Judgments - Wrexham County Borough Council (Appellants) v. Berry (Respondent) South Bucks District Council (Appellants) v. Porter and another (FC) (Respondents) Chichester District Council (Appellants) v. Searle and others (Respondents) (Consolidated Appeals

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    89. I consider that the factors stated by Simon Brown LJ properly reflect the considerations which in Chapman the European Court stated should be taken into account and that a court which follows the guidance given by him will be acting compatibly with Article 8.

    90. Whilst I do not express a concluded opinion on the point which was not the subject of detailed argument before the House, I see no reason to doubt the view expressed by Laws LJ in Sheffield City Council v Smart [2002] LGR 467, 486 D that there are some statutory regimes under which the balance of interests arising under Article 8(2) has in all its essentials been struck by the legislature and under which a court, before ordering a defendant to give up possession of accommodation where he has been living, is not obliged to adjudicate upon the specific merits of coercive action in an individual case.

    91. Mr George QC, for the respondents, submitted that Simon Brown LJ had gone too far in stating that the judge on a section 187B application was not entitled to reach his own independent view on the planning merits of the case. He advanced the submission that, whilst it would be right for the judge to accord great deference to the decision of the local planning authority on matters of planning policy such as whether an area of land should be kept as an open space or should be used for the building of houses, the judge was not bound by its decision on every aspect of planning control. Thus, for example, if the local planning authority decided to enforce the removal of some unsightly structure because it spoilt the view of a number of houses, it would be open for the judge to differ from that decision if it were proved that no house had a view of the structure.

    92. In stating that the judge should not come to a decision on the planning merit of the case I think that Simon Brown LJ was intending to give effect to the principle stated by Lord Hoffmann in Tesco Stores, at p 780G and was not considering the unusual type of case suggested by Mr George. In my opinion the judge is not precluded from deciding some factual issue, such as that instanced by counsel. But I think that such cases would be rare and I consider that a judge should be alert to ensure that he does not embark on the determination of an issue which would, in reality, involve him in the assessment of planning considerations which lie within the ambit of the functions of the local planning authority.

    93. Accordingly for the reasons which I have given, and also for the reasons given by Lord Bingham and Lord Steyn, I would dismiss these appeals.

LORD SCOTT OF FOSCOTE

My Lords,

    94. The issue of importance raised by these three appeals relates to the function of the court and the criteria the court should apply when dealing with an application by a local planning authority, made under section 187B of the Town and County Planning Act 1990, for an injunction to restrain a breach of planning control. I have had the advantage of reading in advance the opinions of my noble and learned friends Lord Bingham of Cornhill, Lord Steyn, Lord Clyde and Lord Hutton and need not repeat what they have said about the facts of the three cases and about the background to and the reasons for the enactment of section 187B.

    95. I respectfully agree that the jurisdiction exercised by the court on an application under section 187B is an original, as opposed to a supervisory, jurisdiction. The section did not, however, confer a new jurisdiction. It had been settled law for many years that the court had jurisdiction to grant a civil law remedy by way of injunction in order to enforce the public law, except in cases where statute had expressly or by necessary implication removed the jurisdiction. In Attorney General v Chaudry [1971] 1 WLR 1614 Lord Denning MR said, at p 1624:

    "Whenever Parliament has enacted a law and given a particular remedy for the breach of it, such remedy being in an inferior court, nevertheless the High Court always has reserve power to enforce the law so enacted by way of an injunction or declaration or other suitable remedy. The High Court has jurisdiction to ensure obedience to the law whenever it is just and convenient so to do."

    96. The principle was confirmed by this House in Gouriet v Union of Post Office Workers [1978] AC 435 but their Lordships emphasised that the jurisdiction was one "of great delicacy and …. to be used with caution" (Lord Wilberforce, at p 481).

    97. Absent some special statutory authorisation, an application for an injunction to enforce the public law has to be brought by the Attorney General. In Attorney General v Bastow [1957] 1 QB 514, 519 Devlin J described the Attorney General as "the only authority who has a right to bring a civil suit upon the infringement of public rights". This principle, too, was confirmed by the House in the Gouriet case. However, section 222 of the Local Government Act 1972 empowered local authorities to institute civil actions in their own name where they considered it "expedient for the promotion or protection of the interests of the inhabitants of their area …." Post 1972, therefore, an application by a local planning authority for an injunction to enforce the planning law could be made in an action brought by the local authority in its own name. Previously the action had to be a relator action brought in the name and with the consent of the Attorney General. But the nature of the application for an injunction was not changed by the advent of locus standi for the local authority to sue in its own name. Nor were the criteria to be applied by the court in deciding whether or not to grant the injunction altered. The criteria remained those expressed in section 37 of the Supreme Court Act 1981 (and its predecessor, section 45 of the Judicature Act 1925), which empowered the High Court to grant an injunction:

    "in all cases in which it appears to the court to be just and convenient to do so."

