"Unnecessary, disproportionate and oppressive": Victory for developer as High Court rules on local authority request for injunction

03 February 2016

A recent attempt by Stratford-on-Avon District Council to use the injunction procedure to force Persimmon Homes to comply with planning conditions during construction of an 85 home development has backfired, with the court finding firmly in favour of the developer.

The conditions

The planning conditions themselves were neither unusual nor controversial:

  • Full details of landscape works to be approved before development could begin; and
  • No development to take place until approval was given to a number of provisions including, crucially, landscaping and construction traffic management.

The local authority approved the detailed plans and development commenced. However, local residents, already hostile to the development, soon complained about a number of alleged breaches of the conditions: inappropriate delivery hours; insufficient 'banking' (guiding vehicles during reversing manoeuvres); lack of constant presence of a 'gate person'; and failure to implement soft landscape works.

A disproportionate response: use of "the most serious enforcement action" criticised

The local authority was quick to take action, claiming that Persimmon had committed "flagrant and persistent breaches of planning control" and applied for an injunction to force the developer to comply strictly with what it said had been agreed in the detail of the conditions.

Although it was accepted that the court could not consider the rightness or otherwise of the planning conditions, it was entirely appropriate that it could take into account considerations surrounding the decision to use the injunction procedure to enforce them: a procedure with which failure to comply would see the defendant facing a prison sentence.

In other words, if the court's view was that the conditions were being interpreted in such a way as to achieve an unreasonable objective it was within its powers to reject the application. This it did, leaving the local authority in no doubt as to its opinion of the process it had used to try to interfere with the development. Its comment that the "application for injunctive relief is both disproportionate and oppressive" being illustrative of the general sentiment surrounding the court's response to the various claims.

Good news for developers

It was clear from the evidence that Persimmon had gone to significant lengths to allay such genuine concerns of the local authority as there were and the court held no truck with the disproportionate nature of the application. This decision is excellent news for developers struggling with unreasonable demands from local authorities in relation to interpretation of planning conditions.

Comment

Paul Kent, acting for Persimmon, commented: "We are delighted to have secured this success and the case is a clear message that local authorities should not use the Town and Country Planning Act to appease local feeling. Planning conditions and their enforcement must be reasonable and proportionate to the development they are seeking to control."


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