England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		12th March 2004

1. Mr Justice Sullivan: 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").
2. 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."

3. 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.
4. 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."

5. 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."

6. 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."

7. 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).

8. 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."

9. 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."

10. 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."

11. 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.
12. 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 out, the occupier could not have done anything to breach the condition to any greater extent. I therefore consider that the present case can be distinguished from Nicholson and North Devon, and that the principle established in those cases does not apply here.

7. For these reasons, I do not agree with the council's view that each winter that the bungalow remained unoccupied represented a separate breach of the condition which came to an end on 15th March every year, and that lawful use rights could never accrue in such circumstances. I have considered the provisions of section 171B of the amended 1990 Act, and the guidance in Circular 10/97, and can find nothing to suggest that the intention or effect of the legislation was that breaches of conditions imposing a seasonal requirement, as opposed to any other type of condition, could never become immune from enforcement action and thereby lawful once they had continued for ten years or more. Such conditions can only, by definition, be breached seasonally and, in my view, there is no fresh breach each winner any more than, with a permanent but seasonal use, there is a new material change of use of the land at the beginning of each season. It follows that I agree with the appellant's contention, following the Court of Appeal's judgment in Thurrock Borough Council v Secretary of State for the Environment Transport and the Regions and Holding [2002] JPL 1278, that enforcement action could have been taken at any time during the ten year period, including during the summer months when occupation was not in breach of the condition."

13. Mr Edwards pointed to the fact that Circular 11/95, which deals with the use of conditions in planning permissions, recommends the use of seasonal occupancy conditions in appropriate circumstances (see paragraphs 115 and 117) and a model form of such a condition is suggested: see condition 43 in Appendix A to the Circular.
14. Similar advice is to be found in Annexe C to PPG21 Tourism. Paragraphs 3 and 4 are as follows:

"3. Accordingly, it may be reasonable for the local planning authority to grant planning permission for holiday accommodation as an exception to these policies, with a condition specifying its use as holiday accommodation only. The justification for such a condition would be designed to ensure that less pressure is placed on local services than would be the case with permanent residential accommodation. For example, holiday makers would not expect to send their children to school locally or undergo routine hospital treatment; not would they expect shopping provision to equal that at their permanent home. They might also be prepared to countenance lesser standards of access, parking and private amenity space. A holiday occupancy condition would seem more appropriate in those circumstances than a seasonal occupancy condition. But authorities should continue to use seasonal occupancy conditions to prevent the permanent residential use of accommodation which by the character of its construction or design is unsuitable for continuous occupation especially in the winter months. Seasonal occupancy conditions may also be appropriate to protect the local environment, for example where the site is near a fragile habitat which requires peace and quiet to allow seasonal breeding or winter feeding to take place.

4. As with all conditions, an authority contemplating imposing a holiday occupancy condition should consider whether such a condition could be effectively enforced. Is it may be appropriate to ascertain from the developer how he proposes to restrict occupation to holiday use. The Department considers that authorities should normally be able to establish from the general lifestyles of the occupants of such accommodation (including their use of local services) whether it is being used exclusively by holiday makers. If the occupants were using the accommodation as a base from which to go out to work, or if their children were being educated locally, there would be a strong case for arguing that accommodation authorised for holiday occupation was being used for permanent residential accommodation. But enforcement of such conditions need not and should not require intrusive checks on occupants of holiday properties."

Mr Edwards submitted that if the inspector's approach was adopted, enforcement of conditions such as condition (e) would present real practical difficulties for local planning authorities such as the claimant council which has a considerable amount of holiday accommodation. They would be forced to conduct "intrusive checks" on the occupants of holiday properties contrary to the advice set out in Annexe C to PPG 21.

15. In introducing the council's case he said that its claim raised "a knotty question of planning law: can immunity ever be acquired in the case of a breach of a seasonal occupancy condition?" The question is fairly described as a "knotty" one, but I have no doubt that the answer to it is "yes, immunity can be acquired under section 171B(3)", for the reasons set out below. I have not found it necessary to summarise Mr Litton's submissions on behalf of the Secretary of State since in substance I agree with them and have, therefore, incorporated them into my own conclusions.

