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Hackney LB v Grant and others, National Highways v Persons Unknown
Roderick Morton • 28 September 2021
Injunctions
This month we report on two injunction cases which neatly illustrate the differences between interim and final injunctions. Neither is a planning case specifically but the practical difficulties with injunctions which are apparent in these cases are the same as those arising with injunctions sought under s187B Town and Country Planning Act 1990.
TCPA 1990 injunctions
As a reminder, an injunction can be issued under s187B to restrain an actual or apprehended breach of planning control. A court hearing will be required and the judge will need to reach a conclusion on the merits of an injunction; these can include being satisfied that there is a breach, that it is unlikely to get planning permission, that the proposed defendants are responsible and that it is appropriate for the court to restrain the defendants, potentially affecting their rights. We tend to call such an injunction a “final injunction” because it has no end date.
It can take quite some time for the proceedings to be issued and served and for the claim to get to a court hearing. In the meantime, the council can seek an interim injunction, usually preserving the status quo and preventing further unlawful development. The interim injunction can be sought on an emergency basis without notice to potential defendants. The merits of the claim are not considered at interim injunction stage. Instead, the court’s main task is to consider the “balance of convenience” between preventing further development and infringing on people’s rights. The interim injunction can be granted where the balance of convenience favours preventing further development until the merits of the claim can be fully considered at the final injunction hearing. An interim injunction can be against “persons unknown” when the likely defendants cannot be identified.
The High Court gave a very comprehensive review of TCPA injunctions when it considered borough-wide G&T injunctions earlier this year (Barking & Dagenham LBC and others vs Persons unknown and others [2021] EWHC 1201). The court came out fairly strongly against both injunctions covering a wide area and injunctions against persons unknown. The ramifications were not limited to G&T injunctions.
It is one thing to obtain an injunction; it is quite another to enforce it. To enforce an injunction, an authority must apply to court for committal of a defendant to prison. The authority will need to demonstrate that the individual was personally served with a copy of the injunction; knowingly breached it and that the “custody threshold” is met (ie that the breach is sufficiently serious). It is, sadly, rare for a court to commit a defendant to prison in planning cases.
Hackney case (https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/QB/2021/2548.html&query=(QB-2021-003088))
In the first case, Hackney sought an injunction against a number of Covid-19 protesters who had set up a camp on Hackney Downs in August 2021 protesting about the government’s approach dealing with the virus. They were evicted from Hackney Downs by use of a possession order but indicated an intention to move to another green space in Hackney. Hackney obtained an interim injunction preventing this. The interim injunction applied borough-wide across all of Hackney, applied to persons unknown as well as various named defendants, and the court ordered that service could be made by posting on site.
Hackney then sought to make the injunction final. This was rejected. When the merits of the case were considered, the judge was not convinced that Hackney had sufficient evidence that the defendants had an intention to camp elsewhere in Hackney. He found that, while public order breaches had taken place, there was little evidence that individual defendants had committed those breaches. He also pointed out that there was little evidence that the claim form had come to the attention of most of the defendants. The list of “persons unknown” had to be limited by reference to photos of specific protestors rather than applying to all members of the public. Hackney asked for alternative electronic service on the defendants for whom they had no address; the judge rejected this saying it would have amounted to “an order permitting service by unspecified electronic means on unspecified defendants, made without any evidence to support it.” And had he been minded to grant the order, the judge indicated that he would not have been willing to grant one on a borough-wide basis.
In all, then, while it was fairly straightforward to obtain an interim injunction on the “balance of convenience” test, the final injunction had much stricter requirements surrounding compliance with court rules, evidence and the exercise of the court’s discretion. The judge noted that Hackney had not fully taken account of the guidance in the Barking and Dagenham case.
Insulate Britain (https://highwaysengland.co.uk/media/wcufrac5/sealed-copy-nhl-v-persons-unknown-approved-order.pdf)
The second case is the orders obtained by Highways England against the Insulate Britain protestors who have recently caused havoc on the M25 and other roads across southern England. No transcript seems to be available but the order has been published, from which we can see the following.
