Stratford On Avon District Council v Persimmon Homes Ltd

The Claimant, Stratford-on-Avon District Council, seeks an injunction pursuant to section 187B of the Town and Country Planning Act 1990 “the Act” against the Defendant, Persimmon Homes Limited, in respect of a development at 42 Avon Crescent, north of Milestone Road, Stratford on Avon (“the Site”) which was once agricultural land on the edge of Stratford on Avon

The Claimant is the relevant local planning authority with responsibility for the enforcement of planning control in respect of the Site whilst the Defendant is the owner of the Site (subject to the sale off of individual plots) and is responsible for its development.

The application is supported by witness statements made on 13 October and 11 November 2015 by Claire Louise Eynon, a planning manager, and dated 14 October 2015, by Ronald John Goodyer, a planning enforcement officer, both of whom are employed by the Claimant, and suggests that the injunction is necessary and proportionate having regard to what it characterises as the Defendant’s flagrant and persistent breaches of planning control and having regard to what it submits is the underlying issue of safety and the need for a mechanism whereby enforcement can be pursued against the Defendant and not individual plot purchasers. Moreover, it is said that the terms of the relief sought are the least imposing terms commensurate with ensuring compliance with planning control. The application was preceded by the issue of a number of Breach of Condition Notices

The application is opposed by the Defendant with reliance being placed on witness statements from Joe Turner, Head of Technical at Persimmon Homes (South Midlands,) a division of the Defendant company, dated 6 and 17 November 2015 respectively, and Christopher Smith, a site manager with responsibility for the Site for Persimmon Homes (South Midlands), dated 6 November 2015.

The Defendant points out that the alleged breaches of planning control sought to be restrained are not the use of the Site for which no planning consent has been obtained and as such this is an unusual application of section 187B of the Act; that there is no suggestion that more conventional enforcement measures have been tried without success, nor that recourse to such enforcement measures is inappropriate given the need to avert an imminent risk of serious harm. Moreover, the court is entitled in an appropriate case to take into account points which might otherwise have been taken by the Defendant had it pursued judicial review in respect of the Breach of Condition Notices. The evidence does not justify the granting of injunctive relief and that the Defendant is, to quote counsel for the Defendant’s skeleton argument “the luckless victim of a misguided attempt on the part of the Claimant’s officers to appease the implacable hostility of a well connected and vociferous lobby of councillors and local residents”.

Section 187B of the Act states as follows: –

“(1)

Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the Court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Part.

(2)

On an application under subsection (1) the Court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach.

(3)

Rules of Court may provide for such an injunction to be issued against a person whose identity is unknown.

(4)

In this section “the Court” means the High Court or the County Court.

The definition of “a breach of planning control” is to be found in section 171A of the Act which is in these terms: –

“(1)

For the purposes of this Act –

(a)

carrying out development without the required planning permission; or

(b)

failing to comply with any condition or limitation subject to which planning permission has been granted, constitutes a breach of planning control.”

It is right to record that although the Defendant has criticized the Claimant for failing to have recourse to other enforcement measures first, for example in the Magistrates Court for failure to comply with a Breach of Condition Notice, s187B of the Act makes it clear that such action is not a prerequisite for the granting of injunctive relief.

In Runnymede BC v Harwood [1994] 1 PLR 22, the court held that section 187B should be given a broad interpretation.

In South Bucks DC v Porter [2001] EWCA Civ 1549, Simon Brown LJ held as follows: –

“37.

I propose now to state first my conclusions on the general point arising — the proper approach to the exercise of the court's power under s.187B — and secondly, how in my judgment that conclusion falls to be applied in each of the four appeals before us.

The approach to s.187B

38.