Conclusions

16. The council's submissions take the _dicta_ in Nicholson out of context. Judicial _dicta_ must be interpreted and applied in the context of the issue that was before the court. They should not be treated as though they were contained in an enactment of general application. Nicholson was not concerned with a seasonal occupancy condition. On any basis, on the facts of that case, the breach of the agricultural occupancy condition had not lasted for ten years and had ceased some four years before the application was made for the LDC.
17. The Rottenbury case was also concerned with breach of an agricultural occupancy condition. In that case the occupancy had been breached each summer when the property was used for short-term holiday lets, but the property had remained unoccupied between October and April each year. The Secretary of State's decision in that case was quashed on the basis that he had not properly considered whether those facts demonstrated a continuing breach of the agricultural occupancy condition "throughout each year and therefore for the necessary period of ten years". Again, the Court was dealing with a condition which was capable of being breached "throughout the year".
18. The starting point must be section 171B(3). The underlying purpose of this provision was explained in Secretary of State for the Environment v Holding and Thurrock Borough Council [2002] JPL 1278. Schiemann LJ, with whom Chadwick LJ, and Sir Christopher Staunton agreed, summarised in paragraph 15 the essential reasoning of the trial judge, Newman J, as follows:

"(iii) The rationale of the immunity is that throughout the relevant period of unlawful use the LPA, although having the opportunity to take enforcement action has failed to take any action consequently and is it would be unfair and/or could be regarded as unnecessary to permit enforcement."

19. In paragraph 25 Schiemann LJ said this:

"I agree with the judge as to the rationale of the immunity provisions. If there is a planning objection to the erection of a building the LPA must take enforcement action within four years of completion or lose the chance of taking such action. If there is a planning objection to a use which has been instituted without the grant of planning permission then again the LPA must take enforcement action within the appropriate time limit, ten years in the present case. If the new use continues throughout that period then the LPA have lost their chance. Their position is much the same as that of a landowner who lets the world regularly walk along a path over his hand. There comes a time when he has lost his right to object."

20. The ten year period was recommended by Robert Carnwath QC, as he then was, in his report on Enforcing Planning Control (HMSO 1989). He recommended the adoption of a rolling limitation period after which immunity from enforcement action would be conferred. In paragraph 3.11 of the report he said:

"As to the period for uses, I consider that 20 years is too long, since if could would tend to perpetuate the problems that exist today of obtaining evidence and analysing fluctuations in use over the period. I would propose a period of ten years (as suggested by the Association of Metropolitan Authorities). This has the merit of being long enough for any offending use of significance to have come to light, and short enough to enable evidence to be obtained without undue difficulty."

21. It is plain, therefore, that Parliament in enacting section 171B(3) intended that all breaches of planning control other than those mentioned in subsections (1) and (2) should be become immune from enforcement action after they had continued for ten years. Such a limitation period was felt to be fair to both parties, since it would give the local planning authority sufficient time to identify any significant planning problem arising as a result of the breach of planning control, whilst at the same time it would not place an undue evidential burden upon the landowner, who could rest assured that after ten years he would be free of the threat of enforcement action.
22. In many cases it will make little or no practical difference whether one refers to the breach of planning control having continued for ten years, or the breach of planning control having been continuous for ten years. Many conditions, such as agricultural occupancy conditions, are capable of being breached continuously throughout each year of the ten year period. However, that is not true of all conditions and section 171B(3) applies to all breaches of planning control save for those falling within subsections (1) and (2), where a four year period is prescribed.
23. In addition to seasonal conditions, such as condition (e) in the present case, conditions which prohibit a permitted use, for example, storage, parking or industrial, from taking place on Sundays, bank or public holidays, are relatively common place. Indeed, a model condition of that kind is to be found in paragraph 65 of appendix A to Circular 11/95.
24. If a factory subject to such a condition was operated on each and every Sunday for a period of ten years from March 1994-March 2004 it would be wholly unrealistic to suggest that there had been a fresh breach of conditions 52 times each year so that the ten year period for the purpose of section 171B(3) began to run afresh on each and every Sunday.
25. Applying the three-fold test in Nicholson above, if one, firstly, sought to identify the failure to comply, the answer would be: the factory is being used on Sundays. If one asked the second question, when as a matter of fact and degree did that failure begin: the answer would be "in March 1994", not "last Sunday". If one then turned to the third question and considered whether a period of ten years had expired, the answer would be "yes", the factory has been used on Sundays throughout the last ten years. I would accept that questions of fact and degree will inevitably arise, for example, where the factory in this example has not been used on each and every Sunday, but on a few, some, or most, Sundays during each year. Such questions of fact and degree do not arise in the present case, and they will have to be resolved on a case by case basis.
26. This illustration does, however, show that it is necessary to focus upon the particular condition and the particular matter that is alleged to constitute the breach of that condition. Circular 10/97 which deals with "enforcing planning control" says this in paragraph 8.36:

"Subsection (5) of section 193 provides that a LDC granted under section 191 or 192 shall not affect any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted, unless that matter is described in the certificate. This means that, in any case where a LDC is granted on the basis that there is an extant planning permission for the development, the fact that the LDC certifies that development to be lawful, does not mean that it can lawfully take place without complying in future with any conditions or limitations imposed on that grant of permission, except to any extent specifically described in the LDC. Unspecified existing or future breaches will not be covered by the LDC. For example, if the planning permission was subject to a number of conditions, a LDC granted in respect of a breach of one of them could not be regarded as legitimising breaches of any of the others. Moreover, it is possible to breach some individual conditions in different ways. It is the matter constituting the failure to comply with the condition, rather than the condition itself, which the LDC should, where appropriate, describe."

27. It is not appropriate to mechanically apply the _dicta_ in Nicholson to those cases where the condition does not "bite" on the use of the property continuously throughout the year, and where it is, therefore, not possible for there to be a breach of that condition for 365 days in the year.
28. A useful way of testing the position in relation to an application for an LDC is to ask: what would be the outcome if an enforcement notice was issued in relation to the use which is applied for and an appeal was made against that enforcement notice on ground (d) in section 174(1) "that at the date when the notice was issued no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters." The outcome should be the same in both cases: if the ground (d) appeal against the enforcement notice would succeed, so should the application for the LDC.
29. As I observed in R on the application of St Anselm Development Company Limited v First Secretary of State and Westminster City Council [2003] EWHC 1592 Admin, it is necessary to construe section 171B(3):

"... within the overall framework for enforcement action that is laid down by the Act. When considering the ten year limit on taking enforcement action, it is important to bear in mind that it is not sufficient for an enforcement notice to allege that the breach of planning control is a breach of condition in section 173(1)(b). A notice must also specify the matters which are said to constitute the breach: see subsections 173(1)(a) and (2). In addition, the notice must specify the steps which it requires to be taken. Although under-enforcement is permissible, those steps may not be more than is necessary to make any development comply with the conditions which are alleged to have been breached: see subsections 173(3) and (4)."

30. In the present case the matters constituting the breach would have been the occupation of the property between 16th November and 14th March each year. The steps required to be taken would have been to cease using the property between 16th November and 14th March each year. An enforcement notice could have been served alleging such a breach and containing such a requirement in each one of the ten years prior to the application for the LDC. In these circumstances it would subvert the underlying purpose of subsection 171B(3) to construe it in such a way as to conclude that there could be no immunity from enforcement action. It will be noted that the words "continuously for ten years" do not appear in the enactment itself. They are the result of judicial interpretation of the enactment, wholly appropriate where it is possible to have non-compliance continuously throughout the year, wholly inappropriate where non-compliance throughout the year is impossible. For practical purposes the test set out above may provide the answer in seasonal condition cases. Could the local planning authority have served an enforcement notice (a) alleging this breach of condition, and (b) requiring it to be remedied in this way, in each one of the previous ten years? If it could have done so, then there is no reason why it should not be told, in the words of Schiemann LJ, you have lost your chance to take enforcement action.
31. For the sake of completeness I should mention that Mr Edwards submitted that there might be practical difficulties in enforcing against a breach of a seasonal condition once the breach had ceased for that year. In this connection he referred to the terms of section 187A(2) which gives local planning authorities power to serve a breach of condition notice "if any of the conditions is not complied with." This provision was referred to in Nicholson. The learned deputy judge referred to the parties' agreement that such a notice could be served only where there is "existing non-compliance" and said that there was force in the submission that the power to serve an enforcement notice was similarly constrained (paragraph 9 above). The constraint is readily understandable in the case of a breach of condition notice. Service of such a notice is intended to be a short sharp remedy which may be used in a straightforward case as an alternative to issuing an enforcement notice. There is a clear contrast between the terms of section 187A(2) and section 172(1), which enables a local planning authority to issue an enforcement notice:

"... where it appears to them --

(a) that there has been a breach of planning control; and

(b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations." (my emphasis)

32. Thus in the present case the council in each of the ten years since the second defendant took up occupation in 1992 had power to issue an enforcement notice after 14th March in respect of the breach of condition over the previous winter, even though the second defendant's occupation had ceased to be in breach of the condition and would not be in breach again until the following November. In many cases where a breach of condition has ceased the local planning authority will conclude under paragraph (b) in 172(1) that it is not expedient to issue an enforcement notice, but there may well be breaches of condition, such as the breach of condition (e) in the present case, which the local planning authority considers are likely to recur next season unless enforcement action is taken. In such cases the local planning authority may well conclude that it is expedient to take enforcement action, even though the breach of condition has ceased for that particular season.
33. This issue was also raised in the Thurrock case. In paragraph 28 Schiemann LJ said:

"I accept Mr Corner's point that an enforcement notice can lawfully be issued notwithstanding that at the moment of issue the activity objected to is not going on, because it is the weekends or the factory's summer holiday for instance, the land would still properly be described as being used for the objectionable activity. However, I reject Mr Hockman's submission that enforcement action can be taken once the new activity which resulted in the material chance in the use of land has permanently ceased. I accept that there will be borderline cases when it is not clear whether the land is being used for the objectionable activity. These are matters of judgment for others."

34. The mere fact that an use in breach of condition has "permanently ceased" would not of itself deprive a local planning authority of the power to issue an enforcement notice under paragraph (a) in subsection (1). However, if the local planning authority was satisfied that the use had "permanently ceased", in the sense that it was most unlikely to recur then it is difficult to see how it could reasonably conclude that it would be expedient to issue an enforcement notice requiring compliance with the condition.
35. These observations are _obiter_ because on the facts of the present case there is no evidence whatsoever that the second defendant intended permanently to cease using the property in breach of condition (e) at the end of each winter. On the contrary, on the undisputed evidence, he has lived continuously in the property, winter and summer, for the whole of the ten year period. In those circumstances, on any common sense application of the terms of section 171B(3), his use of the property in this manner has become immune from enforcement action and he is thus entitled to a LDC.
36. Finally, whilst I acknowledge that this decision will make it somewhat more difficult for local planning authorities such as the council to enforce seasonal conditions, I do not accept that it will require them to make "intrusive checks" on the occupants of holiday properties contrary to the advice set out in annexe C. The ten year period provides a relatively leisurely timescale within which any significant planning problems as a result of occupation in breach of a seasonal condition should become evident to the local planning authority without requiring it to be over zealous.
37. For all of these reasons, I am satisfied that the decision of the appointed person was correct and this application must be dismissed.
38. I would conclude by expressing my thanks to counsel for their help in unravelling the knots in this knotty planning problem.
39. MR LITTON: I am grateful, my Lord. So far as costs are concerned, my Lord, I think there is no objection to the appellant paying the Secretary of State's costs of today. They have been agreed between the parties and the figure is therefore £5,265.
40. MR JUSTICE SULLIVAN: Sorry?
41. MR LITTON: £5,265.
42. MR JUSTICE SULLIVAN: Is that agreed, Mr Edwards?
43. MR EDWARDS: That is agreed, my Lord.
44. MR JUSTICE SULLIVAN: Yes. Very well. Then the application is dismissed. The claimant is to pay the first defendant's costs, those costs to be summarily assessed in the sum of £5,265.
45. MR EDWARDS: My Lord, could I raise one other matter very briefly? Permission to appeal. It is a very difficult and tricky question. I am not certain whether my client would wish to appeal, but it does raise a very difficult point for local planning authorities and I would seek permission to appeal to the Court of Appeal on this point. There has never been any guidance before from the courts.
46. MR JUSTICE SULLIVAN: Yes. Thank you very much, Mr Edwards. Whilst I agree the point is a tricky one, I do not think, with respect, you have a reasonable prospect of success on it. So I appreciate that counsel may think it's difficult, but on reflection I don't think it's quite as difficult as at first sight it might have appeared.