant feature of the planning history upon which Mr Lindblom relies is, of course, the findings made in the 1995 enforcement notice appeals that there was established use for the engineering operations being conducted from the new workshop. That may be a matter of history. As a feature of the background the court can noteit. But it cannot be elevated into a disguised challenge to the validity of the enforcement notice itself. It is too late for that.”
[29]I agree with that approach. It follows that it is not open to the respondent to argue at this stage that the use of these premises in Neasden for repairs to vehicles which goes beyond activity ancillary to the shop use is an established lawful use. It cannot now be contended that the premises enjoy a mixed use, including minor repairs, as a primary use. The respondent might have argued that in 1994-1995, but he can no longer do so. I accept that in injunction proceedings such as this the court has a wide discretion, as was pointed out in the North West Estates case, but the reference in the officers’ report in 1994 to what they thought was the established use at that time, while it can properly be taken into account, cannot be “elevated into a disguised challenge to the validity of the enforcement notice itself”. That is in effect what the respondent is now seeking to do. It would be an absurd situation if Mr Dowman could be successfully prosecuted for repairs which went beyond those ancillary to the shop use and yet the court was not prepared to grant an injunction to restrain breaches of the enforcement notice. I therefore reject the point taken in the respondent’s notice. This appeal must be considered on the footing that any repairs could only be legitimate if ancillary to the shop use.[30]I return therefore to the arguments advanced by the appellant authority as to why the order as made below is too limited in the activities it restrains. Mr Sefi, who appears on behalf of the authority, points to various activities, such as the testing and tuning of engines, the servicing of cars, the draining of engine oil and other matters which are not covered by the order as it stands and yet which could not properly be regarded as ancillary to the shop use. While he recognises that the judge had a discretion, he points out that the judge advances no reasons in her judgment for excluding those activities, which were in a list drawn up by the appellant as one of the two ways in which it suggested the order should be formulated.[31]The other way in which the appellant proposed in the court below that the order should be framed was one which adopted a more general description of the activities to be restrained rather than the method of including a list of a number of specified acts. What was advocated was the following wording:
“The Defendant Mr Morris Marcus Dowman after 4.00p.m. on 31st January 2002 must not cause or permit the use of the premises known as 572 North Circular Road Neasden as a repair workshop for cars, provided that these premises may be used for fitting to cars goods sold in the shop in a manner ancillary to the use of the premises as a retail shop…”
[32]It is recognised that such a formulation lacks the precision of the list approach, but it is contended that it is inevitable in cases involving planning control that the courts will have to grapple at some stage with the factual problem of whether a particular activity is ancillary to a primary use or not. Reliance is placed on the decision of Poole J in Kettering Borough Council .v. Perkins [1999] JPL 166, where an injunction appears to have been sought to restrain the breach of an enforcement notice which required the defendant “to stop using the land for retail sales to the public of second hand parts and components save for sales at such a level as would be ancillary to vehicle dismantling and storage within the use permitted under the 1960 permission.” It was objected that such an injunction would be too imprecise.

The judge did not agree, saying at page 173:

“Furthermore, while the clear rule is that injunctions should be as precise as possible, it is not an absolute rule; see Halsbury, Vol. 24, paragraph 975. If adequate protection cannot be given in any other way an injunction may be granted in extensive terms. There are issues here of traffic movement, traffic generation and hence of road safety, and as Mr Findlay argued, the concept that a person should be restricted to his permitted use is hardly a novel one. I was referred to Elliot .v. N.E. Railway Co. (1863) 10 H.L. cases 333 and Vere .v. Minter (1914) 49 L.J. 129 as instances of cases in which, admittedly on quite different facts, injunctions had been approved though drafted in fairly extensive terms. Finally, it was argued, the burden would be on the plaintiff in any proceedings for committal to prove that a breach had occurred, and no court would take action unless the breach was clear. On a full consideration of the arguments and the authorities I have concluded that the plaintiff is entitled to an injunction in the terms sought, and that the granting of such an injunction works no unfairness and imposes on the defendant no burden or obligation that is undue.”
