England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/01/2009

Miss Geraldine Andrews Q.C. :

1. This is an application under s.288 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash a decision ("the Decision") made on 30^th April 2008 by Mr Graham Dudley, an Inspector appointed by the First Defendant, dismissing the Claimant's appeal under section 78 of the 1990 Act against the Second Defendant's refusal to grant him planning permission under section 73A of that Act for the development of land carried out without complying with a condition subject to which a previous planning permission was granted.

2. On 12^th August 2008 the Second Defendant ("the Council") wrote to the Court stating that it was to be treated as adopting the submissions of the First Defendant and that it was not its intention to be separately represented.

BACKGROUND

3. On 30^th October 1986, the Council granted planning permission for the erection of 237 holiday bungalows at St Merryn Holiday Centre, St Merryn, Padstow, Cornwall, in accordance with the accompanying plan. Permission was granted subject to certain conditions, one of which ("Condition 3") was that "the development hereby permitted shall be used for holiday purposes only and shall not be used for permanent residential occupation". The Council's decision to grant planning permission, No. 6/86/1533, stated that the reason why this condition was imposed was the location of the site. An additional and related condition. Condition 4, which prevented the occupation of the bungalows during the months of January and February, was removed by a subsequent decision, No. 6/88/3386.

4. More than 10 years ago, a development was carried out on the land in respect of which planning permission was granted by decision No. 6/86/1533. That land forms part of St Merryn Holiday Village, which comprises a large number of bungalows and mobile homes with a caravan site at its eastern end. The coastline to the North and West is designated as an Area of Outstanding Natural Beauty, as is the Camel Estuary to the east.

5. The Claimant, Mr Morland, who represented himself, told the Court that only 97 bungalows of the 237 envisaged were built pursuant to the permission given by decision No. 6/86/1533. One of these was 150 Jasmine Way, which was and is the only bungalow that concerns him. Mr Morland's evidence was that over time, fresh planning applications were made and three new planning permissions were granted, with the result that 20 bungalows and 137 mobile homes now occupy the part of the site on which the remaining 140 bungalows were due to have been erected in accordance with the permission granted in decision No 6/86/1533.

6. What Mr Morland wants to achieve is that Condition 3 should no longer apply to 150 Jasmine Way. He perceives that the condition makes it very difficult, if not impossible, to sell the property. He also told the Court that one of his relatives would like to live there. It is noted in the Inspector's Decision that at the inquiry on the appeal, Mr Morland accepted that 150 Jasmine Way had been used as a residence for some 18 months.

7. Since 1986 a number of applications have been made to the Council to lift Condition 3. All but two of these applications have been refused, and numerous appeals have been lodged and dismissed over the years. In the mid 1980s and again in the early 1990s the Council served Enforcement Notices on a number of occupants of bungalows within the Holiday Village complex that were being used for permanent residential occupation. Appeals were lodged against these Notices and these gave rise to two Public Inquiries, the first leading to a decision dated 13^th July 1989 and the second leading to a decision dated 3^rd February 1993. In each case, the relevant Inspector appointed by the First Defendant decided that the restriction on use for permanent residential occupation was justified, and dismissed the appeals. In the later decision the Inspector stated "there is no doubt that St Merryn Holiday Village is an isolated countryside location which is, in policy terms, clearly inappropriate for permanent housing."

8. In January 1996, the Council adopted a moratorium in respect of action where Enforcement Notices had been served on occupiers of a number of bungalows to enforce the requirements of Condition 3. The Council decided that if a bungalow at St Merryn Holiday Village was being occupied on 8^th January 1996 as the only or main residence of a person, then legal proceedings for failure to comply with an Enforcement Notice served on that person (either then, or in the future) should be deferred during the period of that person's occupancy. This decision was taken on compassionate grounds.

