Hardship and imminence of appeal leads court to suspend planning injunction

In London Borough of Newham v Ali & Ors [2014] the trustees of a charity (“the Trust”) operated a faith centre at Abbey Mills Riverine Centre, Canning Road, London E15 (“the Centre”).

The 6.5 hectares of largely vacant land on which the Centre was constructed were of major strategic importance for the delivery of new housing and economic development, in accordance with the policies in the London Plan for growth, regeneration and housing. Policy S1 of the Respondent (“the Council”)’s Core Strategy (adopted in 2012) stated that the Council’s overriding priority was to ensure that growth contributed to achieving economic and social convergence with the rest of London. The site was allocated within the Core Strategy as a “strategic site” in Policy S2. Policy S10 specifically allocated the site for a mix of residential and employment uses so as to contribute to the creation of a new local centre near to West Ham Station.

The Trust intended to use the site as a Muslim foundation and submitted a planning application for change of use of the buildings for worship purposes and for permission for the building extensions already constructed. The Council granted a temporary planning permission for the current faith-based use which expired on 1 November 2006. In February 2010, the Council issued an enforcement notice which required faith-based use to cease and removal of unauthorised buildings, the mosque and the car park.

The Trustees appealed against the enforcement notice. During the resultant public inquiry, the Trust entered into a Unilateral Deed of Undertaking (“the Undertaking”) under section 106 of the Town and Country Planning Act 1990 (“the 1990 Act”). The Trustees covenanted within 12 months to submit a planning application for the “Development” i.e. a mixed use development which may include an element of community (including faith-based) use, proportionate to, and not dominating, the overall mix of uses”. In default, they would forthwith carry out the “Removal Works” specified in the enforcement notice.

The Planning Inspector allowed the appeal against the enforcement notice by granting a temporary planning permission for the current use up to 23 May 2013 to allow the Trust to bring forward, during that time, an application for a policy compliant mixed use form of development.

In the event, no valid planning application was made by 28 February 2012. The later application that was made was for a single faith-based use (inconsistently with both the Development Plan and the Undertaking). The application was refused by the Council on 20 December 2012. The Trust had appealed against that decision.

The Council then commenced proceedings to enforce the Undertaking.

The Trust applied to the Council to vary the condition attached to the Inspector’s temporary planning permission to extend it by two years. The Trust now appealed against the non-determination of that application.

The Council then issued an enforcement notice for overstepping the two year limitation on the Inspector’s temporary planning permission. The Trust appealed against that enforcement notice.

The three appeals were to be determined by the Secretary of State under para 3 of Schedule 6 to the 1990 Act because they involved “proposals giving rise to substantial regional or national controversy”. The appeals will be heard by a Planning Inspector at a three week Inquiry in June 2014. The Inspector was expected to make recommendations to the Secretary of State in October 2014.

The Court of Appeal declined to quash the injunctions granted by the High Court. Basically damages would be an inadequate alternative. But they granted a suspension of the injunctions on the following grounds:

First, the appeal against the refusal of planning permission for a single faith-based use was likely to be decided before the end of this year. If successful, the Council could hardly continue to enforce the Undertaking. The court could not predict the outcome of the appeal.

Secondly, to require the Trust to carry out the Removal Works would cause it and the community considerable hardship. That hardship would have served little practical value if the main appeal succeeded. Whilst the enforcement of planning obligations kept parties to their obligations, that purpose should not be given undue weight where a successful appeal would fundamentally change the planning future of the site and where compliance with the injunction would cause serious harm.

Thirdly, there was no particular planning detriment in allowing the current position to continue for a relatively short period until the planning future of the site was finally determined. The Council could not realistically do anything in relation to the site until the outcome of the appeals was known.

Fourthly, a refusal to suspend the injunction would in effect pre-empt the outcome of the appeal against the Council’s refusal to vary the temporary planning permission in such a way as to extend that permission until 23 May 2015.

The power to suspend an injunction under section 106(5) of the 1990 Act should be exercised sparingly. But the facts of this case were unusual. They justified a relatively short suspension in the context of the long and involved planning history of this site.

So the injunction should be suspended until the results of the appeals were known and a short period had been allowed for the parties to consider their positions.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.