Trim v North Dorset District Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date20 December 2010
Neutral Citation[2010] EWCA Civ 1446
Date20 December 2010
Docket NumberCase No: A2/2010/1094

[2010] EWCA Civ 1446




HHJ Denyer Qc

Before : Lord Justice Laws

Lord Justice Carnwat


Lord Justice Patten

Case No: A2/2010/1094


North Dorset District Council of Nordon

Peter Wadsley & Sarah Knapton (instructed by Veale Wasbrough Vizards) for the Appellant

James Findlay QC & Emma Dring (instructed by Battens Solicitors) for the Respondent

Hearing date : Thursday 4th November, 2010



This is an appeal from the judgment of HH Judge Denyer QC, refusing the council's application to strike out the statement of case as an abuse of process.

Factual background


The following is a brief summary of what a planning inspector later described as an “extensive and somewhat complex” planning history.


Mr Trim is the owner of land at Church Farm, West Stour, Dorset. The building in which he lives was built in breach of planning control. The service of an enforcement notice in 1996 led eventually on 29th May 1997 to the grant on appeal of retrospective planning permission for the retention of the dwelling, subject to conditions, including condition 2 which is now in issue:

“The house shall be occupied only by persons who are working at or enjoying the facilities of the proposed stables and cross-country course at Church Farm, West Stour, Gillingham, Dorset, or a widow or widower of such a person and any resident dependants.”


There was a related section 106 agreement which required the building of the stables and the cross-country course within specified periods. The purpose of the condition and the agreement was to secure that the house was only used in connection with the equestrian facilities, which provided the only justification for permitting a house in the countryside.


Mr Trim accepts, indeed asserts, that he has never complied with that condition. On 4 th December 2007, he applied for a certificate of lawful use under s.191 of the Town and Country Planning Act 1990, on the grounds that condition 2 had not been complied with for the preceding 10 years. On 31 st January 2008 the Council refused the application. On 1 st May 2008, it issued a “breach of condition notice” under s.187 of the Act, which required that Mr Trim:

“Permanently cease occupation of the house other than by persons(s) who are not [sic] working at or enjoying the facilities of the stables and cross-country course at Church Farm, West Stour, Gillingham, Dorset or a widow or widower of such person(s), and any resident dependants.”

(It is common ground that there is a surplus “not” in the second line. We were not invited by either side to rule on the implications of this mistake. Mr Trim reserves his position on the point in the event of a prosecution.)


In the meantime, Mr Trim had appealed against the refusal of a certificate of lawful use. A planning inspector dismissed the appeal on 6th January 2009. He found that Mr Trim had not been in breach of condition for the ten years preceding the Respondent's certificate of lawful use application. This was principally because in his view the condition could not come into effect until the completion of the equestrian facilities to which it was linked, which he held not to have occurred by 6th December 1997, that is 10 years before the application (decision paras 35, 41). This decision was not subject to further challenge in the High Court.


This decision did not necessarily resolve the issue raised by the breach of condition notice, issued on 1st May 2008. There remained the possibility of Mr Trim being able to show that the relevant facilities had been completed in the intervening period, so that (at least on the approach adopted by the inspector) time would have begun to run from that point.


The present proceedings were commenced on 21 st December 2009 and served on 14 th January 2010. Mr Trim claims a declaration that :

i) the breach of condition notice served on him on 1st May 2008 was served more than 10 years after the breach alleged;

ii) consequently the failure to comply with the condition as at the date of service of the notice was lawful because no enforcement action could thereafter be taken, the time for such action having expired.


The Council applied to strike out the claim as an abuse of process, on the grounds that the appropriate means of challenge to the validity of the notice was by way of judicial review, and not by private law proceedings. On 20th April 2010, HH Judge Denyer QC held that the issue of proceedings for a declaration did not constitute an abuse of the court's process and dismissed the Appellant's application. He granted the Council permission to appeal.

Legal principles

Planning law


The underlying dispute is one of planning law. It concerns the interaction of four concepts first introduced by the Planning and Compensation Act 1991, by way of amendment of the Town and Country Planning Act 1990, following the recommendations of my own 1989 report to the Secretary of State, “Enforcing Planning Control”. They are:

i) The breach of condition notice

ii) The general “ten-year” limitation period for enforcement action.

iii) The principle that a use which is immune from enforcement action is “lawful”.

iv) The right to apply for a certificate of lawful use.


The proposal for a breach of condition notice was derived from a proposal in 1985 by the National Development Control Forum, to provide a more effective means of securing prompt enforcement of conditions. As I noted in my report (p 82), the Forum had suggested that no right of appeal was required because “an opportunity already exists for conditions to be challenged”. (I understand this to have been a reference to the procedure now in section 73.) I commented that the issues raised by a prosecution for breach of such a notice would be “relatively clear-cut since the developer would implicitly have accepted the conditions by implementing the permission” (ibid para 8.2). The procedure for Certificates of Lawful Use was another recommendation of my report. The purpose was to ensure that:

“… [as] a corollary of a stronger system of enforcement… land-owners should have a reasonably accessible means of establishing what can be done lawfully with their property” (p 80 para 7.2)


Under the 1990 Act as amended, a breach of condition notice may be served where planning permission has been granted subject to conditions and any of the conditions is not complied with (s 187A(2)). The notice may be served on the person carrying out the development or the person having control of the land (“the person responsible”). It must specify the steps to be taken, or activities required to cease, in order to comply with the conditions. If the notice is not complied with in the time allowed, the person responsible is guilty of an offence (s 187A(9)). The offence may be charged by reference to a day or a longer period, and there may be subsequent charges for continued failure to comply following a first offence (s 187A(10)).


There are time-limits for the taking of “enforcement action” in respect of a breach of planning control, including failure to comply with a condition subject to which permission has been granted (s 171A(1)). “Enforcement action” means the issue of an enforcement notice or the service of a breach of condition notice (s 171A(2). The general time-limit, which both parties treat as applicable in the present case, is the end of ten years “beginning with the date of the breach” (“the 10-year rule) (s 171B(3)). This period may be in effect extended by a further four years, to enable an authority which has “taken or purported to take” enforcement action to take further enforcement action in respect of the same breach (s 171B(4)(b)). (One effect of the latter provision is that, if the first enforcement action is set aside on appeal or by the court because of some legal defect, the authority may have a second chance to get it right.)


I should mention one point which is not in issue between the parties, in case it arises in another case. This concerns the application of the 10-year rule to breach of an occupancy condition such as in this case. Arguably, a distinction could be drawn between such a contravention and unauthorised development by a material change of use. The latter is a single event occurring at the time of the change. The 10-year period clearly runs from that date as “the date of breach”. The former does not involve a single event of that kind. Arguably, there is fresh breach on each day on which the offending occupation continues. On that view, the 10-year period would start again each day, and in effect there would be no time-limit for enforcement.


It seems however to be the accepted view, and is not in issue before us, that in such a case also the ten year period runs from the date when the offending use began, provided that there has been a continuing contravention since then (see Nicholson v Secretary of State [1998] JPL 553, 560, per Robin Purchas QC as a Deputy High Court judge, followed by Sullivan J in North Devon District Council v First Secretary of State & Stokes [2004] EWHC 578 (Admin)). This view is supported by Government guidance, which draws no distinction between unlawful development by a material change of use and breach of an occupancy condition (see Circular 10/97 Annex 2 paragraph 2.4). As we have heard no argument, I express no view as to the correctness of the accepted approach, but simply reserve my position in case it should arise in a...

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