I would unhesitatingly reject the more extreme submissions made on either side. It seems to me perfectly clear that the judge on a s.187B application is not required, nor even entitled, to reach his own independent view of the planning merits of the case. These he is required to take as decided within the planning process, the actual or anticipated breach of planning control being a given when he comes to exercise his discretion. But it seems to me no less plain that the judge should not grant injunctive relief unless he would be prepared if necessary to contemplate committing the defendant to prison for breach of the order, and that he would not be of this mind unless he had considered for himself all questions of hardship for the defendant and his family if required to move, necessarily including, therefore, the availability of suitable alternative sites. I cannot accept that the consideration of those matters is, as Burton J suggested was the case in the pre-1998 Act era, “entirely foreclosed” at the injunction stage. Questions of the family's health and education will inevitably be of relevance. But so too, of course, will countervailing considerations such as the need to enforce planning control in the general interest and, importantly therefore, the planning history of the site. The degree and flagrancy of the postulated breach of planning control may well prove critical. If conventional enforcement measures have failed over a prolonged period of time to remedy the breach, then the court would obviously be the readier to use its own, more coercive powers. Conversely, however, the court might well be reluctant to use its powers in a case where enforcement action had never been taken. On the other hand, there might be some urgency in the situation sufficient to justify the pre-emptive avoidance of an anticipated breach of planning control. Considerations of health and safety might arise. Preventing a gipsy moving onto the site might, indeed, involve him in less hardship than moving him out after a long period of occupation. Previous planning decisions will always be relevant; how relevant, however, will inevitably depend on a variety of matters, including not least how recent they are, the extent to which considerations of hardship and availability of alternative sites were taken into account, the strength of the conclusions reached on land use and environmental issues, and whether the defendant had and properly took the opportunity to make his case for at least a temporary personal planning permission.

39.

Relevant too will be the local authority's decision under s.187B(1) to seek injunctive relief. They, after all, are the democratically elected and accountable body principally responsible for planning control in their area. Again, however, the relevance and weight of their decision will depend above all on the extent to which they can be shown to have had regard to all the material considerations and to have properly posed and approached the article 8(2) questions as to necessity and proportionality.

40.

Whilst it is not for the court to question the correctness of the existing planning status of the land, the court in deciding whether or not to grant an injunction (and, if so, whether and for how long to suspend it) is bound to come to some broad view as to the degree of environmental damage resulting from the breach and the urgency or otherwise of bringing it to an end. In this regard the court need not shut its mind to the possibility of the planning authority itself coming to reach a different planning judgment in the case.

41.

True it is, as Mr McCracken points out, that, once the planning decision is taken as final, the legitimate aim of preserving the environment is only achievable by removing the gipsies from site. That is not to say, however, that the achievement of that aim must always be accepted by the court to outweigh whatever countervailing rights the gipsies may have, still less that the court is bound to grant injunctive (least of all immediate injunctive) relief. Rather I prefer the approach suggested by the 1991 Circular: the court's discretion is absolute and injunctive relief is unlikely unless properly thought to be “commensurate” — in today's language, proportionate. The Hambleton approach seems to me difficult to reconcile with that Circular. However, whatever view one takes of the correctness of the Hambleton approach in the period prior to the coming into force of the Human Rights Act 1998, to my mind it cannot be thought consistent with the court's duty under s.6(1) to act compatibly with convention rights. Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the public interest objective sought — here the safeguarding of the environment — but also that it does not impose an excessive burden on the individual whose private interests — here the gipsy's private life and home and the retention of his ethnic identity — are at stake.

42.

I do not pretend that it will always be easy in any particular case to strike the necessary balance between these competing interests, interests of so different a character that weighing one against the other must inevitably be problematic. This, however, is the task to be undertaken by the court and, provided it is undertaken in a structured and articulated way, the appropriate conclusion should emerge.”

The relationship between the Court’s jurisdiction under this section where proceedings are also instituted for judicial review of the council’s decision to commence such proceedings was considered by the High Court in R v Basildon DC ex p. Clarke [1996] JPL 866. Where the County Court had refused to adjourn proceedings on the injunction to allow the application for judicial review to be determined Mr Justice Carnwath, as he then was, said as follows:–

“If something had gone seriously wrong with the procedure, whether in the initiation of the injunction proceedings or in any other way, it was difficult to see why the County Court judge could not properly take it into account in the exercise of his discretion to grant or refuse the injunction. That was quite different from opening before the County Court the whole issue of the planning merits, which of course were a matter for the authorities. Conversely, if there was no substantial defect in the procedure, there was no reason why the County Court should grant an adjournment for a leave application for judicial review, nor why the application for judicial review should be successful. In West Glamorgan CC v Rafferty [1997] 1WLR 457 and Avon CC v Buscott [1998] 1QB 656, it was held at proceedings by a local authority possession of its own land could not be resisted by a Wednesbury challenge to the decision to initiate the proceedings. Whatever the position is possession proceedings, … The court’s powers in respect of the grant of an injunction were inherently discretionary. If an authority seeking an injunction under section 178B were thought by the court to be acting (as in Rafferty) in a way that no reasonable authority should, he could see no reason why the court should not simply dismiss the application for an injunction as a matter of discretion.”