THE APPLICATION UNDER S.73A

9. The relevant application for planning permission was made by Mr Morland on 28^th November 2006 and was received by the Council on the following day. In box 6 of the application form, which asks for a brief description of the proposed development, Mr Morland wrote "Lifting of Condition 3 on Planning Permission 86/1533". On 18^th January 2007 the application was refused. The reasons were stated in the notice of refusal as follows:

"1. The site is outside any defined settlement and the proposal, if permitted, would create an additional dwelling in the countryside contrary to the principles of sustainability embodied in Policies 1 & 26 of the Cornwall Structure Plan - 2004; Policy HSG4 of the District Local Plan – April 1999 and RPG 10 - September 2001 – The Regional Planning Guidance for the South West; PPS7 – August 2004 – The Countryside – Sustainable Development in rural areas; PPG13 March 2001 – Transport, which all direct residential development, other than dwellings essential for persons working in agriculture or any other essential rural activity to defined settlements with an appropriate level of facilities.

2. The proposal, if permitted, would set an undesirable precedent for the submission of other similar applications to lift the holiday occupancy condition on other bungalows at St Merryn Holiday village which would be difficult to resist and which, if approved, would aggravate the above planning objection".

10. Mr Morland appealed under s.78 of the 1990 Act. His appeal was dismissed on the grounds set out in the Inspector's Decision of 30^th April 2008.

The preliminary objection

11. The preamble to the Inspector's Decision states that "the application sought planning permission for the erection of 237 holiday bungalows without complying with a condition attached to planning permission Ref 6/86/1533 dated 30 October 1986."

12. Mr Morland strongly objects to this characterisation of his application. He says that he made no such application. Mr Morland does not own 237 bungalows, and in any event he says that 237 bungalows were not built under permission 6/86/1533. His application was confined to lifting Condition 3 so far as it applied to 150 Jasmine Way. He referred the Court to the fact that the Notice appealed from referred to his application as being in respect of land at 150 Jasmine Way, for "Lifting of Condition No 3 on Decision Number 86/1533 (holiday occupancy)". He also relied on correspondence between himself and the Council in December 2008 confirming that the application and the appeal related to 150 Jasmine Way only.

13. It is understandable that the Inspector's reformulation of the application in the terms I have quoted caused Mr Morland a degree of concern, particularly as he had made it clear in his application that he was only concerned with the position of one bungalow. However, Miss Busch on behalf of the First Defendant submitted that this preliminary objection rested on a misapprehension by Mr Morland as to what he was applying for.

14. Miss Busch pointed out that a person in Mr Morland's position who seeks to achieve a situation whereby Condition 3 no longer applies to his bungalow, can only do so in three ways. The first is to wait until an Enforcement Notice is served on him, and then challenge its legality. The second, which is a route that Mr Morland has also adopted, though so far without success, is to seek a Certificate of Lawful Use or Development under s.191 of the 1990 Act. The third is to apply under s.73A of the 1990 Act for planning permission without the condition to which the objection is taken, and for that permission to have retrospective effect. That is the route Mr Morland took in the present case, though Miss Busch submits that it was an inappropriate route given the nature of Mr Morland's legal arguments. When I asked him, Mr Morland was unable to identify any other legal route by which he could have made an application to the Council to lift Condition 3.

15. Section 73A provides:

"1. On an application made to a local planning authority, the planning permission which may be granted includes planning permission for development carried out before the date of the application.

2. Subsection (1) applies to development carried out…

(a) without planning permission…

(b) in accordance with planning permission granted for a limited period; or

(c) without complying with some condition subject to which planning permission was granted."

16. Miss Busch relies on the decision of Sullivan J. in Wilkinson v Rossendale Borough Council [2002] EWHC 1204 (Admin) and in particular on the observations made in paragraphs 71-74 of that judgment. In that passage, the Judge pointed out that it is not possible to make an application under s.73 or 73A of the 1990 Act for permission for the "removal" of a condition, since the removal of a condition does not amount to development. Although the applicant in that case had formulated her application in a similar manner to Mr Morland, seeking "removal" of the relevant condition imposed on an earlier planning permission, in reality it was an application for retrospective planning permission to continue the use of the land without compliance with that condition. The same is true of Mr Morland's application.

