London Borough of Hackney v Shiva Ltd & Ors [2020] EWHC 2489 (QB) (18 September 2020)

London Borough of Hackney v Shiva Ltd & Ors [2020] EWHC 2489 (QB) (18 September 2020)

There is a serious issue to be tried as to whether the installation of 'Sharks!' constitutes a material change of use requiring planning permission. The balance of convenience favours the continuation of prohibitory injunctive relief and the grant of mandatory relief for removal of the installation, given the planning history, the ineffectiveness of traditional enforcement, and the public interest in upholding planning control in a conservation area. Damages are not an adequate remedy for the claimant, and the defendants' losses are largely already incurred. There was no material non-disclosure by the claimant.

Citation
[2020] EWHC 2489
Parties
Claimant: THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HACKNEY; First Defendant: SHIVA LIMITED; Second Defendant: ANTEPAVILION LIMITED; Third Defendant: THE ARCHITECTURE FOUNDATION LIMITED; Fourth Defendant: BARKER SHORTEN ARCHITECTS LLP; Fifth Defendant: PERSONS UNKNOWN EFFECTING THE MATERIAL CHANGE OF USE OF THE REGENTS CANAL FOR THE DISPLAY OF ART INSTALLATIONS WITHOUT THE BENEFIT OF PLANNING PERMISSION; Sixth Defendant: PERSONS UNKNOWN CAUSING OR PERMITTING THE UNAUTHORISED MATERIAL CHANGE OF USE OF THE LAND TO A MIXED USE INCLUDING FOR THE DISPLAY OF ART INSTALLATIONS WITHOUT THE BENEFIT OF PLANNING PERMISSION
Jurisdiction
England and Wales
Judgment Date
18 September 2020
Procedural Posture
Interim Injunction Application (return Date) / High Court, Queen's Bench Division, Post Interim Order, Application to Continue and for Mandatory Relief
Outcome
Prohibitory injunctive relief continued; mandatory relief granted against first defendant to remove the installation; no further relief against third defendant; fourth defendant remains a party.
Legal Topics
Injunctions, Material Change of Use, Planning Enforcement, Conservation Areas, Listed Buildings, Ancillary Use, Balance of Convenience, Article 10 ECHR
Planning Law Local Government Law Civil Procedure Injunctions Material Change of Use Planning Enforcement Conservation Areas Listed Buildings +3 more

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Parties

THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HACKNEY

Claimant

SHIVA LIMITED

First Defendant

ANTEPAVILION LIMITED

Second Defendant

THE ARCHITECTURE FOUNDATION LIMITED

Third Defendant

BARKER SHORTEN ARCHITECTS LLP

Fourth Defendant

PERSONS UNKNOWN EFFECTING THE MATERIAL CHANGE OF USE OF THE REGENTS CANAL FOR THE DISPLAY OF ART INSTALLATIONS WITHOUT THE BENEFIT OF PLANNING PERMISSION

Fifth Defendant

PERSONS UNKNOWN CAUSING OR PERMITTING THE UNAUTHORISED MATERIAL CHANGE OF USE OF THE LAND TO A MIXED USE INCLUDING FOR THE DISPLAY OF ART INSTALLATIONS WITHOUT THE BENEFIT OF PLANNING PERMISSION

Sixth Defendant

Procedural Posture

Interim Injunction Application (return Date) / High Court, Queen's Bench Division, Post Interim Order, Application to Continue and for Mandatory Relief

Legal Issues

  1. 1 Whether the installation of 'Sharks!' constitutes a material change of use requiring planning permission
  2. 2 Whether prohibitory and mandatory injunctive relief should be continued/granted under section 187B of the Town and Country Planning Act 1990
  3. 3 Whether there was material non-disclosure by the claimant

Ratio Decidendi

There is a serious issue to be tried as to whether the installation of 'Sharks!' constitutes a material change of use requiring planning permission. The balance of convenience favours the continuation of prohibitory injunctive relief and the grant of mandatory relief for removal of the installation, given the planning history, the ineffectiveness of traditional enforcement, and the public interest in upholding planning control in a conservation area. Damages are not an adequate remedy for the claimant, and the defendants' losses are largely already incurred. There was no material non-disclosure by the claimant.

Court Disposition

Prohibitory injunctive relief continued; mandatory relief granted against first defendant to remove the installation; no further relief against third defendant; fourth defendant remains a party.

Orders

  • Continuation of prohibitory injunction restraining use of the site and canal for art installations without planning permission
  • Mandatory order requiring first defendant to remove the partially installed 'Sharks!' installation