It is an interim order obtained without notice. It is therefore time limited and the authority has been directed to serve it and come back to court for an extension. The defendants are only “persons unknown”; there are no named defendants. While the authority has been directed to send it to Insulate Britain, the order expressly notes that this will not constitute service. The scope of the injunction is limited to particular roads, rather than applying nationwide. The right to protest is explicitly protected.
This, then, is a classic interim injunction. It may meet the balance of convenience test but it is rather less clear that it will survive at final injunction stage without a lot more work by the authority in identifying and serving individual defendants, proving service, proving breach by individuals and demonstrating the merits of an injunction which will inevitably involve restriction of the right to protest. The judge who granted Highways England the interim injunction is the same one who refused Hackney its final one. Contrary to what you might read in the Daily Mail, no-one is going to prison on this injunction.
Conclusion
The effect of the court’s restrictive approach to injunctions following Barking and Dagenham is masked by the looser “balance of convenience” test at interim injunction stage. Hackney is an example of what happens at final injunction stage when the merits of the claim are fully tested. Those seeking planning injunctions would do well to make sure they’ve read the Barking and Dagenham judgment in full, all 130 pages of it!
Amber Valley BC v Haytop Country Park Ltd [2024] UKUT 237 (LC)
Jones vs Isle of Anglesey County Council and Another [2024][ EWHC 2582] (Admin)
originally written for Scottish Planner
Warwick DC v SSLUGC and others [2022] EWHC 2145 (Admin)
LB Richmond upon Thames v the King oao Owolabi Ariyo [2024] EXCA Civ 960
LB Lambeth v SSLUHC [2024] EWHC 1391
LB Barking and Dagenham v Zannat Ara Aziz [2024] EWHC 1212 (Admin)
Caldwell and Timberstore v SSLUHC [2024] EWCA Civ 467
Ward v SSLUHC and Basildon District Council [2024] EWHC 676 (Admin)
R oao Lisle-Mainwaring v RB Kensington and Chelsea and another
Southwood v Buckinghamshire Council [2024] EWHC 71 (Admin)
s172ZA TCPA 1990
Ariyo v Richmond Upon Thames LBC [2023] EWHC 2278
Kazalbash v SSLUHC and Hillingdon [2023] EWCA Civ 904
Removal of facilitating development
Pathfield Estates Ltd v LB Haringey [2023] EWHC 1790 (Admin)
Given its portrayal of the planning system so far, it is almost a given that season 3 of Clarkson’s Farm will not accurately present the detail of the Diddly Squat appeal decision. Here is our take. The decision is here. In summary, the LPA won almost all of the enforcement points. But simply being Jeremy Clarkson is apparently a material consideration which alters the planning balance! While he is popular, his celebrity is such that his farm shop will create significant problems beyond those of an ordinary farm shop and the inspector decided that these are problems which have already been accepted in granting his existing permission. Fewer of the harms to the AONB can therefore be attributed to the additional elements of the use. And these harms are outweighed by the economic benefits, benefits which are a result of his celebrity. So permission was granted for his farm shop and café and the associated parking and toilets. Clarkson’s popularity will be re-assessed in 3 years as the permission is time limited. Perhaps the inspector knows something we don’t. As viewers will know, Clarkson’s Farm operates in open countryside in an AONB. As well as agriculture, it has diversified to include a farm shop and a café in a lambing barn. The business tried to open a restaurant in a converted barn located some distance from the shop. The site is obviously used as a filming location. The business has proved popular and it now has significant parking and highway problems. The farm shop (with limited parking) has permission, the construction of the lambing barn (but not its use) has permission and there is permission for limited filming. The council enforced against the material change of use of the land to a mixed agricultural and leisure attraction use, comprising café, restaurant, gift/farm shop, parking and lavatory facilities. The notice was appealed. The appellant also sought (and was refused) permission for additional parking, access, storage and landscaping. This appeal was heard alongside the enforcement appeal. The inspector dealt first with the planning unit. The appellant alleged that there were three separate planning units (shop, café, restaurant), with each having a separate primary use. The council had enforced against a single unit in a mixed use. The inspector took into account that the shop/café was in a different ownership to the farm and that it had its own permission. But its activities clearly spilled out of the permitted area, extending to the proposed restaurant and the wider parking areas. The restaurant used the same parking as the shop. These were fenced/walled off from the remainder of the farm. He concluded that there was a single planning unit. As for the use of