England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL DISTRICT REGISTRY
HHJ DENYER QC
9BS91178

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/12/2010

LORD JUSTICE CARNWATH :

1. 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

2. The following is a brief summary of what a planning inspector later described as an "extensive and somewhat complex" planning history.
3. 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."

4. 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.
5. 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.)

6. 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.
7. 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.
8. 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.

9. 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

10. 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.

11. 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)

12. 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)).
13. 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.)
14. 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.
15. 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 future case at this level.
16. A person who wishes to establish that an existing use has become lawful, for example because the time-limit for enforcement action has expired, may apply to the planning authority for a "certificate of lawfulness of existing use" (s 191). Failure to comply with a condition is "lawful" for the purposes of the Act, if the time for enforcement action has expired, and it does not constitute a contravention of the requirements of any enforcement notice or breach of condition notice then in force (s 191(3)). The lawfulness of a use for which a certificate is in force shall be "conclusively presumed" (s 191(6)).
17. There is no right of appeal against a breach of condition notice as such. It is also common ground that the validity of a breach of condition notice may be challenged by way of an application for judicial review, or (as the Divisional Court has held in Dilieto v Ealing LBC [2000] QB 381) by way of defence to a prosecution. Alternatively, an application may be made to the authority for permission to retain the development without complying with the condition (s 73).
18. It is apparent from this summary, first, that service of a breach of condition notice has important legal consequences:

i) It creates a criminal offence. Breach of a planning condition is unlawful, but not in itself a criminal offence. The breach of condition notice provides the basis for criminal prosecution of the persons responsible, and for further prosecutions if the breach continues after conviction.

ii) It stops time running for some purposes. Service of the notice prevents the contravention thereafter becoming "lawful" by lapse of the time (s 191(3)). It thus precludes the possibility of an application for a certificate of lawful existing use, even, it seems, by a subsequent purchaser, whether or not he is himself a "person responsible" for compliance with the notice as such.

19. It is also apparent that the Act provides its own procedures for an owner to clarify or regularise the planning position. The lawfulness of the contravening use can be established by application for a certificate of lawful use, but only if it is made before taking enforcement action. Alternatively, application may be made to discharge the condition on its planning merits. Mr Trim took advantage of the first procedure but was unsuccessful; the second remains open to him.

The exclusivity principle

20. The main issue in the present case turns on the effect of the so-called exclusivity" principle, established in O'Reilly v Mackman [1983] 2 AC 237: that is, that in general it is an abuse of process to challenge the validity of public law actions or decisions other than by judicial review. Among the factors leading to this conclusion was the streamlined procedure by then available for judicial review, the requirement for leave, and the short time-limit (normally three months) for commencing proceedings. Lord Diplock said:

"The public interest in administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision." (p 281A, see also p 284E)

21. Subsequent experience has shown that a clear division between public and private law is often difficult to maintain, and the rigidity of the rule has had to be relaxed accordingly. Wade and Forsyth Administrative Law 10^th Ed p 570-81 gives a valuable description of this evolutionary process, leading to the emergence of "signs of liberality", and to some abatement of the "rigours of exclusivity" under the new Civil Procedure Rules. A particular area of difficulty was in relation to private law disputes involving public authorities, for example employment and contractual relations (ibid p572). In Roy v Kensington and Chelsea FPC [1992] 1 AC 624, the scope for relaxation of the rule was acknowledged by the House of Lords, when they accepted that private law rights could be enforced by civil action, even though they might involve a challenge to a public law decision or action (ibid p578).
22. De Smith's Judicial Review 6^th Ed para 3-097 contains a similar account, suggesting that a "new approach" is required following the replacement in 2002 of Order 53 by the new CPR 54:

"What matters under the CPR regime is not the mode of commencement of proceedings but whether the choice of procedure may have a material effect on the outcome."

Cases such as Clark v University of Lincolnshire [2000] 1 WLR 1988 (a case involving an alleged breach of contractual relationship with a public authority) are cited to support the proposition that the courts should avoid "sterile and expensive procedural disputes which may be of no practical significance to the outcome of the case" (para 3-103). There is a discussion to similar effect in the White Book (para 54.3.2: "Distinction between public and private law").