[33]Finally, Mr Sefi seeks to have added to any order a requirement that the defendant remove from the premises a number of items of equipment, namely “(a) electric powered tyre removing machine, grinding, cutting, welding, drilling, wrenching and cutting equipment and air impact and ratchet tools (b) any pneumatic power tools (c) any clutch gear box engine or exhaust mechanism (d) powered wheel balancing machine.”[34]None of those items, he submits, could properly be regarded as being required for a use ancillary to a shop or sales use.[35]For the respondent Mr Litton submits that the judge here had a discretion with which this court ought not to interfere unless satisfied that the exercise of discretion was irrational. That cannot be so concluded. Indeed, it is said that the judge must have regarded the omitted activities as ancillary ones, or at least capable of being so regarded if the planning authority brought further proceedings for breach of the enforcement notice. The judge arrived at a sensible solution, given the difficulties which she faced. She was also anxious to provide as much certainty as she could, so that Mr Dowman would know what he could and could not do. The order as made therefore should stand.[36]On the removal of equipment, Mr Litton emphasises that the requirements of the enforcement notice are not specifically directed to the removal of equipment. He contends that the reference in the enforcement notice to removing all tyres and “other material” is not wide enough or appropriate to encompass such equipment. Moreover, tyre changing has been accepted by the Council as ancillary to shop use, so electrical tyre removing equipment should not be removed.[37]I entirely accept that this court should not interfere with the exercise of a lower court’s discretion unless it is satisfied that such exercise is clearly wrong or is irrational. But when that court has not given reasons for adopting a particular approach contrary to one’s party’s case, this court must examine the exercise of discretion with more care.

The judge here was trying to achieve two aims:

[38]first to exclude from the ambit of the injunction those activities which were not (in her view) in breach of planning control; secondly to ensure that the wording of the order was sufficiently precise as to be enforceable and as to inform the recipient what it was that he must not do on the premises. The latter objective led her to adopt the list approach to the drafting exercise.[39]There is a problem about that. We are told that there was no expert evidence before the court to explain what operations ought to be included in such a list, subject to any exclusion for activities ancillary to the shop use. That made the judge’s task much more difficult. The list ought, in principle, to have been a comprehensive one, subject to the exclusion of the ancillary activities. It is difficult to discern on what basis a number of the activities which the planning authority sought to restrain were omitted by the judge from the list. I see the force of the argument advanced by Mr Sefi on this. In the absence of any reasoning for their omission, I cannot understand why the list did omit them. I can see no rational basis for it and I therefore would be prepared in this unusual case to interfere with the way in which the judge exercised her discretion.[40]But in any event my preference is for the more general formulation of the injunction, the first preference of the planning authority. That avoids the difficulty of the lack of evidence about the operations comprised in a repair workshop, a difficulty inherent in the list approach. In so saying I recognise that the more general formulation lacks the precision of the list format. But that is not fatal, as Poole J emphasised in the Kettering case. Moreover, as the facts of the Harfield case demonstrate, in planning cases courts are from time to time inevitably going to have to deal either on prosecution or in committal proceedings with the factual issue of whether some activity was ancillary to a primary use or not. Thus in Harfield it was open to the defendant to seek to show that any parking of commercial vehicles was merely ancillary to the use as a filling station. That sort of issue may not always be very easy for a court to determine, but it is unavoidable when a prosecution is brought and such a defence is raised. It is no graver a problem in committal proceedings than on a criminal prosecution for breach of an enforcement notice.[41]I therefore would amend the order made below so as restrain Mr Dowman from using or causing or permitting the use of 572 North Circular Road, Neasden as a repair workshop for vehicles, provided that the premises may be used for fitting to cars goods sold in the shop in a manner ancillary to the use of the premises as a retail shop.[42]However, I do not believe that this court has before it sufficient evidence to be able to judge what equipment would be appropriate on the premises in order to carry out the fitting activities ancillary to the shop use and what equipment would be unnecessary for that purpose. I therefore would not be prepared to include in any injunction the additional paragraph sought by the appellant authority relating to the removal of equipment.[43]Nonetheless, to the extent indicated in paragraph 41, I would allow this appeal. Paragraphs 2 and 3 of the order would remain as formulated in the court below.