Court of Appeal: Sir Andrew Morritt (Chancellor), Toulson LJ, Sullivan LJ, 17th March 2011
The Court of Appeal has allowed Peter Trott's appeal against an injunction made under section 187B of the Town and Country Planning Act 1990. The injunction required Mr Trott to make land within the garden of a residential property available to the residents of flats in the adjoining development for their use as amenity land.
Harriet Townsend acted for the successful Appellant.
Click here for a copy of the approved judgment,  EWCA Civ 301
The decision is of interest to planning practitioners for the following principal reasons
- The injunction which had been granted at first instance supported a requirement of an enforcement notice as imposed by an Inspector on appeal. The Court of Appeal have emphasised the need for an application under section 187B to identify a breach of planning control as defined within the Act and for the injunction to operate in a way which restrains that breach. Injunctions designed to achieve wider objects, in particular those designed to support the requirements of an enforcement notice, may be sought under more general powers within the Local Government Act 1972 but not under section 187B.
- While not necessary to determine the appeal the Court's decision may also be of wider significance in the following ways
a. They declined to follow Upjohn LJ in Miller-Mead v Minister of Housing and Local Government  2QB 163 (at page 226) where the "conventional wisdom" which draws a distinction between the legal effect of those enforcement notices which are invalid and those which are null and void is set out .
b. They held that, even if the court were to apply the dicta in Miller-Mead, it is necessary (where an appeal under section 174 is brought) to take any arguments concerning the nullity of an enforcement notice and the treatment of it by an Inspector by way of appeal to the High Court under and in accordance with section 289 of the 1990 Act.