CHAPTER TWO – PLANNING CONTROL AND ENFORCEMENT
In considering the power to seek a planning injunction, it is important to first understand the scope of planning control and how a breach of planning control might arise. An important first step for the LPA is to identify whether there is an actual or apprehended breach of planning control. It will also need to consider, of course, whether any other enforcement action might be more suitable in determining whether it is “necessary and expedient” to seek an injunction.
The House of Lords, in what is the leading case for this area of planning law, South Buckinghamshire DC v Porter [2003] 2 A.C. 558 (“South Bucks”), said that “What uses should or should not be allowed of lands within the area of the authority, what developments should or should not be permitted to take place upon such lands, are questions for the planning authorities and not for courts of law to resolve” (paragraph 67). The House of Lords endorsed the judgment of Simon Brown LJ in the Court of Appeal where he said that “It seems to me perfectly clear that the judge on a section 187B application is not required, nor even entitled, to reach his own independent view of the planning merits of the case. These he is required to take as decided within the planning process, the actual or anticipated breach of planning control being given when he comes to exercise his discretion” (paragraph 53).
It might be thought, therefore, that it is not for the Court to determine, as a first step, whether or not there is an actual or apprehend breach of planning control. That has not, however, been the way in which the Courts have approached most applications before it for a planning injunction. That seems obvious. An injunction is a serious remedy, and the High Court will need to be persuaded that there is an actual or apprehended breach of planning control which entitles the LPA to rely on the statutory power. That approach was endorsed in the obiter comments of the High Court in Durham County Council v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 1394 (Admin) where the Court said that “Neither Simon Brown LJ nor Lord Bingham was saying that the court could not or should not decide the threshold question whether the development was an actual or apprehended breach of planning control, if there was a dispute about that. If, for example, it was the respondent’s case that what he was proposing to do did not require planning permission, the court could not avoid reaching its own view about that” (paragraph 34). The LPA will need, therefore, to set out in its evidence how it says that the answer to that threshold question is yes. How much consideration that question requires at the hearing will depend on what the Defendant’s position is. The Defendant may simply accept that there has been a breach but equally, in some cases, it may argue that the development is not a breach of planning control, e.g. because a change of use is not material in planning terms or because the development is authorised by an extant planning permission, etc.
Section 57(1) of the 1990 Act provides that “planning permission is required for the carrying out of any development of land”. Section 55(1) of the 1990 Act defines “development” as the “carrying out of building, engineering, mining or other operations in, on, over or under land” (operational development) or “the making of any material change in the use of any buildings or other land” (material change of use). Land, for the purposes of the 1990 Act, is “any corporeal hereditament, including a building” (section 336) – that definition differs from the general definition of land in the Interpretation Act 1978. As to the last point, it was held in R (Parkes) v Dorset Council [2024] EWHC 1253 (Admin) that, for the purposes of the 1990 Act, and planning control, land refers “to the solid part of the earth’s surface as opposed to the sea” (paragraph 179). This meant that in that case the High Court concluded that the seabed above which the Bibby Stockholm was moored was not land subject to planning control (see paragraph 195).
Operational development will include any groundworks, building alterations, construction works, demolition, the laying of hardstanding and other operations such as mining or engineering operations.
As to whether or not there has been a material change of use (which must be determined by reference to the planning unit (see Burdle v Secretary of State for the Environment [1972] 1 WLR 1027 for assistance in identifying the correct planning unit)), this will be a question of fact and degree. In determining that question, it will be important to consider if there has been a change in the character of the use (see Manchester City Council v Secretary of State for Housing, Communities and Local Government [2021] EWCA Civ 1920, [16]). The answer will always depend upon the particular characteristics of the use in question (Moore v Secretary of State for Communities and Local Government [2012] EWCA Civ 1202, [27]). Off-site impacts can be relevant to that consideration.
A change of use must be material in planning terms for it to constitute a material change of use. The most obvious example might be the change of use of agricultural land to residential use by placing caravans and mobile homes on the land which are then used for residential occupation. A material change of use can also come about through an intensification in a particular use of land. There can, however, be a change in the use of the land, which is not a material change of use and, therefore, will not be a breach of planning control. The policies of the development plan may be relevant, therefore, to deciding whether there has been a material change of use (see, e.g. R (Wright) v Resilient Energy Severndale Limited [2019] UKSC 53 and Great Yarmouth Borough Council v Al-Abdin [2022] EWHC 3476 (KB)). In the latter case, in which an injunction was sought to prevent the use of a hotel as a hostel for asylum seekers, it was said by the High Court that although “At the end of the day whether a material change of use would occur is a question of fact and degree, but in my judgment the particular policy considerations raised in this case by Policy GY6 strengthen the Council’s case on breach of planning control significantly” (paragraph 56). The local development plan there had a policy which sought to, inter alia, “resist the loss of key tourism uses to non-tourism uses” (see paragraph 27).