23. The problems described in those passages arose principally from cases in which private and public law principles overlapped (see De Smith para 3-102). I do not read them as seeking to undermine the principles that purely public acts should be challenged by judicial review, and that it is in the public interest that the legality of the formal acts of a public authority should be established without delay. The latter is confirmed by the retention in CPR54 of the requirement that an application to bring judicial review proceedings must be made promptly, and in any event within three months. This principle is not undermined by the fact that it is subject to the general power to extend time-limits (CPR3.1(2)(a)), the exercise of which is itself governed by well-established principles (see 2010 White Book para 3.1.2, 54.5.1).
24. Nor do I find in the textbooks support for the suggestion that the existence of factual disputes is a reason for an exception to the exclusivity principle. The need to resolve such disputes does not often arise, because of the nature of most judicial review proceedings. But, when it does arise, it does not create any particular conceptual or procedural problems. The permission stage gives the court full control of the proceedings. It may give any necessary directions for the attendance of witnesses and cross-examination (CPR8.6(2)-(3), not disapplied by CPR54.16: see White Book para 54.16.1-2, R (G) v Ealing LBC(No 2) [2002] EWHC 250 (Admin) para 20).
25. It is true that in Dilieto Sullivan J referred to the possible shortcomings of judicial review proceedings to resolve factual disputes. However, that was in a different context, in which he was comparing that procedure with the alternative of the magistrate's court. If, which I doubt, he was intending to imply that judicial review cannot effectively cater for such disputes where they arise, I would respectfully disagree.
26. The exclusivity principle is in my view directly applicable in the present case. The service of a breach of condition notice is a purely public law act. There is strong public interest in its validity, if in issue, being established promptly, both because of its significance to the planning of the area, and because it turns what was merely unlawful into criminal conduct. It is an archetypal example of the public action which Lord Diplock would have had in mind. It does not come within any other categories identified in Wade and Forsyth or De Smith as requiring a more flexible approach.
27. Mr Findlay QC sought help in the Pyx Granite v MHLG [1960] AC 260, in which one can find observations as to the impact of universal planning control under the 1947 Act (then relatively new) on the enjoyment of private property rights. That case of course remains important for the clear statement by Lord Simmonds of the "constitutional right" of access to the court. However, access to the courts is not here in issue; the question is which court, by what procedure, and when. Since that case was decided more than 20 years before O'Reilly v Mackman, it is not surprising that it offers no help on the issue of procedural exclusivity, or on the modern division between public and private law. Public action does not lose its "public" character merely because it involves, as most public action does, interference with private rights and freedoms. It is only where there is an overlap with private law principles (such as contract or tort), that procedural exclusivity may become difficult to maintain.
28. One well established exception to the exclusivity principle arose shortly after O'Reilly v Mackman. In Wandsworth LBC v Winder [1985] AC 461, it was held that public law issues could be raised by way of defence to legal proceedings initiated by the public authority itself. Again, the working out of this exception, and its application in more recent House of Lords decisions, is well described by Wade and Forsyth (see p 237-9). There is an apparent tension, at least in theory, between this exception and the exclusivity principle, with its leave requirement and strict time-limits. Someone who has failed to challenge a public law act within the normal time allowed for judicial review, or who has even been refused permission to bring such a challenge, may yet be able to raise it by way of defence outside the time-limit if the authority decides to initiate proceedings.
29. Dilieto is an illustration of the exception, as applied in the context of a prosecution for a breach of condition notice. That does not in my view assist Mr Findlay's argument on the facts of this case. It is true that, if the authority decide to prosecute, the defendant may be able to raise an issue as to the validity of the notice. In such proceedings, the authority will be able to rely on the breach of condition notice as providing an adequate foundation for the prosecution. The burden will then be on the defendant to raise any invalidity defence, and to establish the facts necessary to make it good.
30. On the other hand, the authority are under no duty to bring a prosecution. They may decide to rest on the effect of the breach of condition notice. They may properly take the view that the "blight" so created for the owner is sufficient sanction without the need for a criminal penalty. They may reasonably prefer to avoid the uncertainty of the factual disputes which may arise if the notice is challenged by way of defence to criminal proceedings. There is no obligation on the authority to give the owner a platform on which to challenge the validity of their action. They may rather see it as in the interests of the planning of their area for him to be encouraged towards the route of a section 73 application, which will bring the planning merits into play.

The judge's reasoning

31. The judge declined to hold that the proceedings were an abuse of process. I summarise the main points as I understand:

i) It was "understandable" that Mr Trim chose not to apply to discharge the condition, since that would involve "tacitly accepting" that the 10-year defence was no longer available (Para 12).

ii) The authority's failure to institute criminal proceedings left him in "something of a limbo", with the breach of condition notice "hanging over him", but with no mechanism to appeal against it (para 13).

iii) Subsequent cases had allowed a more flexible approach to the exclusivity principle, at least where it was clear that leave would have been granted (citing Trustees of Dennis Rye Pension Fund v Sheffield City Council [1997] All ER 747) (para 17).

iv) On the facts of this case, it would have been reasonable for Mr Trim to delay any judicial review proceedings while his appeal to the inspector remained undecided. Thus there was justification at least for delaying proceedings until February or March 2009. The question was therefore "whether at that time it would have been appropriate to pursue the judicial review remedy" (para 19).

v) On such an application, Mr Trim might have found it very difficult "simply on the time point" to persuade a judge to give him permission to proceed (para 21). Further, it is unusual for the Administrative Court to deal with "live witnesses on contested issues of fact"; the court is "simply not designed to function in that way", although it has power in certain circumstances to receive live evidence (para 22). In Dilieto itself, the court had cited the problems of using judicial review for "detailed examination of oral and written evidence", as one reason for rejecting the argument that validity issues could not be raised by way of defence to a prosecution (para 26).

