Judge declines to grant injunction to Welsh council against defendants who remain in breach of planning control

Two brothers in breach of planning control over their farm buildings have escaped an injunction after a judge decided they would face serious financial hardship were one granted and that they had tried to address planning objections.

His Honour Judge Keyser KC sat as a judge of the High Court in the case brought by Pembrokeshire County Council against Ryan and Declan Cole.

Pembrokeshire applied for a mandatory injunction against them under section 187B of the Town and Country Planning Act 1990 for unauthorised development at the farm in Narberth.

The judge noted that since proceedings began much of the unauthorised development had been remedied, and the proposed injunction was limited to the removal of a cattle shed and covering an access track to it with soil.

In October 2018 the brothers submitted an application for a determination as to whether the prior approval was required for the erection of an agricultural building.

They heard nothing after 56 days and mistakenly believed work could start under permitted development rights.

Two months later, a member of the public complained about unauthorised development and the council found the brothers had without planning permission built a structure comprising a goat shed, cattle shed, parlour and dairy, a pole barn, solar array, wind turbine, static caravan with porch and a farm track.

They made a fresh planning application in January 2020, which was refused due to adverse impact on residential amenity and potential environmental pollution from waste water.

Pembrokeshire in February 2021 issued an enforcement notice under section 172 of the Act, requiring the brothers within three months to demolish all the structures and cover the site and track with soil.

Declan Cole then appealed to the Welsh Ministers against the enforcement notice under section 174 of the Act on the ground that three months was too short a period for compliance, and an inspector substituted nine months.

The brothers then instructed Agri Advisors, a specialist firm of solicitors dealing with agricultural and rural matters.

HHJ Keyser said: “Before me, it was suggested that the defendants had suffered from poor advice from Agri Advisors, namely not to appeal against the enforcement notice on grounds related to the planning merits.

“Although I am not privy to details of any advice given, I am unimpressed by the criticism of the defendants' former solicitors. It is clear that the appeal under section 174(2)(g) was intended to provide an opportunity for the defendants, with the necessary professional help, to prepare a new application for planning permission that would (it was hoped) address the substantive issues.”

They then made a further application for the farm building and access track, which was later refused, and in December 2022 council officers found none of the enforcement notice had been complied with.

The brothers were prosecuted at Haverfordwest Magistrates' Court and each fined £1,000.

Pembrokeshire then applied for a mandatory injunction requiring compliance with the enforcement notice.

HHJ Keyser said there were powerful arguments for Pembrokeshire’s case, but said: “I have decided not to exercise my discretion by granting an injunction.”

He explained: “I do not regard this case as involving flagrant disregard for planning control, inasmuch as the defendants have made genuine efforts to regularise the position and to obtain the necessary permission.

“Some of those efforts have been inexpert; like the planning inspector who determined the appeal against the enforcement notice, one has sympathy for the defendants in that regard.

“Latterly, the defendants have been able to make a successful response to some of the planning objections advanced by the claimant, though they have still not established that they can meet the environmental concerns.”

Pembrokeshire had not shown that an injunction was required as an urgent intervention to prevent environmental harm.

Turning to the brothers’ pleas of hardship, the judge said they would not be allowed "to flout planning control by their pleas of hardship, anxiety or being hard-done-by by professionals or the local planning authority.

“Nor, despite this judgment, can they hope to remain in breach of planning control by seeking to draw out the planning process endlessly.”

But he said the Coles had “genuinely sought to address the planning objections to their development, that they continue to do so, and that they have a pending planning application that cannot be regarded as having no real prospect of success.

“I accept that an injunction requiring them to remove the shed and track at this stage would probably cause them serious financial harm and, in addition, would be likely to be dispositive of the pending planning application by rendering it nugatory.”

Mark Smulian