I was also referred to the decisions in the Court of Appeal in O’Brien and Others v South Cambridgeshire District Council [2008] EWCA Civ 1159 at paragraphs 31 and 32 and to the decision of Mr Justice Gray in Aylesbury Vale District Council v Douglas Gwent and Others [2007] EWHC 724(QB) and have that guidance given in these cases very much in mind when considering the various submissions made in this case.

It is common ground that the legal burden is on the Defendant to prove that an injunction is not required.

The following paragraph provides government guidance in respect of injunctions: –

“Paragraph: 050 reference ID:17b-050-20140306

How does a local authority decide whether seeking an injunction to restrain a breach of planning control is appropriate?

A local planning authority can where they consider it expedient for any actual or apprehended breach of planning control to be restrained, apply to the High Court or County Court for an injunction to restrain a breach of planning control (section 187B of the Town and Country Planning Act 1990).

In deciding whether it is necessary or expedient to seek an injunction, local planning authorities may find it helpful to consider whether:

•

they have taken account of what appear to be relevant considerations, including the personal circumstances of those concerned;

•

there is clear evidence that a breach of planning control has already occurred or is likely to occur;

•

injunctive relief is a proportionate remedy in the circumstances of the particular case;

•

in the case of an injunction sought against a person whose identity is unknown, it is practicable to serve the court’s order on the person or persons to whom it will apply;

•

a local planning authority can apply for an injunction whether or not it has exercised, or proposes to exercise, any of their other powers to enforce planning control. However, proceedings for an injunction are the most serious enforcement action that a local planning authority can take because if a person fails to comply with an injunction they can be committed to prison for contempt of court. Additionally once an injunction has been granted, it cannot be discharged except where there has been a significant change of circumstances since the order was made. In these circumstances a local planning authority should generally only apply for an injunction as a last resort and only if there has been persistent breaches of planning control over long period and/or other enforcement options have been, or would be ineffective. The court is likely to expect the local planning authority to explain its reasons on this issue.

Revision date: 06 03 2014”

On 30 April 2014 the Defendant secured planning permission (by way of a section 78 of the Act appeal) in respect of the Site for “demolition of the garage at 42 Avon Crescent and the erection of 85 dwellings, associated amenity space, access, car parking and ancillary development”.

It is fair to record that the application for planning permission aroused strong local feeling and was met with strong local opposition which was championed by local councillors. Although the application was recommended for approval by the Claimant’s planning officers, it was rejected by the relevant planning committee, hence the need for the ultimately successful appeal to the Planning Inspectorate.

A number of conditions were attached to the planning permission including the following: –

“5)

Development shall not begin until full details of both hard and soft landscape works based on drawing no. JBA12/215-SK01 and the suggestions in the Phase 1 Habitat Survey by JBA dated January 2013, have been submitted to and approved in writing by the local planning authority. These details shall include, proposed finished ground and floor levels; all means of enclosures; vehicle and pedestrian access and circulation areas; hard surfacing materials; minor artefacts and structures, including street furniture, play equipment, refuse or other storage units, signs, lighting etc; proposed functional services above and below ground; and a programme for implementation and maintenance. All hard and soft landscape works shall be carried out in accordance with the approved details, and the implementation and maintenance programmes.

19)

No development shall take place, including any works of demolition, until an Environmental Construction Statement has been submitted to and approved in writing by the local planning authority. The approved Statement shall be adhered to throughout the construction period and shall provide for:

i)

the parking of vehicles of site operatives and visitors;

ii)

the loading and unloading of plant and materials;

iii)

the storage of plant and materials used in constructing the development;

iv)

the erection and maintenance of security hoarding including any decorative displays and facilities for public viewing;

v)

wheel washing facilities;

vi)

measures to control the emission of dust and dirt during construction;

vii)

a scheme for recycling/disposing of waste resulting from demolition construction work;

viii)

a construction traffic management plan, to address the nature and size of the vehicles entering and leaving the site, the permitted times for deliveries and collections and any measures necessary to ensure safety on the highway and for neighbouring nearby residents.”

