Planning Circular 10/2009: Planning Enforcement

ANNEX L
INTERDICTS TO RESTRAIN BREACHES OF PLANNING CONTROL

Provisions

1. Section 146 of the 1997 Act enables planning authorities to apply for an interdict to restrain breaches of planning control. The availability of this provision is not dependent on the exercise of any other powers under the 1997 Act.

Application for an Interdict

2. A planning authority may seek to restrain or prevent any breach of planning control, whether actual or apprehended, by applying to the Court for an interdict. Planning authorities should be aware that as long as their application for an interdict is not frivolous and is supported by evidence that a breach of planning control is likely to occur in the near future the planning authority need have no fear of being found liable for damages simply because the apprehended breach did not occur. Applications may be made either to the Court of Session or to the Sheriff.

3. It is for each planning authority to decide when it is appropriate to apply for an interdict. An application should be made on the basis of their assessment of the seriousness of the breach of control and the particular circumstances of the persons against whom proceedings are contemplated. Before initiating proceedings, planning authorities will need to assess the likely outcome (if necessary, by obtaining appropriate legal advice) and the risk of incurring wasted expenditure on abortive proceedings. In assessing the possible costs, the planning authority should bear in mind that there may be a liability in damages for all loss arising to the developer from the activity having been prevented by the interdict if it is subsequently shown (e.g., in an enforcement appeal to the Scottish Ministers) that no breach of planning control had occurred on the land.

4. A planning authority may also apply for an interim interdict which is an interim measure designed to preserve the status quo or prevent temporary and imminent wrong. This is a discretionary remedy and the planning authority must be able to establish a prima facie case whereupon the court will proceed to consider whether, upon balance of convenience, the planning authority has presented sufficient facts to establish a compelling need for immediate protection by the grant of an interim interdict.

The Court's Decision

5. The Court may grant such an interdict as it thinks appropriate for the purpose of restraining or preventing the breach or it may refuse the application. The decision is always a matter solely for the Court in its absolute discretion in the circumstances of any case. Nevertheless, the Court is unlikely to grant an interdict unless all the following criteria are satisfied:

• that in deciding that it was necessary or expedient to apply for an interdict, the planning authority took account of all those considerations which appear to be relevant;
• that there is clear evidence that a breach of planning control has already occurred, or is likely to occur, on land in the planning authority's area; and
• that an interdict would provide a commensurate remedy in the circumstances of the particular case.

6. Even if all the above criteria are satisfied, the Court may decide that the circumstances of the case do not justify granting an interdict. If an interdict is granted, the Court may decide to suspend its effect until a specified later date.