R NORTH DEVON DISTRICT COUNCIL v The FIRST Secretary of State (FIRST DEFENDANT) and N C STOKES
| Jurisdiction | England & Wales |
| Judge | Mr Justice Sullivan,MR JUSTICE SULLIVAN |
| Judgment Date | 12 March 2004 |
| Neutral Citation | [2004] EWHC 578 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5611/2003 |
| Date | 12 March 2004 |
[2004] EWHC 578 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
MR JUSTICE SULLIVAN
CO/5611/2003
MR M EDWARDS (instructed by Legal Services Department, North Devon District Council, Barnstaple, Devon EX31 1EA) appeared on behalf of the CLAIMANT
MR J LITTON (instructed by Treasury Solicitors, London SW1H) appeared on behalf of the DEFENDANT
This is an application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash a decision of a person appointed by the first defendant allowing an appeal by the second defendant against the claimant council's refusal to grant a lawful development certificate ("LDC") under section 191(1)(c) of the Act in respect of 2 Seymour Bungalows, Sandy Lane, Woolacombe, Devon ("the property").
The appointed person's decision is contained in a decision letter dated 18th December 2003. In paragraph 2 he noted that there was no dispute about the factual background to the appeal. Seymour Bungalows were erected pursuant to a planning permission granted in 1971 for five holiday bungalows. The planning permission was subject to a number of conditions. Condition (e) provided that:
"The holiday bungalows shall only be occupied during the period from 15th March to 15th November in each year."
The council did not dispute that in breach of that condition the claimant had occupied the property continuously throughout the year, winter and summer, since October 1992. The application for an LDC was made on 22nd November 2002, just over ten years after the second defendant had began to occupy the property.
The relevant statutory provisions are as follows (so far as material). By section 191(1):
"If any person wishes to ascertain whether —
(a) any existing use of buildings or other land is lawful;
(b) any operations which have been carried out in, on, over or under land are lawful; or
(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,
he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.
…
(3) For the purposes of this Act any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful at any time if —
(a) the time for taking enforcement action in respect of the failure has then expired; and
(b) it does not constitute a contravention of any of the requirements of any enforcement notice or breach of condition notice then in force."
Section 171A(1):
"For the purposes of this Act —
(a) carrying out development without the required planning permission; or
(b) failing to comply with any condition or limitation subject to which planning permission has been granted,
constitutes a breach of planning control."
Section 171B(1):
"Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.
[(2) deals with the use of any building as a single dwelling house]
(3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach."
Although the council accepted that the second defendant had been in continuous occupation of the property for ten years since 1992, it refused to grant an LDC upon the basis that, while there had been a breach of condition (e) each winter, that breach had ceased on 15th March each year when occupation of the property was again permitted for the spring, summer and autumn months. The council contended that:
"Each winter period represented a separate breach of the condition so that a ten year period of continuous non-compliance could not accrue."
for the purposes of section 171B(3).
Before the appointed person the council relied upon certain _dicta_ of Mr Robin Purchas QC, sitting as a Deputy Queen's Bench judge, in Nicholson v Secretary of State for the Environment and Malvern District Council [1998] JPL 553. In that case a dwelling, The Meadows, was subject to an agricultural occupancy condition. Between 1984 and 1991 The Meadows was occupied by a non-agricultural worker in breach of the condition. Thereafter it remained unoccupied. An application for a LDC was made in 1995. The application was refused. An appeal against that decision was dismissed by the Secretary of State. The application to quash the Secretary of State's decision was dismissed. On page 560 Mr Purchas said this:
"Breach in this context is defined by section 171A(1)(b) as 'failing to comply with any condition …' In my judgment, to answer the question whether enforcement action can be taken against a failure to comply with a condition, the decision maker should:
(1) Identify the failure to comply;
(2) Look to see when as a matter of fact and degree that failure began; and
(3) Decide whether a period of ten years has since expired.
In this context a failure to comply with a condition is not to be confused with the continuation or abandonment of a planning use. Enforcement action against a breach of condition is concerned with the particular breach in question. If non-compliance ceases by discontinuance of the offending activity or otherwise, that breach is at an end. The condition, however, will in an appropriate case continue in force. If there is subsequently renewed non-compliance, that would, in my judgment, be a fresh breach. The period for enforcement against that breach under section 171B(3) will begin to run again. It is not permissible to add the period of one breach to that of a subsequent breach, if as a matter of fact and degree they are separate breaches."
On page 561 he said:
"I do not have to determine whether an enforcement notice can be issued in respect of a breach of planning control that has already been remedied. However, I consider that there is force in Mr Bedford's submissions [to the effect that a notice could not be issued] in that respect. Certainly there is nothing in the provisions of sections 171 and 173 that would militate against the construction which I have placed on section 191. Equally, that construction is consistent with section 187A, which, as both parties accept, restricts a breach of condition notice to existing non-compliance. Overall, therefore, it does not seem to me that consideration of the provisions of Part VII as a whole compels a different construction to be adopted nor, in my judgment, is there any consequent illogically or absurdity. Indeed, the construction for which Mr Dagg [counsel for the appellant] contends, by which a breach of condition for less than ten years could support the issue of a certificate so long as a period of ten years expired before the application was made, would seem to me to lead to surprising consequences. For example, as he accepted in argument, the breach of an occupancy condition for, say, six months followed by compliance would still mean that after ten years a certificate could be issued and the condition would thereafter be effectively unenforceable. That conclusion reinforces to my mind the good sense of what I regard as the proper construction of section 191.
Turning then to the decision letter, the First Respondent had concluded that the breach ceased in 1991. It followed that ten years had not expired in respect of that breach. Equally, there was no non-compliance to satisfy the requirement of lawfulness at the time of the application. In my judgment, the First Respondent's decision that the certificate should be refused on those grounds is not to be faulted."
On behalf of the council Mr Edwards relied, in particular, upon the words:
"If non-compliance ceases by discontinuance of the offending activity or otherwise, that breach is at an end. The condition, however, will in an appropriate case continue in force. If there is subsequent renewed non-compliance, that would, in my judgment, be a fresh breach. The period for enforcement against that breach under section 171B(3) will begin to run again."
He submits that the second defendant's non-compliance with condition (e) each winter ceased on 15th March each spring, bringing that breach to an end. The following winter there would have been a fresh breach and the period for enforcing against that breach under section 171B(3) would begin to run again. In practical terms the effect of the council's submission is, therefore, that breach of a "seasonal condition", such as condition (e), can never become immune from enforcement notice action, and can, therefore, never become lawful for the purposes of section 191 no matter how many years the condition may have been breached.
The appointed person rejected the council's submissions, saying that Nicholson and another case on which the council had relied, North Devon District Council v Rottenbury [1998} EG CS 72 could be distinguished. In paragraphs 6 and 7 of his decision letter he said in part:
"6. All the evidence, which the council accepted, indicated that the bungalow had been occupied continuously, winter and summer, for more than ten years. In these circumstances, as the appellants pointed...
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