The Defendant’s Construction Ecological and Environment Management Plan Method (the “Method Statement”) includes the following provisions material to the issues raised in this application: –

“1.1

Purpose

This Construction Environmental Management Plan (CEMP) has been prepared to provide an actively managed framework needed for the planning and implementation of Construction Works proposed at Milestone Road, Stratford in accordance with the environmental commitments required by the planning conditions and section 106 agreement in relation to the consented outline planning permissions (APP/J3720/A/13/2207830) dated 30.04.2014.

This document is to be read in conjunction with the MV Kelly Traffic Management Plan

The actions set out in this plan are intended as a tool for anticipating, recording and mitigating any impacts and it provides generic and specific actions to be undertaken whether prior to or during the Construction Works. Construction Works on site are to be undertaken with due regard to this EMP. The EMP is applicable to all staff and operatives working on the project, throughout the construction phase and aims to minimise disturbance to local residents.

1.3

Environmental Policy

The project recognises that its activities impact directly on the environment and is therefore committed to:

•

ensuring full compliance with any relevant statutory legislation or guidelines with the contract.

•

treating all legal obligations as the minimum standard;

•

identifying and assessing environmental aspect in advance and ensuring, where possible, that controls are implemented and maintained; and

•

putting measures in place to prevent and control pollution incidents.

1.4

Roles and Responsibilities

Project Manager/Director

The Project Director/Manager is responsible for the effective resourcing of staffto ensure that the environmental requirement identified in the EMP are undertaken and to check that construction activities comply with the requirements of the EMP.

Environmental Managers

The Environmental Manager will be responsible for coordinating and managing all the environmental activities during the construction phase. The Environmental Manager’s responsibilities include:

•

monitor construction activities and performance to ensure compliance with the EMP and that identified and appropriate control measures are being effective;

•

ensure delivery of environmental training to personnel with the project team;

•

act as main point of contact between the regulatory authorities and the project on environmental issues;

•

develop and review the EMP and specialist procedures;

•

manage and coordinate work carried out by the environmental specialists;

•

lead the appointment of environmental specialists as appropriate.

Environmental Clerk of Works (EnviroCW)

The Contractor’s ECW (EnviroCW) is responsible for advising on environmental activities on the project, report to the Environmental Manager. The EnviroCW’s responsibilities include:

•

monitoring of construction activities and performance to ensure that appropriate environmental control measures are being implemented and are effective;

•

provision of advice and liaison with construction team to ensure that environmental risks are identified and appropriate controls are developed and included within Method Statements and Risk Assessments; and

•

in conjunction with the environmental specialists, overall monitoring of the programme for environmental works, and provision of status reports as necessary.

1.6

Method Statement

Method Statements will be completed by, or on behalf of, the Contractor or Subcontractor by trained engineers or other appropriately experienced personnel, in consultation with on-site environmental staff and environmental specialists from the LPA (where necessary). Their production will include a review of the environmental risks and commitments, as identified in the Environmental Risk Assessment, so that appropriate control measures are developed and included within the construction processes.

Method Statements will be reviewed and approved for use by the Environmental Manager and, where necessary, by an appropriate environmental specialist. Where appropriate, Method Statements will be submitted to the enforcement agencies (Environment Agency, Natural England, Stratford District Council’s Environmental Health Officer etc). Method Statements shall contain as a minimum:

•

any permit or consent requirements;

•

work to be undertaken and methods of construction;

•

labour and supervision requirements;

•

health, safety and environmental considerations;

•

location of the activity and access/egress arrangements;

•

plant and materials to be used (including spill kits).

1.7

Environmental Risk Assessments

All activities undertaken on site will be subject to an Environmental Risk Assessment to be carried out by the Contractor or Subcontractor. Environmental Risk Assessment will be undertaken by trained staff following an approved procedure which will:

•

identify the significant environmental impacts that can be anticipated;

•

assess the environmental risks from these impacts;

•

allocate responsible person for actioning required control measures.