17. Miss Busch submitted that if the s.73A route is adopted, any change to the previous permission must mirror the original grant, since the grant pertains to the whole of the land that is the subject of planning permission, and not just a particular plot on it. As the original planning permission was granted in respect of the proposed development on the site in question, the application to "lift the condition" was correctly reformulated by the Inspector in the way that appears in the preamble to his Decision.

18. In my judgment, that submission is correct, and there is no foundation for Mr Morland's complaint that his application was treated or is being treated as something different in substance from what it really was. It is plain from reading the Decision as a whole that the Inspector was correctly treating Mr Morland's application as an application to remove Condition 3 from the development identified in planning permission 6/86/1533 including, specifically, 150 Jasmine Way.

The Claimant's substantive grounds for challenge to the Decision

19. I turn, therefore, to the matter that lies at the heart of Mr Morland's challenge to the Decision. It is common ground that this Court can only interfere with the Decision on public law grounds, namely, that the Inspector erred in law, that he took into account matters that he should not have taken into account or failed to take into account matters that he should, or that his conclusion was Wednesbury unreasonable. The essence of Mr Morland's case is that, applying the decision of the Court of Appeal in Handoll and Suddick v Warner Goodman and Streat (a firm) and Others (1995) 70 P&CR 627 to the facts of this case, Condition 3 is unenforceable. He contends that the Inspector was bound to take that matter into account in determining the appeal, and that it is apparent from his reasoning in paragraphs 17 and 18 of the Decision that he refused to do so. Accordingly, he submits that the Inspector erred in law.

20. In the Handoll case, the purchasers of some land on which a bungalow had been erected sought to find out, by way of a preliminary issue in an action against the vendor, whether a condition attached to planning permission was enforceable against them. In that case, planning permission had been granted subject to a condition of agricultural occupancy. However, the bungalow had been erected a short distance outside the area for which planning permission had been granted, and thus in breach of planning control. The Court of Appeal decided that if a development does not comply in a material respect, or to a material extent, with the permission granted, a condition attached to that permission cannot apply to the unauthorised development.

21. After a specific period of time passed, as a matter of law no procedure could be taken to enforce planning control, and this meant that the building could remain in existence. The current period for a dwelling house is four years, as laid down by Section 171B(1) of the Planning and Compensation Act 1991. This provides, so far as material:

"Where there has been a breach of planning control consisting in the carrying out without planning permission of building… operations .. on.. land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operation was substantially completed."

22. The planning authority in Handoll submitted that its inability to enforce the planning control because of the passage of time could not affect the occupancy and the condition attached to it. It relied on the decision of the Divisional Court in Kerrier District Council v Secretary of State for the Environment (1981) 41 P&CR 284, a case in which the building had been constructed on the approved site, but failed to comply with the permission granted because the basement did not have planning approval. That submission was rejected. The Court of Appeal overruled Kerrier, although they also indicated that, if it were necessary to do so, they would also distinguish that case on its facts.

23. The Court of Appeal relied on a line of earlier authorities (not cited in Kerrier) that applied the principle that a planning authority cannot succeed in an action for breach of condition unless the development to which it was attached by the planning permission has actually been carried out. The reasoning of the Court of Appeal was that if a development has been carried out other than in accordance with the planning permission granted, it is unauthorised and unlawful, and therefore the conditions attached to the permission can have no effect upon it. It would be open to the planning authority to serve an enforcement notice to prevent any use of the unauthorised development (not just a use which breached the condition). However once the time for enforcement had passed, the planning authority would be unable to enforce either the original permission or any conditions attached to it.

24. The fact that the planning authority cannot enforce the permission against a particular construction does not make the permission a nullity. If the unauthorised construction is demolished, the terms and conditions of the planning permission relating to the land will remain in force. Nobody can lawfully erect a new construction on the site to which the permission applies without complying with those terms (or making a successful application under s.73A) and if they do, the enforcement period starts afresh in respect of the unauthorised development. If someone does carry out a fresh development on the land in accordance with the permission, then the authority can enforce any conditions attached to that permission.

