Basingstoke and Deane Borough Council v Secretary of State for Communities and Local Government
Jurisdiction | England & Wales |
Judge | MR JUSTICE COLLINS |
Judgment Date | 22 April 2009 |
Neutral Citation | [2009] EWHC 1012 (Admin) |
Docket Number | CO/6953/2008 |
Court | Queen's Bench Division (Administrative Court) |
Date | 22 April 2009 |
[2009] EWHC 1012 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr Justice Collins
CO/6953/2008
Johanna Boyd (instructed by Matthew Arnold & Baldwin LLP) appeared on behalf of the Claimant
Rupert Warren (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
Robert Fookes (instructed by Edwin Coe LLP) appeared on behalf of the Interested Party
(Approved by the court)
: This is a claim, pursuant to Section 288 of the Town and Country Planning Act 1990, seeking to quash the grant by an inspector of a lawful development certificate in relation to the use of premises at 4 Hoddington Farm Cottages, near Basingstoke, as a dwellinghouse, but not limited to a dwelling occupied by an agricultural worker.
It was asserted that there was a condition imposed upon the original planning permission, which limited the use of the property in question to occupation by an agricultural worker and that that condition had been breached. It was further contended by the claimant, the local authority, that there had been no continuous breach of that condition over a period of 10 years. Therefore, it was decided by the authority that a certificate would not be granted, but the Inspector disagreed and granted it. That is the background.
Let me come to more detail. This was a case in which there was no issue of fact; the facts were all agreed. The only question was what was the proper result, in law, of the agreed facts. It was the contention of the claimant authority that the certificate must be refused. The interested party, the applicant for the certificate, contended the contrary. In due course, the Inspector sided with the applicant.
There were in fact two applications for certificates, but the Inspector granted the certificate based upon the second. There were two arguments raised. One was that the condition originally imposed was not one which was valid as a planning condition. Therefore, to disregard it would not constitute a breach which could be enforced against. Thus, there was no bar to the grant of a certificate. Secondly, it was contended that if that was wrong, and there was a valid planning condition imposed, there had been a continuous breach over the period of 10 years, so enforcement was no longer possible. Those were the two issues.
The planning permission was originally granted as long ago as 1950. The copy which has been obtained is not as clear as it might be because of its antiquity, but the planning permission was for the erection of a pair of agricultural workers' cottages at the farm. There was a condition that they be occupied only by persons engaged in an agricultural occupation, as defined in paragraph 7 of Circular 62. The reasons for the decision to impose the condition were stated to be “in order to comply with the provisions of the scheme outlined in Ministry of Town and Country Planning Circular No 62”.
That circular related to the development charge on houses for members of the agricultural population. It resulted from a decision that a development charge, which was then payable on the erection of houses, would not be levied on dwellings built for agricultural workers. What lay behind that was a desire by the then Government to encourage agriculture, and farming activities, and thus to encourage the provision for agricultural workers of somewhere where they could live.
The relevant paragraphs of the Circular are as follows:
“2. It is intended that the erection or enlargement of such houses [houses for members of the agricultural population] shall be free of development charge for so long as the houses are used by members of the agricultural population, but if they are used for other purposes, for example as weekend cottages, charge shall become payable.
3. This arrangement will apply to three types of case…”
The relevant one is the third which is:
“(c) Where planning permission is given subject to a condition that the house shall be occupied by members of the agricultural population as defined in paragraph 7 below.”
That definition imported the definition in section 119(1) of the Town and Country Planning Act 1947. It is not necessary for me to detail that.
I shall come back to paragraph 5, but paragraph 6 provided, so far as material:
“6. The success of this scheme depends on the co-operation of local planning authorities and other local authorities with delegated powers. The Minister is sure that in the interests of agriculture this co-operation will be willingly given. Local authorities are therefore asked, when an application is received for planning permission to build or enlarge a house for persons covered by the definition of 'agricultural population', and the applicant indicates that he wishes to claim relief from development charge, first to ascertain whether any subsidy or grant is payable… If it is not [which was the position in this case], they should attach to the planning permission a condition that the building must be occupied by members of the agricultural population as defined in paragraph 7. The Minister wishes it to be clear, however, that if a request for the attaching of such a condition is not made by the applicant, the local authority need not take any action to remedy the omission. It is in the applicant's interest that the condition should be imposed, and while the Minister is anxious that the local authorities should be as helpful as possible, the applicant cannot expect them to relieve him of responsibility for his own interests.”
It is thus clear that the condition was imposed at the request of the then applicant and for the purpose of avoiding the payment of development charge which would otherwise have been payable on the construction of these dwellings. However, as Miss Boyd points out, the Circular contains, in paragraphs 5 and 8, an indication that enforcement action should be taken if the condition is breached. Paragraphs 5 and 8 read:
“5. In the last class of case, however, the Board will make a nil determination when the house is built. If the house subsequently becomes occupied by persons not covered by the condition, a new planning permission will be necessary to avoid the serving of an enforcement notice, and a development charge would be calculated on that permission.
…
8. Local authorities should not—unless the Minister so directs—serve an enforcement notice merely because the tenant changes his occupation so as to come outside the definition of 'agricultural population', so long as the owner appears to have an honest intention to re-let as soon as possible to a tenant who will be within the definition.”
Thus, submits Miss Boyd, it is apparent that the Circular regarded the condition as one which could properly be imposed for planning purposes and so could, if breached, attract enforcement action. The question that arises in this case is whether that is correct, or was correct, as a matter of law. The Inspector's decision indicates that he, at least, took the view that it was not.
It is not in issue that the law requires that any condition which is imposed should be one which is imposed for a proper planning purpose. If it is not, then the condition is not one which can be enforced through the procedure applicable under the relevant sections of the Act, now sections 171A, 171B and 173, that is to say enforcement action within the terms of the Act. If enforcement action is taken, failure to comply is an offence.
The House of Lords decided in Fawcett Properties v Buckingham County Council [1960] 3 All ER 503 that a condition such as was imposed in this case, that is to say a condition which limits the use that could be made by individuals of a dwellinghouse, is one which is capable of being a proper planning condition. In the Fawcett case, which involved farm workers' cottages, the condition was that the occupation should be limited to persons whose employment, or latest employment, is, or was, employment in agriculture, as defined in section 119(1) of the Town and Country Planning Act 1947. So to that extent, although it went further, the details of which are not material, it was very similar to the condition imposed in this case. But in the Fawcett case the reason given for the condition being imposed was because the Council would not be prepared to permit the erection of dwellinghouses on the site unconnected with the use of the adjoining land for agricultural or similar purposes. Thus, there was a clear planning purpose, which was stated, on the face of the grant of permission, for the imposition of that particular condition. The House of Lords, following the reasoning of the Court of Appeal, accepted that that was an entirely appropriate and proper form of planning condition.
But the reasons why the particular condition was imposed are of considerable importance. That that is an approach which is appropriate was established in the very early days of the planning control, commenced by the 1947 Act: Crisp from the Fens Limited v Rutland County Council [1950] 1 P&CR 48. That case concerned a condition and an argument that the condition was one which was bad. The facts do not matter; I cite it merely for some observations of Bucknill LJ at page 54 of the report, where he said this:
“But the main reason for my conclusion is to be found in those given by the county council themselves for granting the...
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