•

identify the control measures to be taken and re-calculate the risk;

•

report where an inappropriate level of residual risk is identified so that action can be taken through design changes, re-scheduling of work or alternative methods of working in order to reduce the risk to an acceptable level;

The results of an Environmental Risk Assessment and its residual risk are considered acceptable where using all reasonable endeavours, the severity of outcome is reduced to the lowest practical level; the number of risk exposures are minimised; all reasonably practical mitigating measure have been undertaken; and the residual risk is reduced to a minimum.

The findings of the Environmental Risk Assessment and, in particular the necessary controls, will be explained to all operatives before the commencement of the relevant tasks using an agreed instruction format.

…

1.10

Environmental Monitoring and Auditing

Audits

The purpose of environmental auditing is to provide and check that appropriate environmental supervision is taking place, in accordance with statutory requirements and the EMP. The Environmental Audit will also review the results of monitoring undertaken during construction, in order to identify the need for any additional environmental management or mitigation measures to be implemented.

Internal Audits/Inspections will be undertaken by the ECW to establish that procedures and actions highlighted in the EMP are being implemented and to confirm conformity with the Contract requirements. An Environmental Audit will be produced at regular intervals to be agreed between the ECW and the Project Manager, certifying compliance with the required standards, and identifying any areas of non-compliance, including remedial actions to be taken. The scope of the Environmental Audit will cover all of the environmental aspects and impacts relating to construction. The Audit will comprise of unspecified visits as appropriate. Non-conforming processes will initiate a Non-Conformance Report, which will identify the nature of the problem, the proposed corrective action taken to avert recurrence of the problem, and verification that the agreed actions have been carried out.”

4.0Construction Traffic Management Plan

3.2

Those activities that may give rise to audible noise at the surrounding properties and heavy goods vehicle deliveries to the site will be limited to the hours of 08.00 to 18.00 Monday to Friday and on 08.00 to 13.00 on Saturdays. Deliverys [sic] are to be avoided during 8am-9am and 3pm-4pm.

Those activities that are unlikely to give rise to noise audible at the site boundary may continue outside of the stated hours.

3.3

Construction plant capable of generating significant noise and vibration levels will be operated in a manner to restrict the duration of the higher magnitude levels.

3.4

Vehicles and Plant on site will be maintained in accordance with Appendix A

3.5

Security hoarding/fencing will be erected around the boundary of the site in the form of herras fencing. The fencing will double up as tree/hedge protection on the site perimeter.

4.1

A Construction Traffic management plan addresses the following:

•

…

•

Gate person to be in place during site activites

•

…

•

The gate person will be responsible for policing the arrival/departure of goods vehicles ensuring that they are aware not to mount the pavements

3.2

Deliveries to the site will be outside of the peak hours to minimise the effect of congestion, noise and local air pollution.

•

Suppliers for deliveries and collections will be contacted and notes inserted on the order confirming that deliveries and collections are to be outside of the schools time.

The time frames for deliveries to be avoided are between 8am-9am and 3pm-4pm these have been included on the orders to our suppliers.

•

Safety to pedestrians/children accessing the play area is noted and at the site induction contractors/drivers etc will be made aware. Should offences take place on the public highway-Milestone Road Then appropriate action can be taken and the relevant authorities notified.

•

The approximate number of contractors expected on site at any one times is 40. 26 dedicated parking spaces are provided however over flow parking is allocated on the completed drives of the property under construction. Site management parking is provided in addition to this within the compound areas.

•

Plant and materials will be unloaded adjacent to the storage areas

•

Those activities that may give rise to audible noise at the surrounding properties and heavy goods vehicle deliveries to the site will be limited to the hours 08.00 to 18.00Monday-Friday and 08.00 to 13.00 on Saturdays. Deliverys [sic] are to be avoided during 8am-9am and 3pm-4pm.

•

Those activities that are unlikely to give rise to noise audible at the site boundary may continue outside the stated hours.

•

Vehicles associated with the site including workforce and deliveries are to include: Articulated Lorry, Rigid HGV Lorry, 7.5 tonne delivery vehicle, Light Commercial Goods Vehicle, Cars.

Articulated Lorry delivery drivers are to phone ahead to site, prior to making the necessary delivery. The contact with the site manager will control the traffic flow within Milestone Road.

3.3

…

Extra care will be taken, when deliveries arrive on site. All reversing will be kept to a minimum, delivery and site vehicles will be banked at all times.

