COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE
MR JUSTICE BEATSON
CO/1646/2010,  EWHC 1759 (Admin)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE SMITH
SIR DAVID KEENE
| AVON ESTATES LTD
|- and -
CEREDIGION COUNTY COUNCIL
Jonathan MOFFETT (instructed by Treasury Solicitors) for the Welsh Ministers
Paul STINCHCOMBE (instructed by Ceredigion County Council)
Hearing dates: 11 March 2011
Crown Copyright ©
SIR DAVID KEENE:
"The permission hereby authorised shall expire and the site be restored to its former use on or before …"
a stated date. That date varied, being 31 July 1985 in two of the permissions and 31 July 1995 in the other two. Nothing turns on the difference in the specified dates.
"The holiday bungalows shall be occupied only during the period 1st March to 31st October".
The same wording appeared in the second permission, dated 17 May 1965, while the other two permissions contained similar wording but referring to a somewhat longer part of the year. Nothing turns on those differences.
"What has expired is the time within which the use should have ceased and the restoration should have occurred". (para. 42).
Only that breach of condition had acquired immunity from enforcement action. The judge noted that the 1990 Act did not use the word "expire" and that there was no exception in section 75 in respect of a planning permission granted for a limited period. (That is the provision which states in sub-section (1) that a grant of planning permission
"shall (except in so far as the permission otherwise provides) enure for the benefit of the land and of all persons for the time being interested in it.")
"In all cases the description must be more than simply a title or label, if future interpretational problems are to be avoided. The LDC should therefore state the characteristics of the matter so as to define it unambiguously. This is particularly important for uses which do not fall within any "use class" (that is, a "sui generis" use). So for example a LDC for a caravan site might typically include the number and type or size of caravan found to be lawful at the application date and, where the use is seasonal, the calendar dates on which the use then took place"(original emphasis).
The Statutory Context
"70(1) Where an application is made to a local planning authority for planning permission –
(a) subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or …"
Much litigation has taken place on what conditions may legitimately be imposed under this provision. Then section 72 (1) deal with two specific types of condition, one of which is relevant to this appeal:
"72(1) Without prejudice to the generality of section 70 (1), conditions may be imposed on the grant of planning permission under that section –
(b) For requiring the removal of any building or works authorised by the permission, or the discontinuance of any use of land so authorised, at the end of a specified period, and the carrying out of any works required for the reinstatement of land at the end of that period."
That type of condition is further referred to in the next subsection, section 72(2), as follows:
"72(2) A planning permission granted subject to such a condition as is mentioned in subsection (1) (b) is in this Act referred to as planning permission granted for a limited period."
"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."
But there are time limits on taking enforcement action, set by section 171 B:
"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) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.
(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."
"Notwithstanding the provisions of the Town and Country Planning (Use Classes) Order 1987 and the Town and Country Planning General Development Order 1988 (as amended), the site shall be used solely for storage of cars".
By the time the case reached the Court of Appeal, there was no dispute that the combined effect of the temporary permission and the use of the land by the port authority for port-related purposes was to render the site "operational land" for the purposes of the rights granted to port operators by the General Permitted Development Order 1995, the successor in this respect to the 1988 Order referred to in condition 2. So the effect of the temporary permission was far-reaching, and it was argued by the local planning authority that condition 2 was of continuing effect and so excluded those rights.
"Similarly, a limitation imposed in condition 2 applies only while rights are being exercised under the 1991 permission. When reliance is no longer placed on the express grant, the condition does not have the effect of excluding development rights under the GPDO.": page 8.
Lady Justice Smith: I agree
Lord Justice Rix: I also agree