Injunctions

September 19th, 2019

In Redcar & Cleveland BC v PR (2019) EWHC 2305 (Fam) Cobb J considered the circumstances in which interim injunctions are granted to local authorities under the Court’s inherent common law jurisdiction to protect vulnerable adults. That jurisdiction is not confined to cases where a vulnerable adult is disabled by mental incapacity from making his or her own decision about the matter in hand, and cases where an adult, although not mentally incapacitated, is unable to communicate his decision.  The jurisdiction extends to a wider class of vulnerable adults, where there is evidence of vulnerability and a need to protect the vulnerable person, and statutory processes would not offer the level of protection needed.  Nor is the jurisdiction excluded if the order amounts to a deprivation of liberty, at any rate if any such deprivation does not exceed six weeks.   Cobb J said  (paragraph 46):-

“… it may usefully be suggested that before a local authority makes an application under the court’s inherent jurisdiction which is designed to regulate the conduct of the subject by way of injunction, particularly where mental illness or vulnerability is an issue, it should be able to demonstrate (and support with evidence) that it has appropriately considered:

i) whether X is likely to understand the purpose of the injunction;

ii) will receive knowledge of the injunction; and

iii) will appreciate the effect of breach of that injunction.

If the answer to any of these questions is in the negative, the injunction is likely to be ineffectual, and should not be applied for or granted as no consequences can truly flow from the breach.”

In East Hertfordshire DC v Doherty (2019) EWHC 2292 (QB) the Court declined to discharge or vary an injunction granted to the local planning authority pursuant to Section 187B of the Town and Country Planning Act 1990 in support of planning enforcement that was subject to planning appeal.  The Court distilled the following principles:-

“57. First of all, the same approach as would be applied when obtaining a section 187B injunction in the first place where the identities and personal circumstances of the individuals occupying the land unlawfully are known, or on reasonable enquiry could have been found out, should be taken on an application to vary that injunction, namely a balancing exercise between the public interest in upholding planning control and environmental protection and the private interests of the individuals, particular where the welfare and health of families and children are involved. This involves issues of necessity and proportionality.

58. Second, whilst the court will not become involved in nuances of the planning considerations, or undertake an analysis of the prospects of a successful challenge, it will be necessary to consider that there is a sound basis for the establishment of breaches of planning control. The refusal of planning permission for the development which it is sought to be restrained by the injunction will potentially provide such a basis.

59. Third, whilst the weight to be attached to individual factors will be variable in every case, material considerations will include the following:

(a) The circumstances in which the land was first occupied;

(b) the manner in which the injunction was initially obtained, including information available about the occupants, and the extent to which such information could have been sought by the planning authority in addressing Article 8(2) questions;

(c) how the occupants have conducted themselves after becoming aware of either the planning control restriction or the injunction, that is the extent of any breaches;

(d) the evidence presently available as to the circumstances of the occupants, including health, welfare and family issues, and the impact of continuing the injunction in the context of those issues insofar as Article 8 and the best interests of the children might be engaged;

(e) a general assessment as to the prospects of any appeal;

(f) the need to ensure that court orders are respected and obeyed;

(g) whether the application to vary was made timeously;

(h) the amount of time that has elapsed between the original order and the hearing of the application to vary, and in particular, where it is sought to preserve the status quo, how long it will take for the resolution of the planning appeal process in the context of potential planning harm.

60. Clearly, this is not an exhaustive list.”

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