    98. Section 187B, providing specifically in relation to planning controls an authority to bring proceedings that previously had been provided generally by section 222 of the Local Government Act 1972, authorised a local planning authority to apply for an injunction in support of planning law where the local planning authority "consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction" (subsection (1)). The criteria of "necessary or expedient" relate to the decision of the local authority to apply for the injunction. They take the place of criteria set out in section 222 of the 1972 Act. They are not criteria which apply to the court's decision whether or not to grant the injunction. Section 187B(2) says that on an application under subsection (1) the court "may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach". This language does not, in my opinion, add to or subtract from the criteria expressed in section 37 of the Supreme Court Act 1981. The grant of the injunction must be "just and convenient". If the grant of the injunction cannot satisfy this test it can hardly be thought "appropriate" to grant it.

    99. The criteria that govern the grant by the court of the injunction make clear, in my opinion, that the court must take into account all or any circumstances of the case that bear upon the question whether the grant would be "just and convenient". Of particular importance, of course, will be whether or not the local planning authority can establish not only that there is a current or apprehended breach of planning control but also that the ordinary statutory means of enforcement are not likely to be effective in preventing the breach or bringing it to an end. In a case in which the statutory procedure of enforcement notice, prosecution for non-compliance and exercise by the authority of such statutory self-help remedies as are available had not been tried and where there was no sufficient reason to assume that, if tried, they would not succeed in dealing with the breach, the local planning authority would be unlikely to succeed in persuading the court that the grant of an injunction would be just and convenient.

    100. In deciding whether or not to grant an injunction under section 187B the court does not turn itself into a tribunal to review the merits of the planning decisions that the authority, or the Secretary of State, has taken. The purpose of the injunction would be to restrain the alleged breach of planning controls and the court could not in my opinion properly refuse an injunction simply on the ground that it disagreed with the planning decisions that had been taken. If the court thought that there was a real prospect that an appeal against an enforcement notice or a fresh application by the defendant for the requisite planning permission might succeed, the court could adjourn the injunction application until the planning situation had become clarified. But where the planning situation is clear and apparently final the court would, in my opinion, have no alternative but to consider the injunction application without regard to the merits of the planning decisions.

    101. It does not, however, follow that once the planning situation is clear and apparently final it is not open to the court to take into account the personal circumstances of the defendant and the hardship that may be caused if the planning controls are enforced by an injunction. Planning controls are imposed as a matter of public law. The local planning authority in seeking to enforce those controls is not enforcing any private rights of its own. If a local authority mortgagee is seeking an order for possession against the mortgagor, or a local authority landlord is seeking an order for possession against a tenant, or a local authority landowner is seeking an order to remove squatters or to restrain trespass, the local authority is seeking an order to enforce its private property rights. It is as well entitled to do so as is a private mortgagee, landlord or landowner. The function of the court in civil litigation of that character is, in my opinion, to give effect to the private rights that the local authority claimant is seeking to enforce. But an application for an injunction under section 187B, or any other application for an injunction in aid of the public law is different. As Lord Wilberforce said in the Gouriet case, the jurisdiction to grant such injunctions is one of great delicacy and to be used with caution.

    102. I respectfully agree with the criticism expressed by my noble and learned friend Lord Steyn of the two Court of Appeal authorities particularly relied on by the appellant planning authorities (see paragraphs 55 to 57 of his opinion). 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.

    103. The manner in which the Court of Appeal approached the issue, as evidenced by paras 38 to 42 of the judgment of Simon Brown LJ, cited by my noble and learned friend Lord Bingham of Cornhill, was, in my respectful opinion, correct.

    104. For these reasons, as well as those to be found in the opinions of my noble and learned friends with all of which I am in agreement, I too would dismiss these appeals and make the orders proposed by Lord Bingham.

 
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