that planning unit, the inspector took issue with several items listed by the council. “Gift shop” was too ambiguous; a shop is a shop. Similarly, while visitors no doubt came for the experience, the business was not a “leisure attraction”. A leisure attraction required, said the inspector, something which the customer might be expected to pay for. There was no entrance fee here, just a shop and café. (It appears that the inspector was also concerned that any permission for a “leisure attraction” would create a very wide lawful use.) Nevertheless, there were several primary uses in a single unit so the development was a mixed use, in this case a “mixed use comprising agriculture, café, restaurant, farm shop, parking, lavatory facilities.” This put paid to the ground (b) and (c) challenges. The challenge was that the restaurant was a separate planning unit. As it was in the curtilage of the lawful farm shop, the appellant said that Class R permitted a change of use to a flexible use including a restaurant. In the light of his conclusion on the planning unit, the inspector rejected this. He said he would have rejected the Class R argument anyway as the restaurant was not clearly within the curtilage of the farm shop. The remainder of the uses cited in the notice were also challenged on the grounds that they were ancillary to the lawful farm shop use and not primary uses. The inspector concluded that, as the restaurant resulted in a mixed use, there had been a material change of use so it was irrelevant whether the other items were ancillary. As an aside, viewers of the series will recall the scripted glee with which the appellant came up with the “PD loophole” for his restaurant. It is fitting, therefore, that it was the restaurant which was the primary reason the breach was upheld. The inspector nevertheless looked at the extent to which the various alleged ancillary elements (other than the restaurant) were part of the lawful use prior to the breach. This was relevant to the fallback but also to what the extent of the material change of use truly was. He identified that the question was whether any of the elements represented a change in the character of the use. The inspector found that the level or vehicle traffic and parking went far beyond that for which permission had been given. And that the lambing shed was clearly not “by any stretch of reasonableness” being used for the purpose for which it was given permission. Even the toilet facilities went beyond what would be expected for the permitted farm shop. This was not intensification, it was a material change in the character of the use. The LPA even won the merits arguments on ground (a). The number of visitors, the traffic and parking problems, the outdoor seating, catering van and toilets clearly had an adverse effect on the AONB. The parking and landscaping proposed under the s78 application would have a similar effect. This had great weight. In the end though, permission was granted for the mixed use, including the use of the lambing shed as a café and the enforced against parking and toilets. Permission was granted under the s78 appeal for altered parking, storage and landscaping. Only the restaurant was refused. The inspector found that the parking would alleviate the current parking situation and highway safety even though it would not provide a complete solution. He accepted that a number of local suppliers benefited from trading arrangements with the shop and that the shop contributed to the local economy. He accepted that diversification was to be supported. These considerations also had great weight. Key to the decision, though, was the fact that permission had been granted, not just for a farm shop, but for a celebrity’s farm shop. Even if there was no café or restaurant, the popularity of the appellant was such that people would continue to visit the shop in numbers. This reduced to moderate the harm to the AONB caused by the new elements of the use because the permitted use already resulted in significant harm. The appellant’s celebrity might wane. In which case, the weight of the considerations in favour of the development would wane. The permission granted was therefore time limited to 36 months. The decision is well reasoned and fairly logical. The inspector did not say that the character of the use already permitted varied with the identity of the user. But the result seems to imply that the harms associated with the use could vary and that the LPA had accepted them all in granting permission. Yet it is difficult to think that the LPA could successfully have imposed conditions on the farm shop based on the identity of the applicant. The result is therefore troubling.
R oao Devonhurst Investments Ltd v Luton Borough Council [2023] EWHC 978 (Admin)
Muorah v SSHCLG and Brent [2023] EWHC 285 (Admin)
Atwill v New Forest NPA [2023] EWHC 625 (Admin)
McCaffrey v Dartmoor NPA [2023] 2 WLUK 341
Welwyn Hatfield BC v SSLUHC and Kabala [2022] EWHC 3175 (Admin)
Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30
LB Hackney vs JC Decaux (UK) Ltd [2022] EWHC 2621 (Admin)
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