“First, no or no good reason has been given by the defendants to justify not seeking planning permission for the operational development which has clearly taken place on the land over a significant period of time. Secondly, … there have been serious, flagrant and repeated breaches of planning control which have already caused material environmental harm. Thirdly, … the evidence suggests that there is a real and significant prospect of further significant unauthorised development and further environmental harm. Fourthly, unless restrained by an injunction, … it is, in my judgment, likely that further breaches of planning control will be committed or unlikely to be committed. If an injunction is not granted and that risk is realised, it will, in my judgment, be difficult to undo the consequential environmental harm. Further, as the relatively long planning enforcement history shows as does the content of the 20 enforcement notices, there is no sound basis on the material before me today upon which to conclude that alternative enforcement measures will, or are likely to, prevent further breaches of planning control. …. I accept that a prosecution for a failure to comply with enforcement notices served under the Act, even if successful, would not provide the redress that is necessary to ensure effective enforcement of planning control to stop unauthorised activity on the land and to preserve the status quo pending the final determination of the claim. That is because the sanction would be limited to a fine. …”
“(1) The court may proceed with a trial in the absence of a party but – (c) if a defendant does not attend, it may strike out his defence or counterclaim (or both). (2) Where the court strikes out proceedings, or any part of them, under this rule, it may subsequently restore the proceedings, or that part. (3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside (5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant – (a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him; (b) had a good reason for not attending the trial; and (c) has a reasonable prospect of success at the trial.”
“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.” (b) The court must decide whether in all the circumstances it is just to grant an injunction. Lord Bingham observed (South Buckinghamshire, para.29): “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. (c) There is no single test for the court's discretion should be exercised in favour of granting an injunction because it is a fact-specific assessment. However (South Buckinghamshire, para.29): “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…, 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…” (d) In this regard, the Court in Chelmsford City Council v Mixture[2024] EWHC 1006 (KB) observed: “There can be no justification for wilful and persistent non-compliance with the Enforcement Notices and the continued use of the Land in breach of planning control” (paragraph 43) and that the fact that “The Defendant has not complied with any of the Enforcement Notices served by the Claimants and has displayed no willingness to do so” meant that “His conduct indicates a wilful, and flagrant, disregard for the integrity of the planning system” (paragraphs 45 to 46). (e) A local planning authority cannot exercise its power under section 187B unless it considers it necessary or expedient to restrain a breach of planning control by seeking an injunction rather than some other means of enforcement (South Buckinghamshire, para.71). (f) Although it is not for the court to question the correctness of planning decisions which have been taken, the court should come to a broad view about the degree of environmental damage resulting from the breach and the urgency, or otherwise, of bringing it to an end (South Buckinghamshire, para.38, approving the observations of Brown LJ in the Court of Appeal). (g) The achievement of the legitimate aim of preserving the environment does not always outweigh countervailing rights or factors. Injunctive relief is unlikely to be granted unless it is a commensurate remedy in the circumstances of the case. Ultimately, it is the court’s task to strike the balance between competing interests weighing one against the other. (South Buckinghamshire, para.38, approving the observations of Brown LJ in the Court of Appeal). (h) The hardship likely to be caused to a defendant by the grant of an injunction to enforce the public law will always be relevant to the court’s decision whether or not to grant the injunction. In many cases, the hardship prayed in aid by the defendant will be of sufficient weight to counterbalance a continued and persistent breach of planning control. Lord Bingham said (South Buckinghamshire, para.31): “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 none the less 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.” (i) In that regard, Lord Scott added (South Buckinghamshire, para.102): “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.”
“This is not a case where the breach of planning control is clear, such as, for example, the carrying out of significant operational development. Nor is any breach flagrant in the sense of being carried out in an area of environmental sensitivity or in an area subject to strong development control policies, such as the green belt.”
“the breaches of planning control on the Land which have occurred previously have already made a deleterious transformation of the land from an attractive open green field site to a subdivided unsightly field with haphazard unauthorised development … It is considered that the impact of this unauthorised development within the Green Belt will harm the character and appearance of the immediate and surrounding area, including the intrinsic value of the Area of Great Landscape Value. Further, there is a serious risk that further unauthorised development will likely have an adverse ecological impact on the land. Any new unauthorised residential development would also cause harm to the Thames Basin Special Protection Area as increased residential occupation is deemed to cause harm to the habitats of the wild birds that are protected at this European Site.”
“I note that the Claimant did not seek to remedy the position itself by removal of the site. Nor did it seek to prosecute any or all of the Defendants for non-compliance of the Enforcement Notice. Whilst these are steps that could have been taken by the Claimant as alternatives to seeking an injunction, I accept the submission of the Claimant that neither route would have led to an appropriate or proportionate remedy in the circumstances of the case. The former would have involved considerable public expenditure. The latter would have involved a criminal sanction and would not have achieved the objective of removing the materials from the site which amounted to breaches of planning control. I consider that there was good and sufficient reason for the Claimant to conclude that neither remedy was an appropriate way of dealing with the breaches.”
“The Council believed that trying to rely solely on less invasive statutory redresses, such as the enforcement notices which have already been served at the Land would be insufficient to address the apprehended material harm. A prosecution will, if successful, only result in a fine and will not remedy the material harm and will not offer an urgent solution. Direct action under section 178…could remedy the existing harm however the complex nature of the ownership and regular sub-division and sale of the Land is such that it is limited to the identified harm subject to an Enforcement Notice and would to prevent further harm. The Council believes only an injunction will provide adequate protection against the material harm to the Land and its special character.”
“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.”
“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 underArticle 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.”
“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”
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
“I remain conscious of the duty to uphold lawful decisions made by planning authorities. I must also bear in mind the consequences of a final injunction when there are no alternative sites available, and the defendants are likely to resort to unauthorised roadside camping which would lead to further environmental harm and hardship for the families and children in terms of their welfare needs not being met. These are significant factors militating against the grant of a final injunction on the facts of this case.”
“• The best interests of a child are an integral part of the proportionality assessment underarticle 8 ECHR ; • In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child's best interests do not of themselves have the status of the paramount consideration; • Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant; • While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play; • It is important to have a clear idea of a child's circumstances and of what is in a child's best interests before one asks oneself whether those interests are outweighed by the force of other considerations; • To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and • A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.”