Newbury District Council (Appellant/Applicant) The Secretary of State for the Environment (First Respondent) Sydney Charles Marsh (Second Respondent) Susan Angela Marsh (Third Respondent)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE HIRST,LORD JUSTICE ROSE |
| Judgment Date | 13 July 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J0713-7 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 July 1993 |
[1993] EWCA Civ J0713-7
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mr G. Moriarty QC Sitting as a Deputy High Court Judge of the Queen's Bench Division)
Before: Lord Justice Russell Lord Justice Hirst and Lord Justice Rose
MR J. STEEL QC (instructed by Messrs Sharpe Pritchard, London WC1) appeared on behalf of the Appellant
MR T. DAVEY (instructed by The Treasury Solicitor) appeared on behalf of the First Respondent
MR C. WHYBROW QC (instructed by Messrs Orchehill Chambers, Buckinghamshire) appeared on behalf of the Second and Third Respondents
This is an appeal from an Order of
Mr Gerald Moriarty QC sitting as a Deputy Judge of the Queens Bench Division who, on the 27th January 1993, dismissed the appeal of the Newbury District Council, the Local Planning Authority, which, pursuant to Section 289 of the Town and Country Planning Act 1990 had challenged the decision of the Secretary of State by his Inspector, in a decision letter dated 26th November 1991, allowing the appeal of the second and third respondents, Mr and Mrs Marsh, against an Enforcement Notice dated the 21st January 1991.
The facts fall within a small compass and can be shortly stated. On 30th July 1984, the appellant Planning Authority granted planning permission for the construction of a farm house to replace a temporary mobile home on a site known as Brewery Fields Farm, Tutts Clump, Bradfield, Reading. One of the conditions, subject to which permission was granted read as follows:
"The occupation of the dwelling should be limited to a person employed, or last employed, locally in agriculture as defined by Section 290 (1) of the Town & Country Planning Act 1971, or in forestry or a dependant of such a person residing with that person (but including a widow or widower of such a person)."
After construction of the house Mr and Mrs Marsh went into occupation on the 27th October 1986. Thereafter neither occupant, as was to be found at a local enquiry, fulfilled the requirements of the condition. The Planning Authority, however, took no steps to enforce the condition until, on the 21st January 1991, they served upon Mr and Mrs Marsh an Enforcement Notice, pursuant to the provisions of Section 175 of the Town & Country Planning Act 1990. The Notice alleged a breach of planning control by virtue of the occupation of the premises by a person not employed, or not last employed, locally in agriculture, repeating the terms of the condition. It required cessation of occupation otherwise than in accordance with the condition.
Mr and Mrs Marsh exercised their right of appeal and the Inspector at the local enquiry found against them in relation to their user of the premises. A breach of the condition was established to his satisfaction. However, he went on to find that a period in excess of 4 years had elapsed from the date of the breach of condition before the Enforcement Notice was served, and accordingly, he found that the Enforcement Notice was out of time, having regard to the provisions of Section 172(4) of the 1990 Act.
The relevant provision, Section 172(4), provides as follows:
"An Enforcement Notice which relates to a breach of planning control consisting in -
(a) the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land; or
(b) the failure to comply with any condition or limitation which relates to the carrying out of such operations and subject to which planning permission was granted for the development of that land; or
(c) the making without planning permission of a change of use of any building to use as a single dwelling house; or
(d) the failure to comply with the condition which prohibits or has the effect of preventing a change of use of a building to use as a single dwelling house,
may be issued only within the period of four years from the date of the breach".
The Inspector held that the condition as to occupation
"related" to the carrying out of the building operation and that it was a condition subject to which planning permission had been granted for development as provided by sub-paragraph (b) of the sub-section. That being so, the Enforcement Notice had to be served within the period of four years from the date when Mr and Mrs Marsh first occupied the property in breach of the condition. The Enforcement Notice was not served within that period and, accordingly, the Notice had to be quashed. Upon appeal to the High Court, that ruling was upheld by the Learned Deputy Judge as earlier indicated.
