South Bucks District Council v Porter

Factual and Procedural Background

These four appeals concern the exercise of the court's power under section 187B of the Town and Country Planning Act 1990, which allows a local planning authority to apply for an injunction to restrain breaches of planning control. The appellants in each case are gipsies residing in mobile homes on land they occupy without planning permission. Injunctions were granted in all four cases requiring the appellants to vacate the land. The appeals centrally involve article 8 of the European Convention on Human Rights (ECHR), concerning the right to respect for private and family life and home. It is undisputed that removal interferes with these rights but is lawful and pursues the legitimate aim of environmental protection. The key question is whether the interference is necessary and proportionate, but the appeals focus on whether the lower courts correctly directed themselves in exercising their discretion under section 187B.

Brief summaries of the four cases are as follows:

• Porter v South Bucks District Council: The appellants lived on a Green Belt site in Buckinghamshire in breach of planning control with a long history of refused planning applications and enforcement notices. Injunctive relief was granted requiring cessation of caravan use and removal of structures.
• Searle v Chichester District Council: The appellants occupied a countryside plot without permission after assurances they would not do so. An injunction was granted with immediate effect to remove mobile homes and cease residential use.
• Berry v Wrexham County Borough Council: The appellant, a traditional gipsy traveller with family, moved to a site in the Green Barrier after eviction from a council-owned site. Planning permission applications were refused, and an injunction was granted requiring removal of caravans and vehicles.
• Harty v Hertsmere Borough Council: Six related gipsy families occupied a Green Belt site with a history of enforcement notices and refused planning permissions. Despite undertakings not to return, the families re-occupied the site. An injunction was granted requiring cessation of caravan use and removal of caravans and vehicles.

Legal Issues Presented

1. What is the proper approach for the court in exercising its discretion under section 187B of the Town and Country Planning Act 1990 when granting injunctions to restrain breaches of planning control involving gipsy caravan sites?
2. To what extent should the court exercise an independent judgment versus deferring to the planning authority's decisions and balancing of interests?
3. How does article 8 of the ECHR impact the court's discretion to grant injunctive relief in these cases?
4. Is the existing approach to section 187B compatible with the Human Rights Act 1998?

Arguments of the Parties

Appellants' Arguments

• The court under section 187B(2) has an absolute discretion to grant or refuse injunctions and should not merely review the planning authority's decision.
• Injunctions are a severe remedy potentially punishable by imprisonment and should only be granted when clearly appropriate and proportionate.
• The court must consider all questions of hardship, including availability of alternative sites and the personal circumstances of the gipsies, before granting an injunction.
• Since the Human Rights Act 1998, the court must itself assess whether removal is proportionate under article 8 and not defer excessively to planning authorities.
• The planning history and decisions of the authorities are relevant but do not determine the court's independent judgment on proportionality.
• The court should be prepared to enforce injunctions by imprisonment if necessary, only granting them in clear cases where removal is justified.

Respondents' Arguments

• The court's role under section 187B is supervisory and it should generally grant an injunction unless the local planning authority's decision is Wednesbury unreasonable.
• The planning authority's balancing of interests should be respected and the court should not reassess planning merits or policy decisions.
• The court only steps outside the planning code at the enforcement stage, not at the injunction granting stage.
• The Human Rights Act 1998 does not alter the court's limited review jurisdiction at the injunction stage.
• Once planning status is final, the legitimate aim of preserving the environment is only achievable by removal, and the court should recognize this in proportionality assessments.
• One respondent authority accepts the court has discretion but submits it should not decide planning permission questions and should only grant injunctions if prepared to enforce them.

Table of Precedents Cited

Court's Reasoning and Analysis

The court recognized that section 187B grants the court discretion to grant injunctions to restrain breaches of planning control but emphasized that this discretion is not unfettered. The court must assume the planning merits and breach as established within the planning process and not act as a court of appeal on planning decisions. However, the court must consider whether it would be prepared to enforce the injunction, including by imprisonment if necessary, and thus must weigh questions of hardship and proportionality, including the availability of alternative sites and the personal circumstances of the appellants.

The court rejected extreme positions: it is neither bound to grant injunctions merely because the planning authority applies for them, nor entitled to substitute its own planning judgment for that of the authority. Instead, the court must exercise a structured and articulated discretion, balancing the public interest in enforcing planning control and protecting the environment against the private rights of the appellants under article 8, including their ethnic identity and home life.

The court found that the approach in earlier cases (Mole Valley, Hambleton) which limited the court's discretion was no longer consistent with the Human Rights Act 1998 and article 8. The court must now ensure that injunctions are proportionate and commensurate remedies. The court also noted the importance of the planning authority's decision to seek injunctions and the weight to be given to their consideration of article 8, but stressed that the court's discretion remains independent.

Regarding the four appeals, the court held that the first three injunctions were granted under a now outdated approach that did not properly consider hardship and proportionality post-Human Rights Act and must be reconsidered. The fourth appeal involved a site with a complex planning history and repeated breaches; the court found the judge had properly exercised discretion and balanced interests, so that injunction was upheld.

Holding and Implications

The court allowed the appeals in the first three cases, indicating that the injunctions granted there were based on an approach inconsistent with the Human Rights Act 1998 and article 8, and that the courts below had failed to exercise the appropriate discretion considering proportionality and hardship.

The court dismissed the appeal in the fourth case, finding that the injunction was properly granted after a full balancing exercise and recognition of the repeated breaches and planning history.

The immediate effect is that the first three injunctions must be reconsidered at first instance with proper application of the Human Rights Act and article 8 principles, including the court's independent judgment on proportionality. No new binding precedent is established beyond clarifying that the court's discretion under section 187B is broader than previously applied and must be exercised compatibly with Convention rights.