Local authority obtains injunction to prevent fly-tipping

Fly-tipping is “development” for the purposes of section 55 of the Town and Country Planning Act 1990 and capable of being the subject of injunctive relief under section 187B. The High Court has considered this issue in London Borough of Havering v Stokes and others [2024] EWHC 2496 (KB). The case concerned the claimant’s application for a precautionary injunction to address the problems arising from unauthorised Traveller encampments associated with fly-tipping – behaviour which the claimant acknowledged was engaged in only by an unrepresentative minority of members of the Traveller and Gypsy communities. An interim order was obtained in September 2019 but the final hearing was delayed until judgment was handed down by the Supreme Court in Wolverhampton City Council and others v London Gypsies and Travellers and others [2023] UKSC 47; [2023] PLSCS 197. Planning permission is required for “development”, which under section 55 means the carrying out of building, engineering, mining or other operations in, on, over or under land, or any material change of use. The deposit of refuse or waste materials on land involves a material change of use if the area of deposit is extended or its height exceeds surrounding levels. A local planning authority can seek an injunction under section 187B where it considers it necessary or expedient for any actual or apprehended breach of planning control. Between July 2016 and July 2019 there were 96 unauthorised encampments associated with commercial fly-tipping – obtaining waste from other locations, for payment, and then depositing it on a site which has been entered and occupied unlawfully, thereby avoiding paying landfill tax at a licensed site – as well as forcible entry to property and aggression by occupiers to others. The number of unauthorised encampments had markedly reduced once the interim injunction was granted. When considering whether to grant an anticipatory injunction against a named defendant, a two-stage test must be satisfied: is there a strong possibility that unless restrained by injunction the defendant will breach the claimant’s rights; and if the defendant did so, would the resulting harm be so grave and irreparable that damages would be inadequate: see Vastint Leeds BV v Persons Unknown [2018] EWHC 2456 (Ch). The claimant’s Scott Schedule linked the named defendants to unauthorised encampments where there was forcible entry or fly-tipping, through vehicles registered to them. The court was satisfied that there was a sufficient degree of risk coupled with conduct of such gravity or consequences that a borough-wide injunction until October 2025 was warranted against 42 named defendants, and site-specific injunctions were appropriate for a further nine. Louise Clark is a property law consultant and mediator