Wrexham County Borough Council v Berry

Factual and Procedural Background

Three conjoined appeals reached the House of Lords. Each originated in an injunction granted at first instance to restrain Gypsy families from occupying land without planning permission. The claimants were three separate local planning authorities (“Local Authority A,” “Local Authority B,” and “Local Authority C”). The defendants (“Defendant A,” “Defendant B,” and “Defendant C”) had either purchased or owned land on which they stationed caravans after repeated refusals of planning permission.

• In each case an enforcement notice was authorised and an injunction was eventually granted under section 187B of the Town and Country Planning Act 1990 (“TCPA 1990”).
• The Court of Appeal (Judge Brown LJ, Judge Gibson LJ and Judge Tuckey LJ) allowed the defendants’ appeals, set aside the injunctions, and issued guidance on the correct approach to section 187B.
• The three local authorities obtained leave to appeal to the House of Lords, contending that the Court of Appeal had overstated the breadth of the court’s discretion when deciding whether to grant an injunction.

By the time the appeals were heard in the House of Lords, planning appeals by Defendant A and Defendant C had succeeded, and Defendant B had vacated the land. Nevertheless, the authorities pursued the appeals to clarify the law.

Legal Issues Presented

1. Whether the jurisdiction conferred on the High Court by section 187B TCPA 1990 is an original discretionary jurisdiction or merely a supervisory review of the local authority’s decision to seek an injunction.
2. Whether, when exercising that jurisdiction, the court may (and must) consider personal hardship and Article 8 ECHR proportionality before granting an injunction to restrain an actual or threatened breach of planning control.
3. Whether earlier Court of Appeal authority (notably Mole Valley DC v Smith and Hambleton DC v Bird) should still govern the exercise of discretion under section 187B.

Arguments of the Parties

Local Authorities’ Arguments

• The court’s function is supervisory; it should grant an injunction once a breach is proved unless the local authority’s decision is Wednesbury-irrational.
• Weighing personal hardship usurps the democratically accountable planning process; such matters are for elected authorities and the Secretary of State, not the court.
• Proportionality under Article 8 ECHR arises, if at all, only at the committal stage, not when the injunction is first granted.
• Past decisions (Mole Valley and Hambleton) correctly confined the court’s discretion.

Defendants’ Arguments

• Section 187B confers an original equitable jurisdiction; the court must decide for itself whether an injunction is “appropriate.”
• Because injunctions expose defendants to imprisonment, they should be granted only where strictly necessary; if the court would not contemplate committal, it should not enjoin.
• The Human Rights Act 1998 requires the court to conduct its own Article 8 balancing exercise; proportionality cannot be delegated to the local authority.
• Mole Valley and Hambleton adopted an unduly narrow view of discretion and are inconsistent with modern human-rights standards.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Bingham (with Judges Steyn, Clyde, Hutton and Scott concurring) set out the following analytical steps:

1. The jurisdiction under section 187B is original and equitable; the permissive word “may” and the phrase “as the court thinks appropriate” confer a broad discretion grounded in section 37 Supreme Court Act 1981.
2. While great respect is due to democratically accountable planning decisions, Parliament expressly required a court decision before the powerful sanction of an injunction is imposed.
3. An injunction is a “weapon of last resort.” The court must be satisfied that lesser statutory mechanisms (enforcement notices, stop notices, prosecution) will not achieve compliance.
4. Because breach of an injunction exposes a defendant to imprisonment, the court should not grant one unless it is prepared, in principle, to enforce it via committal.
5. Article 8 ECHR is engaged where the injunction would require a person to leave his or her home. Under the Human Rights Act 1998 the court, as a public authority, must itself conduct the proportionality balancing exercise.
6. Personal hardship, health, availability of alternative sites and wider social realities facing Gypsies are therefore relevant factors. Earlier authorities that ignored such matters are no longer sound.
7. Applying those principles: the first-instance judges in all three cases treated their discretion as fettered by Mole Valley and Hambleton and failed to weigh hardship adequately; the Court of Appeal was correct to set aside the injunctions.

Holding and Implications

Appeals DISMISSED.

• Guidance issued by the Court of Appeal on the exercise of discretion under section 187B is endorsed.
• Cases of Defendant A and Defendant C are remitted for fresh determination; no remission is ordered in Defendant B’s case, which has become academic.

Implications: The decision affirms that courts must independently assess proportionality and personal hardship before granting planning injunctions. It recalibrates earlier case-law and ensures Article 8 compliance, but preserves injunctions as a potent, though exceptional, enforcement tool. No new statutory rule is created, yet the ruling effectively reshapes practical enforcement by requiring a full merits-based judicial inquiry into whether an injunction is just, convenient and proportionate.