CURRENT LEGAL ISSUES IN ENFORCEMENT

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CURRENT LEGAL ISSUES IN ENFORCEMENT
ByMEYRIC LEWIS, BARRISTER
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Lawfulness and the ten year rule
Operational development immune four years after
substantial completion, section 171B(1) TCPA
1990 Sage House of Lords (internal works) Fidler
decision letter (house behind hay bales)

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Same applies to changes of use to use as a
single dwelling house, section 171B(2) Arun DC
v. Secretary of State Court of Appeal also four
years where breach of condition Bloomfield v
Secretary of State ten years

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any other breach of planning control (ie
changes of use and breach of condition) immune
after ten years, section 171B(3) Time from the
date of the making of the change/date of breach,
section 171B(3) again

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Use or breach of condition must be carried on
continuously throughout ten year period Secretary
of State v Thurrock BC Court of Appeal (airfield
something to bite on) Swale BC v. Secretary
of State (insufficient continuity of residential
use)

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Count forwards from breach, not backwards from
date of enforcement Panton v. Secretary of State
changes of use Contrast Nicholson v. Secretary
of State breach of condition (and NB Ellis
2009 EWHC 634 Admin) Problem of dormant use
eg Colver If ten years established, use rights
can only be lost by abandonment etc

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Recap Identify nature of breach change of
use or breach of condition Select relevant
period Count forwards from date of breach Is
breach continuous? (NB dormant periods)
Abandonment, implementation of new PP/change of
use?

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Estoppel arguments
Basic position Southend on Sea Corp. v.
Hodgson (Wickford) Ltd an authority cannot be
estopped from exercising its statutory powers
ie cant be prevented from withdrawing
representation Compare the information
contained in this letter is only the professional
opinion of an officer and cannot bind the local
planning authority

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Estoppel two former exceptions Lever Finance
purported approval by officer of minor variation
to PP (or other determination) even if acting
ultra vires so long as ostensible
authority/reason to believe acting within powers

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Second former exception Wells v. MoHLG
representation in response to an application for
planning permission that no planning permission
necessary treated as a formal determination

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Reprotech
Waste treatment plant electricity generation
desired Section 73 application to substitute
condition (preventing 24-hour use of mechanical
plant) Resolution in favour No grant made

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Electricity generation proposal revived years
later House of Lords held no Wells exception
(because no determination) unhelpful to
introduce private law concepts of estoppel into
planning law Analogy with legitimate
expectation noted (see below) NB rights of third
parties

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Legitimate expectation a promise made by a
public authority (or practice adopted) which
represents how it proposes to act in a certain
area promise/practice must be honoured/observed
unless good reason not to

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Powergen no legitimate expectation (in letter re.
implementation) because no delegated authority
in any event, words relied on insufficient and
no reliance Coghurst Wood Leisure no legitimate
expectation implementation was not lawful and
no abuse of power Henry Boot no legitimate
expectation NB availability of legal advice to
substantial house builder no abuse of power not
saying legitimate expectation could never arise
but cases very rare

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Rastrum the rare case? Section 106 agreement
entered into by lpa NB decision also made on
basis that commencement works now immune from
enforcement

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Under-enforcement
Section 173(11) - where an enforcement notice
could have required any buildings/works to be
removed or any activity to cease, but does not do
so and all the requirements of the notice are
complied with, then planning permission deemed to
be granted for building/works or activity

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Note paras. 2.10-2.11 of Circular 10/97
Enforcing Planning Control (mixed use
cases) Fidler v. First Secretary of State
section 173(11) does not apply to all
arguable/potential breaches of planning control,
only to those identified Circular 10/97
confusing and ambiguous Use PCNs?

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Invalid requirements in notices
Payne v. National Assembly for Wales submit
details of a scheme of levelling and planting of
the land to the Local Planning Authority, for
written approval, which shall include proposals
to level and plant the areas of the land affected
by the activities described in Part 3 of this
Notice and to implement the scheme as approved

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Compare Kaur v. Secretary of State Payne
Inspector exercised power of variation Court held
notice a nullity Miller-Mead (hopelessly
ambiguous or uncertain/so much waste paper) But
section 176 powers are wide Bath City Council
restore to condition before breach took place?

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Short round-up of some recent developments
Williams v. Secretary of State 2009 EWHC 475
(Admin) Inspector entitled to conclude risk of
non-compliance with planning conditions was a
reason for not granting planning permission on an
enforcement notice appeal (pallet etc business)

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R (Perrett) v. Secretary of State 2009 EWHC 234
(Admin) Secretary of State entitled to confine
rehearing of remitted enforcement appeal to issue
on which previous proceedings invalidated
(appellant wanted to revive ground (d) appeal as
well as ground (a)) although contrast Newbury DC
v. Secretary of State 1988 JPL 185 and
Kingswood DC v. Secretary of State 1988 JPL 248

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Basingstoke and Deane DC v. Secretary of State
2009 EWHC 1012 (Admin) Inspector granted
lawful use certificate on the basis that
agricultural occupancy condition was
unenforceable since it had not been imposed for a
proper planning purpose (but to avoid paying a
then applicable development charge) and also ten
years use in breach of condition made out (ie
Swale/Thurrock applied)

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Ardagh Glass v. Chester City Council/Ellesmere
Port Neston BC and Quinn Glass 2009 EWHC 745
(Admin) mandatory order granted requiring LPA
to issue enforcement notice (because of error of
law about when Quinn Glasss factory building had
been substantially completed)

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Bridle v. Secretary of State 2009 EWHC 829
(Admin) occupation of goat shed and log cabin
and whether single dwellinghouse use

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Rastrum 2009 EWHC 184 Admin PP implemented
because commencing access works now immune from
enforcement (and see also on legitimate
expectation)

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Barnett 2009 EWCA Civ 476 full planning
applications necessarily import plans into
permission (not a question of resolving
ambiguity) original application area defined
residential curtilage (and not subsequently
extended by application for extension to
dwelling)

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Finally NB publication of new Costs Circular
03/2009 PINS Procedural Guidance for enforcement
appeals/determination of appeal procedure

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CURRENT LEGAL ISSUES IN ENFORCEMENT
ByMEYRIC LEWIS, BARRISTER