…

The Defendant’s Operational Phase Ecological Development includes the following provisions: –

“To ensure that the existing trees/hedges continue to thrive in the new environment

The implementation of landscaping work shall be carried out concurrently with that phase of development and shall be completed within one year of substantial completion of that phase of development

Creation of new areas of public open space that incorporates and enhance the setting of existing trees, and the younger specimen trees

•

the retention and enhancement of existing boundary trees and hedges (where included on the site)”

During the course of July and October 2014 the Claimant became aware of complaints received from residents who live in close proximity to the Site that the Defendant was breaching various planning conditions.

The Claimant served five Breach of Condition Notices on the Defendant between January and July 2015, three of which related to non-compliance with condition 19 and one related to non-compliance with condition 5. The Defendant did not challenge any of these notices by way of judicial review. Needless to say, the time limit for pursuing a challenge by way of judicial review has passed.

By a signed letter of undertaking dated 12 August 2015 the Defendant made the following undertaking: –

“Please accept this letter as Persimmon Homes South Midlands’ undertaking to take reasonable measures for as long as it remains in control of the Development to ensure that its employees contractors and suppliers will comply with Condition 19 of the planning permission (reference 13/01342/FUL) for the Development, the approved Environment Construction Management Plan and Traffic Management Plan, as far as is reasonably practicable.”

In this application the Claimant alleges a number of breaches of planning control which it is convenient to group under the following broad headings:

What is sought by the Claimant is an order that the Defendant must:

“i Avoid any deliveries to the [Site] between the following hours [as specified in section 4.2 on pages 13-14 of the approved Construction, Ecological and Environmental Management plan pursuant to condition 19]:

08:00-09:00.

15:00-16:00.

ii Throughout the construction period all deliveries and site vehicles will be banked at all times, in accordance with section 3.1 of the Construction Phase Health and Safety Plan (dated 20 September 2014) approved in writing by the Local Planning Authority of 10 November 2014.

iii Provide a gate person throughout the construction period, who shall be responsible for policing the arrival/departure of goods vehicles and shall use all reasonable endeavours to ensure that they are not to mount the pavements (section 4.1 of Construction, Ecological and Environmental Management Plan]

iv Implement the soft landscape works in accordance with the programme approved in writing by the Claimant on 10 December 2015”.

I now turn to deal with these respective allegations in detail.

The Defendant for its part asserts that upon a proper construction of the Method Statement it has fully discharged its obligations and is not in breach. Alternatively, it submitted on the Defendant’s behalf that the court ought to exercise its discretion to refuse to grant the injunction sought in all the circumstances of the case.

There is a dispute between the parties as to the proper construction of paragraph 3.2 and paragraph 4.2 of the Method Statement. The Claimant submits that they mean that deliveries should not take place between the stipulated hours which I will refer to as the “prohibited hours” and that by deliveries what is plainly meant as a matter of common sense is both incoming and outgoing delivery vehicles. Moreover it does not matter whether the delivery took place 11 minutes or 30 minutes into the prohibited hours. In the alternative the Claimant relies on the use of the word “cease” in the Breach of Condition Notice dated 24 June 2015, and in any event on the Defendant’s own evidence the Claimant asserts that there have been three breaches since the undertaking was given (namely on 1, 2 and 14 September 2015) which are sufficient of themselves to warrant the granting of injunctive relief. It was also submitted that it mattered not whether the alleged breaches were by sub-contractors over whom the Defendant had no effective control, nor that the numbers of breaches were small, compared with the total number of traffic movements to and from the Site.

The Defendant for its part, points out that neither in its pleaded case nor in its evidence is there a single allegation of breach between 8am-9am and therefore this aspect of the proposed injunctive relief should be dismissed without more.

More generally, the Defendant also submits that on a proper construction of the wording of the Method Statement deliveries between the prohibited hours are merely to be avoided in the sense of being discouraged insofar as that is reasonably practicable and adopting that construction, the Defendant submits that it cannot sensibly be regarded as having breached its obligations in circumstances where the number of deliveries made between the prohibited hours is so small, the only such breaches being on 9 January, 9 March, 15 June, 22 June and 8 July.

