Newbury District Council v Secretary of State for the Environment and Others
| Jurisdiction | England & Wales |
| Judgment Date | 13 July 1993 |
| Date | 13 July 1993 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Justice Russell, Lord Justice Hirst and Lord Justice Rose
Planning - enforcement notice - time limit - breach of condition re occupation of occupier
A grant of planning permission subject to a condition that the occupation of the house should be limited to a person employed, or last employed, locally in agriculture or forestry or a dependant residing with such person, was not subject to the provisions of section 172(4) of the Town and Country Planning Act 1990 which provided that enforcement notices relating to certain breaches of planning control could be issued only within the period of four years from the date of the breach.
A breach of a condition relating to occupation did not "relate to the carrying out of building … operations" within the meaning of section 172(4) and only conditions which related to the structure of the building, that is, that had something to do with the physical and visible characteristics of the building were protected by the time limit imposed for enforcement.
The Court of Appeal so held by a majority in allowing an appeal by Newbury District Council from an order of Mr Gerald Moriarty, QC, who, on January 27, 1993 had dismissed their appeal, which had challenged the decision of the Secretary of State for the Environment by his inspector on November 26, 1991 allowing the appeal of a Mr and Mrs Marsh against an enforcement notice dated January 21, 1991.
Section 172 of the 1990 Act provides: "(4) An enforcement notice which relates to a breach of planning control consisting in (a) the carrying out without planning permission of building … or other operations … on … 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 … may be issued only within the period of four years from the date of the breach."
Mr John Steel, QC, for Newbury District Council; Mr Toby Davey for the Secretary of State; Mr Christopher Whybrow, QC, for Mr and Mrs Marsh.
LORD JUSTICE RUSSELL said that Mr and Mrs Marsh went into occupation on October 27, 1986 and did not fulfil the requirements of the condition. The planning authority, however, took no steps to enforce the condition until January 21, 1991 when they served an enforcement notice.
Mr Steel had submitted that...
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