[44]The London Borough of Brent (“the Council”) seek to restrain business activities by Mr Morris Dowman at his premises at 572, North Circular Road, Neasden. They do so on the basis of an enforcement notice, an appeal against which was dismissed, requiring Mr Dowman, amongst other things, permanently to cease the unauthorised use of the business premises as a repair workshop for cars. There was evidence before the judge of convictions for non-compliance with the notice and of continuing non-compliance. It was appropriate for the Council to seek relief by way of injunction.[45]I agree that any injunction should take the form proposed by Keene LJ in paragraph 41 of his judgment for the reasons given in paragraph 40. Factual issues will inevitably arise if there are further proceedings. I also agree that, if this Court decides that an injunction is appropriate, the Court is in the circumstances entitled to depart from the judge’s formulation.[46]My difficulty has been, given the approach which the Court should adopt towards the grant of injunctions in circumstances such as these, as laid down in South Bucks District Council v Porter [2003] UKHL 26 [2003] 3 All E.R. 1, as to whether the Council should be granted an injunction as broad as to restrain Mr Dowman from using the premises as a “repair workshop for vehicles” when the evidence is that when they took enforcement action they accepted that the premises had established use rights for uses including “minor repairs”. That appears in the planning officer’s report to Council recommending enforcement action and there is no evidence that the decision making body other than adopted that view. Moreover, the Council’s submission to the judge, as recorded by her, was that “tyre fitting can be ancillary to the retail shop and that some further limited activities can be permitted within the proposed injunction”.[47]The point arose only late in the hearing before this Court. For Mr Dowman, Mr Litton had during most of the hearing accepted the position that the function of the Court was to find a form of words on the basis that the use was restricted to “retail sales with fitting facilities, as ancillary to such sales”. Counsel, who did not appear below, was permitted to take the point that an injunction which had the effect of limiting activities to the extent apparently proposed was not in the circumstances just and convenient.[48]In Porter, Lord Scott of Foscote stated, at paragraph 99:
“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.”
The decision of the House of Lords postdates that of the judge.[49]Lord Scott also affirmed the principle stated by Keene LJ by reference to Vale of White Horse District Council v Treble-Parker [1996] JPL B113, and other cases, that the court could not “properly refuse an injunction simply on the ground that it disagreed with the planning decisions that had been taken” (paragraph 100). Lord Scott added that “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”.[50]I respectfully agree with the approach of Lord Scott and with his assimilation (at paragraph 98) of the expression “just and convenient” in section 37 of the Supreme Court Act 1981, as stating the appropriate criteria for deciding whether to grant an injunction, with the expression “appropriate” in section 187B of the Town and Country Planning Act 1990, which was under consideration in Porter. That being so, the decision “necessarily involved an exercise of judgment weighing the factors for and against the grant of an injunction” (per Lord Steyn at paragraph 50). The countervailing consideration in this case is not, as in Porter, hardship, but the apparent acceptance by the Council of a somewhat broader use on the premises than that which, on a strict reading of the proposed injunction, might be permitted. The principle in Treble-Parker does not go so far as to prevent reliance by the owner upon the Council’s own view of the rights he has.[51]I have, however, come to the conclusion that the Council are entitled to an injunction in the form stated by Keene LJ. It would not be helpful to attempt to draft a form of words which would provide for the limited concessions made by the Council. Mr Dowman’s protection, if dispute arises on the facts, is in the somewhat broad meaning which the Council appear to be prepared to give to the word ancillary in the circumstances and in the good sense of Council officers. The judge considered the point at page 11 of her judgment. I underline that “minor repairs” is inevitably a limited concept and could not include many of the repairing activities about which evidence was given.[52]I also agree that the injunction should not include provision for the removal of equipment from the premises. As Keene LJ states at paragraph 42, there is insufficient evidence to permit a judgment as to what equipment would be appropriate to the permitted activities. I would, however, go further. It does not necessarily follow from a finding that a business use is not permitted that an order should be made requiring equipment which could be used to carry out that use be removed from the premises. In some circumstances it may be necessary to order removal to give efficacy to the order of the Court but the burden is upon the party seeking the injunction to show that the order for removal is necessary in the particular circumstances. Interference with an owner’s right to retain his goods on his premises would need to be justified.[53]I agree that the appeal should be allowed to the extent indicated by Keene LJ.