In support of its construction of the relevant provisions of the Method Statement, the Defendant relies upon the following matters of which it submits the parties would have been well aware:

Moreover it was submitted that the Method Statement fell to be construed as a whole and in that context reliance was placed on its expressed purpose namely to provide an actively managed framework needed for the planning and implementation of the construction works, the inference being that it was intended to provide a framework rather than a straightjacket: that it was expressly stated to be intended as a tool for anticipating, recording and mitigating any impacts, the inference being that it was a means to an end rather than an end in itself; that it was envisaged that it would be kept under review and revised as appropriate, the inference being that both parties expected that the Method Statement would be refined if necessary to address particular problems; and that both parties contemplated the application of “all reasonable endeavours” and the taking of “all reasonably practical mitigating measures”.

To my mind there is considerable force in the submissions made on the Defendant’s behalf on this issue and the better view is that the phrase “to be avoided” is to be understood in the sense that deliveries are to be discouraged, not that they are in all circumstances prohibited. For the avoidance of doubt, however, I do construe the term deliveries as extending to both incoming and outgoing delivery vehicles. On this construction it does not seem to me that the Defendant can sensibly be regarded as having breached its obligations on the evidence relied on.

Even if I were to be wrong as to the construction of the relevant provisions of the Method Statement and to take account of the Claimant’s submission based on the wording of the Breach of Condition Notice it does not seem to me that it is appropriate in this case to grant injunctive relief on the basis of this allegation considered in isolation since there is no reason to suppose that the deliveries will be made to this Site in the future within the prohibited hours and there is no reason to suppose that conventional enforcement measures would be ineffective.

To my mind, the Defendant has gone to great lengths to seek to ensure observation on the relevant provisions of the Method Statement made by sub-contractors as is apparent from the witness evidence of Mr Turner and equally the Defendant’s site manager has conscientiously sought to avoid such deliveries. I have no doubt that the Defendant will continue to ensure that the terms of the Method Statement and the relevant Breach of Conditions of Notice, will be complied with. As things currently stand, the Defendant will be liable to criminal conviction should a delivery be made in the prohibited hours and that sanction is one which, I am satisfied, on the evidence, the Defendant takes very seriously and will continue to take very seriously in the future until this development has been completed.

To my mind the weight to be attached to the evidence filed in support of the Claimant’s decision to pursue injunctive relief is relatively low in this case, particularly in circumstances when there was no objective evidence to suggest that prosecution for non compliance with a Breach of Condition Notice would not be effective and it’s difficult to see that it could sensibly be concluded that the only means of securing compliance was by way of injunctive relief.

In all the circumstances of this case, the grant of injunctive relief on this ground is simply not proportionate.

Reliance is placed on section 3.1 of the Construction Health and Safety Plan which states as follows:

“Extra care will be taken when deliveries arrive on site. All reversing will be kept to a minimum, delivery and site vehicles will be banked at all times.”

Banking is an expression used in the construction industry to describe what happens when a person known as a “Banksman” stands behind a vehicle better to guide the driver during a reversing manoeuvre.

What is alleged by the Claimant is that the Defendant has failed on its own evidence to comply with an obligation for site vehicles to be banked at all time. Reliance is placed on the evidence of Mr Goodyer, identifying alleged breaches on 17 December 2014, 6 January, 7 January, 14 January, 21 January, 22 January, 6 February and 25 June 2015, notwithstanding that these alleged breaches are not specifically mentioned in the Grounds of Claim. Moreover the Claimant also submits that since the provision of the undertaking by the Defendant, a further breach took place on 16 September 2015, the only breaches formally pleaded.

The Defendant for its part submitted that there had been no breach of the obligation notwithstanding the issue of a Breach of Condition Notice, and that specifically so far as the complaint relating to 16 September 2015 was concerned, it was said that it was without foundation since there was no evidence that the vehicle in question was even reversing. The evidence relied upon by the Claimant related to its mere presence and in those circumstances the Claimant could not prove to the required standard that the Defendant had breached the obligation regarding banking.

I accept the force of that submission, accepting as I do the evidence of the Defendant’s witnesses both as to the absence of evidence of breach in respect of the incident on 16 September 2015 and as to the alleged earlier incidents. In that regard, it is to my mind unsatisfactory for a local planning authority seeking to pursue injunctive relief of the type pursued here to seek to rely on matters which are not specifically pleaded and not appropriately covered in the evidence filed in support.

To my mind, the application for injunctive relief in this regard is disproportionate and verging on the oppressive.

