Judge makes prohibitory order against individual in planning control dispute, but refuses application for “persons unknown” injunction

The High Court has issued mandatory and prohibitory orders in a dispute over land in Beaconsfield but Dexter Dias KC, sitting as a deputy High Court judge, refused to make a prohibitory order against 'persons unknown'.

Buckinghamshire Council sought prohibitory orders under s.187B of the Town and Country Planning Act 1990 to restrain breaches of planning control, and a mandatory order to undo past breaches following what it claims is a series of unauthorised developments on land at London Road, Beaconsfield., both against the first defendant.

The site is near a Gypsy and Traveller site named Wapseys Wood and is within the Green Belt.

The first defendant opposed these applications and his representative argued that the legal basis for the exceptional remedy of an injunction against persons unknown, as set down by the Supreme Court in the Wolverhampton case, was not established.

Buckinghamshire's planning enforcement team leader in March 2023 received an email informing her that a digger was on the land concerned and hardcore was being laid.

She attended and found works in progress to clear the area and build hardstanding and a track.

The council served a Temporary Stop Notice (TSN) because there had been a breach of planning control with operational development without planning permission, and because the council feared further harmful unauthorised development would otherwise follow.

Buckinghamshire decided not to seek an injunction in April 2023 but the following month the site’s owner - unrelated to the first defendant - telephoned the council's planning enforcement team leader to tell her concrete blocks erected as an obstruction to vehicles at the site had been removed and a static caravan and three horses were present.

Buckinghamshire found additional hardstanding had been laid and made an urgent application without notice for an interim injunction, which was granted by Mr Justice Saini.

In Buckinghamshire Council v Barrett & Ors [2024] EWHC 140 (KB) Judge Dias said it was not disputed between the parties that all the operational development on the land, including the bund, hardstanding and makeshift stables constituted breaches of planning control.

He said: “The March items were installed in breach of planning control. There was then a TSN. During the currency of the TSN there was no further breach. However, once the operational period was over, there was further breach by way of the hardstanding for the caravan. This has the imprint of a carefully timed and strategic breach. It was, I judge, flagrant.”

Buckinghamshire argued the first defendant was responsible for breaches of planning control as he knew about the installations on the site and associated developments and wanted them to take place as they benefitted him.

But he pointed to a lack of direct evidence of this and Mr Dias said it was “the task of the court to evaluate [this] and conclude, to the extent that it is possible on the available evidence, where the truth lies”.

The judge said: “My conclusion is that the factors pointing towards [the first defendant] being responsible…for the breaches of control significantly outweigh those against.

“I am quite satisfied that [the first defendant] was responsible for breaches of control. He did not have to be in the United Kingdom to have arranged or been involved in the significant operation in March. It was of great benefit to him and his horses. The clear implication that [the planning enforcement team leader]  took from the June site meeting was the correct one: that the point of the caravan's installation was so [the first defendant] could use it as a replacement site for storing feed and hay (and tackle) given the decrepitude of the previous static he had been using. The sense [the planning enforcement team leader] took from that meeting is in harmony with the communications made by [the first defendant's planning agent] on his client [the first defendant's] behalf. It reflects the truth.”

Turning to whether to grant a mandatory order, Judge Dias said: “I take judicial notice, there being no dispute between parties about this point, that an enforcement notice can take a significant amount of time to bring a breach to an end.

“Consequently, I judge that something more is required: a mandatory order for removal, backed by the attendant sanctions for breach.”

He also imposed a prohibitory order and while noting that this constituted “a significant interference with the liberty of the individual” said the court had found “the degree of the breaches that [the first defendant] has been responsible for and their flagrancy, [meant] the land must be protected from further and future unauthorised development by him.”

Judge Dias added: “I am not satisfied that lesser enforcement measures would be effective in restraining future breaches of planning control by [the first defendant] given his history of involvement in serious and significant breaches, made with significant planning and preparation.”

He declined  to issue mandatory orders against persons unknown as in the Wolverhampton case the Supreme Court had said there must be evidence of compelling need for the enforcement of planning control yet “[the team leader] stated that there is no such evidence”.

Judge Dias said: “The highpoint of the claimant's case is that there is ‘a possibility’ of future breaches by persons unknown as the land is ‘an attractive site’. This is far from a ‘strong probability’ required by Wolverhampton.”

He added: “When the claimant speaks in mere ‘possibilities’ and not higher degrees of likelihood, the court cannot grant an injunction against persons unknown. The risk is too indistinct, uncertain and conjectural."

Mark Smulian