Avon Estates Ltd v Welsh Ministers and Another

Hearing dates: 11 March 2011

Introduction

1. This appeal raises a novel point of law about the status and effect of conditions attached to a planning permission granted for a limited period, once that limited period has expired. Of course, a failure to remove the permitted building or to cease the permitted use after that specified period will normally be vulnerable to enforcement action under Part VII of the Town and Country Planning Act 1990, but what is the position if the planning authority does not take such action during the years in which it could, so that the permitted development becomes immune from enforcement action by virtue of section 171 B of that Act (“the 1990 Act”)? Can other restrictive conditions on the planning permission, such as an occupancy condition, still be enforced?

2. It must be borne in mind that planning permissions granted for a limited period, though recognized in section 72 (1)(b) and section 72 (2) of the 1990 Act, are unusual, if not rare. The Departmental Circular 11/95 on the Use of Conditions in Planning Permissions warned (as did its predecessor, Circular 1/85) against the granting of what it called “Temporary Permissions”, except in very limited circumstances. It is perhaps because such permissions are unusual creatures that the precise point of law now in issue does not seem to have been determined in previous authority.

The Facts

3. The land in question lies close to the Welsh coast and is within an area of great landscape value. Between the years 1964 and 1973 a total of four planning permissions were granted for “the erection of holiday bungalows” or in one case the erection of “semi-detached chalets”. In each case, there was a condition stating that:

“The permission hereby authorised shall expire and the site be restored to its former use on or before …”

a stated date. That date varied, being 31 July 1985 in two of the permissions and 31 July 1995 in the other two. Nothing turns on the difference in the specified dates.

4. Each permission then contained a condition requiring the proposed bungalows to be maintained to the satisfaction of the planning authority “throughout this period”. Then in each case there was a condition limiting occupancy to only part of the year. Thus the 1964 permission stated as its third condition:

“The holiday bungalows shall be occupied only during the period 1 ^st March to 31 ^st October”.

The same wording appeared in the second permission, dated 17 May 1965, while the other two permissions contained similar wording but referring to a somewhat longer part of the year. Nothing turns on those differences.

5. In fact, the bungalows remained in existence long after the date specified for the expiry of the permissions. No enforcement action was taken to secure their removal and the restoration of the site to its former use, and at a public inquiry in September 2009 it was agreed between the appellant and the local planning authority that the bungalows, of which there were by now 42 in number, were immune from enforcement action. It was also agreed that they had been occupied seasonally for more than four years but also that they had not been occupied outside the periods in the year referred to in the permissions.

6. In 2008 the appellant sought a certificate of lawfulness of existing use under section 191 (1) of the 1990 Act. The use described in the application was “use of buildings as 42 dwelling houses”. Before any decision had been made on that application, a further application was submitted, this time under section 192 (1), for a certificate of lawfulness of the proposed use of one of the bungalows “as a dwelling house”, and reference was made to Class C3 of the Use Classes Order 1987 (use as a single dwelling house (whether or not as a sole or main residence)). That building was, in effect, chosen as a test case for a section 192 certificate.

7. When no decision was made on either application, the appellant (the owner of the land) appealed. The two appeals were determined by an inspector appointed by the Welsh Ministers, the First Respondents. A number of matters were raised in the course of the appeals which are no longer relevant. Although the whole site was known as Gilfach Holiday Village, the inspector ruled that each bungalow was individually and separately occupied and was physically and functionally separate from each other and thus each was a separate planning unit. He went on to find, referring to the decision in Gravesham Borough Council v Secretary of State for the Environment (1982) 47 P and C.R. 142, that each bungalow constituted a dwelling house within Class C3 of the Use Classes Order. However, he also concluded that, though the “temporary conditions” on the planning permissions had become spent over 14 years earlier, the seasonal use condition in each permission had not been breached and so those conditions “remain extant”: para. 21. Thus, while he allowed the appeal in respect of the certificate of lawful existing use, the certificate he granted for the 42 buildings for use as dwelling houses was “subject to the conditions imposed in those permissions [i.e. the four permissions between 1964 and 1974], with the exception of those conditions requiring each permission to expire and the site to be restored to its former use on or before a specified date”.

8. Taken strictly, that certificate would seem to leave in being not only the seasonal occupancy conditions but also those requiring the bungalows to be maintained to the satisfaction of the local planning authority throughout the periods specified, but no-one suggests that those latter conditions still have any effect. As for the appeal in respect of the certificate of proposed lawful use, the inspector noted that the proposed use made no reference to the restriction contained in the seasonal condition and so he dismissed that appeal. In essence, that decision was based on the same proposition which guided his decision on the first appeal, namely that the seasonal conditions in the planning permissions were still “extant”.

9. The appellant challenged those decisions under section 288 of the 1990 Act, but was not successful. Beatson J. held that a permission granted for a limited period, to use the statutory words in section 72 (2), did not “cease to exist” after the expiry of that period:

“What has expired is the time within which the use should have ceased and the restoration should have occurred”. (para. 42).

Only that breach of condition had acquired immunity from enforcement action. The judge noted that the 1990 Act did not use the word “expire” and that there was no exception in section 75 in respect of a planning permission granted for a limited period. (That is the provision which states in sub-section (1) that a grant of planning permission

“shall (except in so far as the permission otherwise provides) enure for the benefit of the land and of all persons for the time being interested in it.”)

10. Looking at the wording of these particular permissions, the judge noted that the occupancy conditions (as he termed the seasonal use conditions) did not refer to the period referred to in the time limit conditions and so he concluded that the seasonal restrictions were intended to apply after the end of that period. He contrasted the wording of those conditions with the wording used in the maintenance conditions. For all those reasons he found that the seasonal use conditions were still effective and that the inspector had been right on this issue.

11. The judge also dealt with whether the applicant was entitled to a certificate of lawful use which went beyond the use which had actually taken place “in accordance with the seasonal occupancy conditions”. On this, he concluded that there was no such entitlement, relying on a passage in Circular 10/97, Annex 8, dealing with such certificates. Paragraph 8.17 therein, to the extent cited by the judge, reads:

“In all cases the description must be more than simply a title or label, if future interpretational problems are to be avoided. The LDC should therefore state the characteristics of the matter so as to define it unambiguously. This is particularly important for uses which do not fall within any “use class” (that is, a “sui generis” use). So for example a LDC for a caravan site might typically include the number and type or size of caravan found to be lawful at the application date and, where the use is seasonal, the calendar dates on which the use then took place” (original emphasis).

The Statutory Context

12. Certificates of lawfulness of an existing use or a proposed use of land are dealt with by sections 191 and 192 respectively of the 1990 Act. It is unnecessary to set out those provisions in full. It is sufficient to note that “lawful”, as applied to uses, operations or failures to comply with a condition on a planning permission, is so defined as to mean that it applies if the time for taking enforcement action has expired: section 191(2) and (3). So the issue of enforceability (or lack of it) is at the heart of the concept. That in turn takes one to the issue of whether the seasonal use condition on each of those permissions was still extant and enforceable as...