25. Thus, to take a simple example, if a planning authority grants permission for a bungalow to be built on a plot of land, on condition that it is used for holiday purposes only, and the developer builds a house on the land instead, the remedy of the authority is to seek the enforcement of its planning controls. Even in the first four years it cannot enforce the occupancy condition because the house was built other than in accordance with the permission granted. Its remedy is to serve an enforcement notice. If it fails to do so within four years, the planning authority cannot require the house to be demolished. However, if the house burns down, the only authorised development on the site would be a bungalow built in accordance with the permission already granted. The authority would be entitled to enforce the occupancy condition in respect of a replacement bungalow.

26. In this case, considerably more than four years has elapsed since the holiday bungalows were built on the St Merryn site. Once that period elapsed, no action (whether criminal or civil) could be taken by the Council to enforce planning controls imposed in respect of any bungalows that did not comply with the permission granted. If 150 Jasmine Way had been built outside the development site altogether, the Council would be unable to require the occupier to cease using it or to pull it down. The position would probably be the same for any building erected within the development site but which deviated in a material respect from the terms of the permission granted. This follows from the overruling of Kerrier, a case in which the property was erected in the right place but not in accordance with the permission granted (because of the unauthorised basement). However, neither of these situations directly applies to 150 Jasmine Way.

27. Mr Morland concedes that 150 Jasmine Way was built in the right place and in accordance with the permission granted under decision No. 6/86/1533 and the plan annexed to it. On the face of it, therefore, the decision in Handoll has nothing to do with the enforceability of Condition 3 in respect of 150 Jasmine Way. However Mr Morland contends that approximately 20% of the 97 bungalows were built in the wrong place within the proposed development site shown on the plan, and that 7 of them were built outside the area covered by the permission altogether. Therefore, looked at as a whole, he argues that the development did not comply to a material extent with the permission granted. If the permission has to be considered as a whole, Condition 3 cannot apply to some parts of the development and not to others. Therefore, on the basis of the principle set out in Handoll and applied to what Mr Morland contends is a Kerrier-type situation, once the 4 years for enforcement elapsed, Mr Morland submits that none of the conditions attached to the permission can be enforced, whether in respect of the bungalows that were built in the wrong place or in respect of those that were built in the right place.

28. I should make it clear that both the factual premise that there was material non-compliance with the permission granted, and the legal consequences said by Mr Morland to flow from the alleged non-compliance, are contentious. The Council has rejected Mr Morland's argument in refusing his application for a Certificate of Lawful Use (by a decision made on 20^th January 2009). It is unnecessary, and indeed impossible, for the Court to determine its merits in the context of this application. Suffice it to say that my initial impression is that although the argument is ingenious, it is not an attractive one, and it may well involve stretching the Handoll principle beyond its permissible boundaries. However that debate is for another day.

29. Mr Morland argued the point before the Inspector on his appeal. This is reflected in paragraph 6 of the Decision. However the Inspector took the view that the legal argument about the current enforceability of Condition 3 was of no relevance to an application made under s.73A. Such an application is in all respects a conventional planning application, even though the development has taken place: see R (Wilkinson) v Rossendale Borough Council (above). Even if an application for retrospective planning permission without a condition is prompted by the fact that there has been a breach of that condition, the decision-maker is not required to confine his attention to the appropriateness of the condition. He is required to look at all the planning circumstances existing at the time of his decision: Sevenoaks DC v Secretary of State for the Environment (1994) P & CR 87, followed in Bannister v Secretary of State for the Environment [1994] 2 PLR 90. That is what the Inspector did.

30. Although the appeal was not contended on substantive planning grounds, the Inspector considered them in some detail. He concluded in paragraph 13 of the Decision that it was reasonable and necessary that the occupation of new dwellings provided to meet the needs of tourism should be restricted by condition. In paragraphs 17 and 18 of the Decision he considered the Handoll case, but he concluded that "whether or not the permission and its conditions apply to this development including 150 Jasmine Way is a matter that is outside of the remit of this appeal". The question for the Court on this application is whether he was right.

