[2025] EWCA Civ 1134

Mr Riley-Smith accepts that the behaviour of a defendant can be a relevant consideration in a section 187B injunction. As South Bucks and Ipswich make clear, the flagrancy and degree of the breach is relevant. However, the context for that relevance is enforcement and the risk that conventional enforcement methods would fail. This is made clear in the first South Bucks principle cited in Ipswich at [93]:

“The need to enforce planning control in the general interest is a relevant consideration and in that context the planning history of the site may be important. The "degree and flagrancy" of the breach of planning may be critical. Where conventional enforcement measures have failed over a prolonged period the court may be more ready to grant an injunction. The court may be more reluctant where enforcement action has never been taken.”

This is further illustrated in how the “flagrancy” point counted against the defendant in Great Yarmouth (see [67] and [76]):

“With these conclusions in mind, I return to the Ipswich judgment at [114]. Ordinarily, the integrity of the planning system is not undermined by a local planning authority having to rely upon the normal enforcement regime, which allows an activity to continue while the merits of an appeal against an enforcement notice are under consideration. But in this case, normal enforcement action has indeed been taken and pursued to the point where the notice has come into force. Although the 2006 enforcement notice remains in force on the Villa Rose site, neither that notice nor the related criminal sanctions are proving effective to prevent a potential breach of Policy GY6.”

However, in this case that factor was not present because the judge rightly found that Somani had acted in good faith and their actions were openly based on a genuine belief that they did not require planning permission. Therefore, there could be no concern that conventional enforcement measures would fail and – as Holgate J observed in Great Yarmouth – that the integrity of the planning system would be undermined by a local planning authority having to rely upon the normal enforcement regime which allows a use to continue.

Mr Riley-Smith submitted that the judge’s criticisms of Somani for their “deliberate” decision not to apply for planning permission or a certificate of lawful development fails to recognise that there is no requirement in our planning system for landowners to establish that a use is lawful through testing the proposition by either a planning application or certificate of lawfulness. He emphasised that when Somani had previously submitted a planning application it sat with the Council for over a year without being determined – calling into question the urgent need to have consideration and scrutiny of the planning merits of the alleged breach of planning control.

The question (and criticism) should not be why Somani did not proactively test their case through a planning application / lawful certification knowing the Council took a different view, but instead should be why the Council did not proactively enforce against Somani knowing the company took a different view, particularly during the 3-month period from May to August 2025.