For the Appellant Planning Authority, Mr John Steel QC made a number of submissions to the effect that both the Inspector and the Learned Deputy Judge had failed properly to construe the terms of the Statute as contained in Section 172 (4). In a sentence Mr Steel submits that a condition relating to occupation of the premises does not "relate to the carrying out of [building] operations", and that only conditions which relate to the structure of the building, that is conditions that have something to do with the physical and visible characteristics of the building are protected by the time limit imposed by sub-section 4(b). Conditions which relate to occupation alone do not possess the characteristics which Parliament intended should be protected by the time limit, and, accordingly, occupation in breach of the condition remained liable to Enforcement Notice procedure irrespective of any 4 year time element. The type of condition, breach of which did enjoy immunity outside the four year period under the sub-section, was that which would be visible to the Planning Authority such as, for example, a condition providing for appropriate painting of the exterior of the building, its landscaping, or the provision of car parking. Breaches of such conditions would or should become readily discernible to the Planning Authority which would be at liberty to take enforcement action in respect of them. Parliament did not intend that breaches of conditions which were personal to occupants and not readily detectable, such as the occupations of occupants should enjoy protection. In the instant case, it could not be said that the failure of Mr and Mrs Marsh to engage in agriculture "related to the carrying out of the [building] operations" as Section 172(4)(b) provided.
Further, Mr Steel submitted the 1990 Act contains a discrete code to deal with the situation which prevails in the instant case.
Sections 191 and 192 provide for the issue of an Established Use Certificate in cases where a use of land without planning permission, or a use contrary to conditions or limitations of a planning permission, has subsisted since the end of 1963. These provisions, submitted Mr Steel, cannot rationally co-exist with a regime that involves a four year limitation period if the condition involving the house occupied by Mr and Mrs Marsh enjoys protection under Section 172(4)(b). An occupancy condition simpliciter does not "relate to" the carrying out of operational development. It relates to nothing more than the subsequent use and occupation of the building.
For the Secretary of State and for Mr and Mrs Marsh,
Mr Toby Davey and Mr Christopher Whybrow QC, respectively, made submissions which covered much common ground. Both contended that all conditions properly attached to a planning approval for building operations enjoy the protection of the four year limitation period. For my part I find this a proposition which it is impossible to accept. If it were to be so, the words in sub-paragraph (b) "which relates to the carrying out of such operations", would not be apposite. "Such operations" clearly relates back to "building ….. operations" to be found in sub-paragraph (a) of sub-section 4. If the intention was to create protection for all conditions which might be of an incorporeal nature —such as conditions of occupancy —then the phrase "which relates to the grant of planning permission" as opposed to "which relates to the carrying out of such operations" would be appropriate. Furthermore as was pointed out by Hirst L.J. in the course of argument the words immediately following i.e. "and subject to which planning permission was granted for the development of land" would have become redundant.
Finally, Counsel for the appellants submitted that if Parliament intended that conditions or limitations relating solely to occupation were to be caught by the provisions of sub-paragraph (b), the inclusion of sub-paragraph (d) is otiose.
For my part I have to say that I find the submissions made by Mr Steel as to the proper construction of Section 172 (4) compelling. However, I must consider the impact of Harvey v. Secretary of State for Wales and Another 88 LGR 253, a decision of this Court dealing with Section 87 of the Town and Country Planning Act 1971. That section for all purposes relevant to this appeal, was in identical terms to Section 172 (4) of the 1990 Act. The facts in Harvey's case I take from the head note of the Report. In 1974 a city council granted planning permission for the construction of a bungalow to replace an existing dwelling that was to be adversely affected by the building of a new road. The permission for the replacement bungalow was expressed as being conditional upon the existing bungalow being "demolished or used for the purpose of agriculture other...
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