31. At first sight the logic of the Inspector's position appears impeccable. If someone is asking the planning authority to grant retrospective planning permission without imposing a particular condition, it is implicit from the very nature of the application that unless the permission is granted, the condition will be operative. Otherwise there is no point in asking the authority to "lift" or "remove" it. Miss Busch submitted that this is the correct analysis, and that the question whether the imposition of a condition is justified by reference to the relevant planning criteria is different from the question whether a condition that has already been imposed is enforceable in respect of an existing structure. The legal argument raised by Mr Morland would only be of relevance in an application under s.191(1) of the 1990 Act for a declaration of lawful user, though it could also be raised in defence to proceedings brought by the Council to enforce the condition. It is of no relevance to an application under s.73A.

32. Mr Morland, on the other hand, contended that the Inspector was expressly obliged to take into account the ability of the authority to enforce the condition. He relied upon Circular 11/95 "the Use of Conditions in Planning Permissions" which is referred to by the Inspector in his Decision. That Circular revises and reissues advice contained in an earlier Department of the Environment circular, advises on changes in law and policy relating to planning conditions, and gives updated references to current legislation. The Circular gives guidance only, but that does not mean that the guidance can be ignored.

33. The Circular sets out a number of key considerations to be taken into account when imposing conditions on the grant of planning permission. Paragraph 14 states that as a matter of policy, conditions should only be imposed where they satisfy all the tests described in paragraphs 14-42 of the Circular. In summary, these explain that conditions should be

i) Necessary;

ii) Relevant to planning;

iii) Relevant to the development to be permitted;

iv) Enforceable;

v) Precise; and

vi) Reasonable in all other respects.

34. The fourth of these terms is the subject of commentary in paragraphs 26 and 27 of the Circular under the heading "ability to enforce". Paragraph 26 states that a condition should not be imposed if it cannot be enforced. It makes reference to the two provisions which authorities may use to enforce conditions: an enforcement notice or breach of condition notice. Mr Morland submits that the text supports his contention that the Inspector was obliged to have regard to the alleged inability of the Council to enforce Condition 3 in respect of 150 Jasmine Way because the time for enforcement proceedings has expired. On the face of it, and taken in isolation, those sentences could be read as supporting Mr Morland's submission. However the text does not stop there. Paragraph 26 goes on to state that precision in the wording of conditions will be vital when it comes to enforcement. Paragraph 27 refers to practical difficulties in monitoring the condition, detecting contravention, and proving a breach.

35. Miss Busch submitted that "enforceability" in the Circular meant that the condition must be capable of being enforced, and that the opening lines of Paragraph 26 have to be put in their proper context. Essentially the Circular discourages the imposition of conditions that would be difficult or impossible to enforce in practice during the period when enforcement proceedings may be taken. It is clear from paragraph 16 of the Decision that the Inspector did pay regard to enforceability in that sense. He stated that the condition was precisely worded and its meaning readily discernable. He also referred to the fact that there have been a number of enforcement actions in which Condition 3 had been an issue and the enforcement action has been upheld on appeal (thus proving that the condition was capable of being enforced where necessary).

36. Miss Busch submitted that in order to determine whether a condition should be imposed on planning permission one has to assume that the development is going to be carried out in accordance with the permission. The planning authority has to decide whether any condition that it is minded to attach to the grant of permission would be capable of being enforced, if need be, by one of the two routes referred to in the Circular. That explains why the focus in the Circular is upon the precision of the language of the condition and the ability of the authority to detect and prove a breach. The Circular is not concerned with the situation where the time for enforcement has expired, as that has nothing to do with the appropriateness of the condition or whether it is reasonable to impose it.

37. In my judgment, Miss Busch's submission is correct. The Circular directs itself to the question whether conditions should be imposed on the grant of planning permission. That is the question that the planning authority has to address when an application is made under s.73A. Therefore the Circular cannot be addressing the situation in which an otherwise valid and enforceable condition has ceased to be enforceable because the time for enforcement has expired, let alone addressing a Handoll or Kerrier situation in which the condition is irrelevant from the outset because the development itself is unauthorised. The context in which an application is made under s.73A may well be that there has been a breach of planning control, but neither the breach nor any failure by the authority to take steps to remedy it are relevant considerations when determining whether to grant permission on different terms, let alone positive factors in favour of the unfettered grant.

