HIGH COURT INJUNCTION GRANTED TO ENFORCE PLANNING CONDITION ON CLAY PIGEON SHOOT

Aylesbury Vale District Council v Florent and others [2007] All ER (D) 04 (Apr) [2007] EWHC 724 (QB)

The defendants were granted planning permission, subject to conditions, for clay pigeon shooting to take place on their farm. Condition 2 required that shooting would cease after the expiry of 12 months from the grant of permission, unless a scheme, inter alia, to reduce noisem had been 'implemented'. Condition 4 required that the mean shooting noise levels, calculated by reference to guidance on clay pigeon shooting issued by the Chartered Institute of Environmental Health should not exceed specified levels. Part of the works envisaged by the scheme included the construction of bunds, for which significant amounts of material had to be brought on site. The scheme of works had yet to be completed more than 12 months later, and the local authority continued to receive complaints about noise from the site. In November 2004, it issued an enforcement notice in respect of condition 4, against which the defendants lodged no appeal. The authority gave written notice of breaches of condition 4 in April 2006, and sought an undertaking from the defendants to cease all works until the scheme had been completed. As no suitable undertaking had been forthcoming, the authority applied for injunctive relief under s 187B of the Town and Country Planning Act 1990, requiring observance of conditions 2 and 4. There was evidence that the scheme of works would take another six or seven years to complete. The defendants took a preliminary point that planning permission for shooting on the site had not been required at all because shooting, at more or less the same level of activity, had been carried out on the farm since 1992. Mr Justice Gray held that whilst it was open to the defendants in principle both to seek planning permission and to argue that none was requiredm they could not do so when there was an extant enforcement notice prohibiting the very use of land that was said to have become lawful by ten years of continuous and uninterrupted use. In the absence of any appeal against the enforcement notice, the court had no jurisdiction to make any finding of fact or law that undermined the conclusive determination in that notice that there had been a breach of planning control. The court also held that on its true construction, the word 'implemented' in condition 2 had been used on the sense of 'completed' such that shooting should have ceased after the expiry of 12 months from the grant of permission. Balancing the right of local residents to peaceful enjoyment of their land on the one hand, and the rights of the defendants and their employees on the other, it would not be appropriate to grant an injunction that would severely inhibit, if not prevent entirely, any clay pigeon shooting for the long period of time that would be necessary to complete the bunding works. Having regard to condition 4, there was no unfairness in adopting the guidance as a method of setting the appropriate noise level. The court granted an injunction would be granted requiring shooting on the farm to be operated at all times in compliance with condition 4 of the planning permission.

Gregory Jones and Juan Lopez appeared for Aylesbury Vale District Council (instructed by Sharpe Pritchard).