The Claimant’s complaint is not that the Defendant failed to provide a gate person, ( the Claimant accepts that it did) rather it is that such a person was to be “responsible for policing the arrival/departure of goods vehicles, ensuring that they are aware not to mount the pavement” and that he/she was located in the wrong place, coupled with the numerous occasions when it is said vehicles mounted the pavement as set out at paragraphs 7.15 and 7.16 of the Grounds of Claim from which it could be inferred that the gate person had not been performing his/her duties adequately.

To my mind this allegation is without foundation. The Claimant appears to have proceeded on the basis that the Defendant’s obligation was to ensure that the gate person performed his duties at the entrance to the site and nowhere else and to prevent delivery vehicles mounting the pavement; whereas in fact the obligation was to ensure that the drivers of such vehicles were aware of the need not to do so.

It is plain that there is some evidence of lorries mounting kerbs on occasions. On the evidence, I am satisfied on the balance of probabilities that that problem arose because of work carried out in Milestone Road in January 2015 by a utility company. It is plain that upon receipt of the first complaint on 12 January the Defendant offered to provide an extra man, even though that was not provided for in the Method Statement, and that at a meeting on 27 February the Defendant’s Managing Director offered to erect barriers to prevent drivers mounting the kerb on Milestone Road, an offer which the Claimant declined. Both these matters are illustrative of the lengths to which the Defendant has gone to allay any legitimate concerns of the Claimant.

Moreover, it is not without significance that at an inspection of the Site on 5 March 2015, Warwickshire County Council’s Highways Department’s Inspector entered “all good” in the site diary.

So far as the post undertaking allegations of breach are concerned, it is not even alleged that a gateman was not on site on 25 September and 13 October. Rather, what is said is that the Planning Enforcement Officer saw no evidence that he was present. In fact, he was there to be seen, as is evidenced by the relevant timesheets produced by Mr Turner.

It follows in my judgment that the application for injunctive relief is both disproportionate and oppressive.

I can deal with this aspect very shortly. As I understand the position, the Claimant was initially pursuing this aspect of the claim in order to ensure that the Defendant provided the Claimant with a programme for the implementation and maintenance of soft landscaping works, in accordance with Condition 5. In fact the Defendant submitted a programme for implementation on 1 October 2015 which the Claimant deemed insufficient. A further programme was submitted on 6 November 2015, which was approved in writing by the Claimant on 10 November 2015, and accordingly that aspect of the claim for injunctive relief is no longer pursued.

The Claimant does, however, pursue its claim requiring the Defendant to implement the scheme in accordance with the approved programme, it being submitted that, to date, the Defendant has failed to implement the soft landscape works correctly in that they have applied a buffer zone that does not accord with the approved landscape drawings. Further it is said that the injunction is necessary to ensure that the Claimant can enforce as against the Defendant, as opposed to having to pursue purchasers of individual plots.

It emerged during the course of the hearing that the Defendant was labouring under a misapprehension as to what constituted implementation of the soft landscaping works, and in particular as to the size of the buffer zone. Now that that misapprehension has been laid to rest I have no doubt that the Defendant will complete the landscaping work in accordance with the approved scheme. Had there been, as there ought to have been, more effective dialogue between the Claimant’s officers and the Defendant, this misapprehension would undoubtedly have been identified and rectified at an early stage. The Defendant has demonstrated by its actions that it is anxious to comply with its obligations, and but for the misunderstanding, considered that it has done so.

In the circumstances, the granting of injunctive relief at this stage is unnecessary and disproportionate. Of course, the position might be different in the future, and notwithstanding the confidence I have expressed in the Defendant’s desire to comply with its obligations in this regard, if in fact the Defendant does not comply with the approved programme.

It follows in my judgment that the Claimant’s application for injunctive relief should be dismissed.

I trust that the parties will be able to agree the terms of an order which reflects the substance of this judgment and deals with costs. If the parties are unable to agree on any matter, then they should each file and serve by noon on Friday 18^th December 2015 a short skeleton argument identifying the difference(s) between them and setting out their respective submissions on those areas of difference which can then be resolved on paper and without the need for either party’s attendance when this judgment is formally handed down.

Finally I would like to take this opportunity to thank both counsel for their helpful and comprehensive submissions.