38. This can be tested by reference to the example I gave in paragraph 25 of this judgment. If Mr Morland is right in his interpretation of the Circular, then after the unauthorised house has burned down, if the owner of the land applies to the planning authority for permission to build on the land without any occupancy condition, the authority would be bound to take into account the fact that it had been unable to require the house to be demolished because it had waited too long to bring enforcement proceedings. That fact self-evidently has nothing to do with the planning decision the authority is being required to make under s.73A. The fact that someone has flouted planning control in the past is no good reason for the planning authority to remove a condition that is otherwise justifiable. It would make no difference to the legal position if the unauthorised house were still standing. The fact that the Council can no longer require it to be demolished is still not a relevant consideration in determining whether or not to grant an application under s.73A for retrospective permission to build a house instead of a bungalow.

39. Therefore the approach adopted by the Inspector to the application under s.73A was not wrong in law. He was not obliged to take account of the argument based on Handoll and Kerrier in reaching the Decision and his reasons for refusing to do so were correct. Mr Morland's application under s.288 of the 1990 Act is misconceived, and must be dismissed.

40. I should add that even if I am wrong about this, and "enforceability" in the wider sense is and was a relevant factor as Mr Morland contends, it still would not be a good reason for this Court to grant him the relief he seeks and quash the Decision. If as a matter of law the Inspector was obliged to consider Mr Morland's Handoll argument and determine whether or not it was correct before reaching his Decision, it is difficult to see how the alleged inability of the Council to enforce the condition in respect of existing bungalows could ever outweigh all the other relevant factors he rightly took into account in determining whether or not the condition should continue to be imposed on the grant of planning permission for the development. It would have no bearing, or very little bearing, on whether Condition 3 was justified on planning grounds.

41. Therefore even if I were to make an assumption in Mr Morland's favour that, having heard legal argument on the point, the Inspector would decide that the Council could no longer bring enforcement proceedings in respect of the breach of Condition 3 at 150 Jasmine Way, it is highly improbable that this would make any difference to the outcome of the application for unrestricted planning permission under s.73A. It follows that even if I had accepted Mr Morland's submissions on the interpretation of the Circular, no purpose would be served in quashing the Decision and sending the matter back to the Inspector for reconsideration, and I would have refused the relief sought in any event as a matter of discretion.

42. Finally, I should mention that after the hearing had taken place and I had reserved judgment, a Mr Peter Weston, who is an acquaintance of Mr Morland, wrote to the Court on 28^th January 2009 seeking to make further legal submissions and to put in further documentary evidence in support of Mr Morland's application. I ruled that I was not prepared to consider any further submissions or documents, and my clerk conveyed that ruling firmly and politely by telephone to Mr Weston on the date when his letter was received. Despite this, Mr Weston sent a further letter and various documents to the Court. I have not read the letter or the documents.

43. If Mr Morland had wished to seek the assistance of Mr Weston in presenting his case at the hearing, that would have been a different matter. It was incumbent upon Mr Morland to place before the Court and to disclose to the First Defendant all the evidence, documentary or otherwise, on which he wished to rely by no later than the date of the hearing of his application. The Court decides applications solely on the basis of the evidence adduced and submissions made to it at the hearing unless it asks the parties to provide it with further assistance. It cannot and will not take into account unsolicited material that has not been provided at the appropriate time (though it could have been) and which the opposing party has had no opportunity to address.

44. For the reasons already stated this application is dismissed. In principle Mr Morland should pay the costs of the First Defendant. I have considered the First Defendant's statement of costs for summary assessment, which is in the total sum of £4,828. The time spent on documents by the solicitors appears excessive for a case of this nature. Subject to any further submissions that either party may wish to make to me when judgment is handed down, I am presently minded to assess the costs summarily in the sum of £4,000.