The Court of Appeal has upheld the right of local authorities to obtain injunctions using their broad, general power to issue legal proceedings under section 222 of the Local Government Act 1972. Alexander Campbell looks at the lessons to be learned.
In its judgment in the case of Sharif v Birmingham City Council  EWCA Civ 1488, the Court of Appeal rejected the idea that there is a legal principle that a local authority must search for the specific legal remedy which would be the “closest fit” with the behaviour which they are seeking to prevent.
The impact of the case for local authorities
This decision will be welcomed by local authorities as upholding their ability to make use of section 222 of the Local Government Act 1972 to obtain injunctions. Section 222 is a very broadly worded provision giving local authorities power to bring legal proceedings in their own name where they consider it expedient to do so to promote or protect local inhabitants. Thus it provides a useful tool for local authorities to use in a variety of different circumstances.
The Court of Appeal explicitly rejected the idea that, when bringing legal proceedings, local authorities must search for, and restrict themselves to using, the legal remedy which most closely applies to the situation in issue. The Court of Appeal summed this up by stating that there exists no “closest fit principle”.
If the Court of Appeal had decided in favour of there being a “closest fit principle”, a defendant in legal proceedings instigated by a local authority could have sought to escape legal liability simply by identifying some alternative legal remedy which would have been better adapted to the particular set of facts in issue.
However it is important to note that part of the Court of Appeal’s reasoning in this case was that the alternative remedy in question – a PSPO (public spaces protection order) – was a mere administrative measure which a local authority can impose itself without having to go to court and without any judicial oversight.
Therefore, in future cases where a local authority has a more suitable alternative remedy which would require an application to court, the local authority should still be ready to justify its decision to use its general power under section 222 of the Local Government Act 1972 rather than the more precise alternative remedy which it could have used.
Background to the case
In September 2016, Birmingham City Council issued proceedings seeking an injunction under section 222 of the 1972 Act. The council were seeking an injunction to prohibit “street cruising”, a term used by the council to refer to various anti-social behaviour being committed by drivers of multiple cars congregating in one place, including driving at excessive speed, racing and performing stunts with their cars.
The High Court granted the injunction sought for a three-year period.
Mr Sharif was served with a notice of application to commit him for contempt of court after he was accused of breaching the terms of the injunction. He applied to court to discharge the injunction, arguing that the court should not have granted the injunction under section 222 of the 1972 Local Government Act given that the council could have applied instead for a PSPO under Part 4 of the Anti-Social Behaviour, Crime and Policing Act 2014 to address the behaviour which was worrying the council.
The High Court refused Mr Sharif’s application to discharge the injunction, finding that the council had been entitled to seek an injunction under section 222 of the 1972 Act rather than a PSPO. Mr Sharif appealed that decision to the Court of Appeal.
The Court of Appeal’s decision
Before the Court of Appeal, Mr Sharif relied on a previous Court of Appeal decision, Birmingham City Council v Shafi  1 WLR 1961. In the Shafi decision, the Court of Appeal had held that where a local authority was seeking an injunction in terms which were identical or near identical to terms which could have been sought in an anti-social behaviour order (ASBO), a court should not grant the injunction save in exceptional circumstances, given that an ASBO was to be taken to be parliament’s preferred remedy to address the behaviour concerned.
The Court of Appeal rejected Mr Sharif’s argument and his reliance on the Shafi decision. The Court of Appeal held that the Shafi decision had been decided in the way which it had because:
- in the Shafi case, the local authority had been seeking an injunction under section 222 of the 1972 Act in terms which were identical or near identical to the terms which could be obtained in an ASBO;
- an ASBO would have been an effective remedy to address the nuisance behaviour in that case;
- it was unfair to circumvent the criminal standard of proof which would apply in the case of an application for an ASBO.
In contrast in Mr Sharif’s case, the Court of Appeal decided that there was sufficient evidence from the council that a PSPO might well be an ineffective remedy: since a breach of a PSPO is a non-arrestable offence carrying only a financial penalty, the Court of Appeal considered that it might well be insufficient to deter street cruising.
Additionally, the Court of Appeal noted that whereas an application for an ASBO had carried with it the procedural safeguards which come with an application to a criminal court, the putting in place of a PSPO is an administrative act carried out by a local authority itself without any judicial oversight.
Accordingly, the Court of Appeal held that the council had been entitled to an injunction under section 222 of the Local Government Act 1972 in circumstances where street cruising would continue unless effectively restrained by an injunction.