South Bucks District Council v Smith & Anor [2006] EWHC 281 (QB) (23 February 2006)

South Bucks District Council v Smith & Anor [2006] EWHC 281 (QB) (23 February 2006)

Although the Defendants have occupied the site unlawfully for many years and the planning history is strongly against them, the recent government Circular and the lodging of a fresh planning application mean there is now a real, non-fanciful prospect of planning permission being granted. Therefore, while the injunction is granted, its operation is suspended until the planning application (and any appeal) is finally determined, as immediate enforcement would not be a proportionate response at this stage.

Citation
[2006] EWHC 281
Parties
Claimant: South Bucks District Council; First Defendant: Andrew Smith; Second Defendant: James Smith
Jurisdiction
England and Wales
Judgment Date
23 February 2006
Procedural Posture
Injunction Application Under Section 187 B of the Town and Country Planning Act 1990 / High Court Judgment on Application for Injunction
Outcome
Injunction granted but suspended
Legal Topics
Injunctions Under Town and Country Planning Act 1990, Green Belt Policy, Gypsy and Traveller Rights, Article 8 ECHR, Proportionality in Planning Enforcement
Planning Law Human Rights Law Administrative Law Injunctions Under Town and Country Planning Act 1990 Green Belt Policy Gypsy and Traveller Rights Article 8 ECHR Proportionality in Planning Enforcement

Case Brief

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Parties

South Bucks District Council

Claimant

Andrew Smith

First Defendant

James Smith

Second Defendant

Procedural Posture

Injunction Application Under Section 187 B of the Town and Country Planning Act 1990 / High Court Judgment on Application for Injunction

Legal Issues

  1. 1 Whether an injunction should be granted under section 187B of the Town and Country Planning Act 1990 to restrain residential use of land in breach of planning control
  2. 2 Whether the grant of an injunction would be a proportionate interference with the Defendants' Article 8 rights
  3. 3 Whether recent changes in government policy and a fresh planning application affect the appropriateness or timing of injunctive relief

Ratio Decidendi

Although the Defendants have occupied the site unlawfully for many years and the planning history is strongly against them, the recent government Circular and the lodging of a fresh planning application mean there is now a real, non-fanciful prospect of planning permission being granted. Therefore, while the injunction is granted, its operation is suspended until the planning application (and any appeal) is finally determined, as immediate enforcement would not be a proportionate response at this stage.

Court Disposition

Injunction granted but suspended

Orders

  • An injunction is granted restraining the Defendants from using the land for residential purposes and requiring removal of caravans and vehicles, but its operation is suspended until the determination of the Defendants' current planning application, including any appeal.