vi) Accordingly, he could not state with confidence that the Administrative Court would have heard an application for judicial review, "precisely because" it would have required "an extensive fact-finding exercise". In those circumstances, striking-out the proceedings might result in the claimant being left without a remedy to challenge the notice (para 28).

vii) That would not constitute a threat to the proper functioning of local government. The fact that such proceedings were not time-limited was offset by the authority's own failure to prosecute the notice ("sauce for the goose is sauce for the gander"). It was unsatisfactory that the notice issued in May 2008 should "sit there hovering apparently indefinitely", without a mechanism to challenge it (para 29).

32. Mr Findlay QC's arguments in this court have been to similar effect. Mr. Trim, it is said, is left in limbo, unable to sell his house on a reasonable basis because of the uncertainty over the condition and subject to potential criminal sanction, if and when the council determines to take action. The current proceedings, issued only after attempts to explore other avenues of resolution were rejected by the Council, are his attempt to obtain resolution of the issue, one way or other. There has been no unreasonable delay; the planning appeal was not resolved until January 2009, it was followed by "the speedy threat of proceedings" linked to "genuine attempts to avoid litigation by correspondence".
33. He submits further that any new occupier of Church Farm (including any potential purchaser) would be subject both to the condition and to possible prosecution under the BCN. Such a person would, if the Council were correct, be unable to obtain a determination of the lawful conditions of their occupation simply because their predecessor had failed to initiate Judicial Review proceedings timeously. However, such a person could still rely upon the disputed issue as a defence were the Council to take enforcement action. A system which in such circumstances did not afford such a person an avenue of redress would be deficient.
34. Finally, he submits that, if necessary, we should allow the proceedings to continue, on the basis that there would have been a good case for time for judicial review being extended. He makes four points:

i) It was reasonable to wait for the decision on his appeal, as if he had won there would have been no need to challenge the breach of condition notice.

ii) Following the Inspector's decision he immediately alerted the Council to the possibility of proceedings, and thereafter sought to canvass alternative courses of action that would avoid expensive High Court litigation. It was reasonable for the Claimant to wait until it was clear that the Council would not take enforcement proceedings before issuing High Court proceedings.

iii) The Council has suffered no real detriment by reason of delay. The onus to establish the notice was issued out of time lies with Mr. Trim, so delay potentially harms not assists his case.

iv) The issues that will be determined would need to be determined in any event if the Council ever decides to enforce the condition, so that any delay and prejudice will have to be faced up at that time.

35. It will be apparent from the earlier discussion that I disagree respectfully with much of the judge's reasoning, and with Mr Findlay's submissions to like effect. They come down to three main points: that the court has a duty to offer Mr Trim a route out of the procedural "limbo" in which he finds himself; that an application for judicial review proceedings at this stage would risk failure either because of the inherent unsuitability of judicial review to decide issues of fact or because it would be outside the normal time-limit; alternatively, that they should be permitted to continue out of time because the delay was justified.
36. The first point is looking from the wrong side of the mirror. The 10-year rule is a concession to illegality, not a reward for endurance. The court owes no duty to assist the lawbreaker to bring himself within it. The Act provides its own procedure to legitimise the use, in advance of enforcement action. Once a breach of condition notice is served, the person responsible has a choice if he wishes to regularise his planning position. He may seek judicial review promptly to challenge the validity of the notice, or he may apply to the authority under section 73 to discharge the condition. If he does neither, he must accept the consequent uncertainty affecting his property. The "limbo" is entirely of his own making. Similarly any future purchaser of the property will buy in the knowledge that the planning position is uncertain, and that a section 73 application may be needed to regularise it.
37. The second point is open to similar objections. As I have explained, the existence of unresolved factual issues is not itself a reason for avoiding judicial review. The strict time-limits for judicial review reinforce the case for procedural exclusivity; they are not a reason for relaxing it.
38. Finally, I see no good reason to extend time. Even if, as the judge thought, Mr Trim was justified in waiting until the decision on the certificate of lawful use in January 2009, there is no convincing explanation of the delay of almost a year before the commencement of these proceedings in December. Threats of litigation do not satisfy the requirement to start proceedings promptly. In any event the Council had by 3^rd June 2009 left no doubt that it did not intend to withdraw the notice, and that it was likely to take the point that judicial review was out of time. The judge was wrong to see a parallel with Mr Trim's delay in their failure actively to pursue the notice. The council had no duty to prosecute, nor to assist Mr Trim to escape the consequences of his unlawful actions.
39. In my view, therefore, the judge was wrong to conclude that the proceedings did not involve an abuse of process. I would allow the appeal, and direct that the proceedings be struck out as an abuse of process.

LORD JUSTICE PATTEN :

40. I agree.

LORD JUSTICE LAWS :

41. I also agree.