Section 171A of the 1990 Act provides that “carrying out development without the required planning permission” is a breach of planning control. There are, of course, various ways in which planning permission can be granted: following an application to the LPA; on appeal by the Secretary of State; or pursuant to a development order such as the Town and Country Planning (General Permitted Development) (England) Order 2015 (“Permitted Development”). The LPA will also need to consider the provisions set out in section 171B of the 1990 Act and ask itself whether the breach is immune from enforcement action. It is unlikely, however, that section 171B will be relevant to many applications for a section 187B injunction as, in most cases, injunctions are sought quickly after the breach has occurred. That may not, however, always be the case. A Defendant may, however, rely on the expiration of a significant degree of time before the application is made (in the absence of recourse to any other enforcement powers) to argue that the LPA’s conclusion that an injunction is necessary and expedient is wrong. LPAs should be aware that delay can be relied on by Defendants in seeking to resist the imposition of an injunction. A material change in circumstances might, however, assist the LPA in rebutting that argument.
Section 171A of the 1990 Act also makes clear that it will be a breach of planning control if a developer fails to comply with a condition or limitation attached to any grant of planning permission. An example of the latter breach which might lead to an application for an injunction might be if, for example, a developer had failed to carry out certain works required by a condition to be completed before occupation was allowed but had nevertheless allowed units to be sold and occupied without completing those works. The LPA should be aware, however, that injunctions to enforce breaches of an extant section 106 agreement should be sought pursuant to section 106(5) of the 1990 Act rather than section 187B. Such injunctions raise different considerations outside the scope of this book. It should consider, therefore, whether or not the breach is a breach of planning control or a breach of a section 106 agreement.
The LPA will need to clearly set out in its evidence what is says the breach of planning control is. This will obviously be a more straightforward exercise if an Enforcement Notice has already been issued but LPAs should note that the breach of an Enforcement Notice is not itself a breach of planning control. Further, the LPA should be careful, where an Enforcement Notice has been issued in the past, to consider whether the breach is the same as that which was targeted by the notice or whether the characteristics of the breach have changed in the intervening period in any way.
The LPA will also need to carefully consider, therefore, the planning history and ask itself whether any planning permissions previously granted, whether by the LPA itself or by one of the other routes, in respect of the land authorises the development or whether the development is otherwise Permitted Development. Where the alleged breach of planning control is a material change of use, the evidence will need to clearly set out why the change of use is considered to be material in planning terms. It will also need to identify whether the breach is an “actual”, i.e. has already occurred, or an “apprehended” breach, i.e. an anticipatory breach. Of course, in some situations, there may be an actual and an apprehended breach if a certain amount of development has already occurred and further development is anticipated. In other cases, the breach may only be an apprehended breach if, for example, the threatened operational development has not yet been carried out or the material change of use has not yet occurred. The LPA will most often rely, therefore, on a witness statement from a Planning Officer as well as an experienced Enforcement Officer to support its application for an injunction.
Of course, the LPA having identified a breach of planning control, has a number of enforcement options open to it as set out in Part Seven of the 1990 Act. It might, for example, serve a Temporary Stop Notice (section 171E), an Enforcement Notice (section 172), a Stop Notice (section 183) or a Breach of Condition Notice (section 187A). The distinct advantage, however, of a section 187B injunction is that it can be used to target an apprehended breach of planning control whereas the other enforcement powers open to the LPA presuppose an extant breach of planning control. The LPA does not need, therefore, to wait until the breach comes into existence to try and restrain it by way of an injunction. This reflects the historic evolution of the injunction and, in particular, the historic ability to seek an injunction, commonly called a quia timet injunction, where a wrongful act is anticipated. By way of an example, complaints from local residents may indicate that an unauthorised development is about to commence which the LPA considers ought to be restrained by way of an injunction, e.g. a quantity of hardcore has been delivered to a green belt site which indicates that residential occupation is imminent. The LPA does not need to wait until the harmful development has begun to seek an injunction in the way that it would need to wait before, for example, serving an Enforcement Notice, as the power is pre-emptive as it can restrain apprehended breaches as well as extant breaches. It is, therefore, an extremely important tool in the enforcement arsenal.