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Lawful development certificates
Amount of detail required in certificate
Hillingdon London Borough Council v Secretary of State for Communities & Local Government and Autodex Ltd
[2008] EWHC 198 (Admin)
Summary
This case is instructive in that is considers the level of detail necessary when issuing a certificate of lawful use and also addresses the proper interpretation of s57(4) of the Town and Country Planning Act 1990.
Facts
The local authority applied to quash a decision of the secretary of state allowing the appeal of the second respondent against the refusal of the local authority to issue a certificate of lawful use or development for the use of land and buildings on a site for storage and ancillary purposes. The land related to a former farm that had been vacant and derelict for many years.
The local authority contended that the inspector had not described the lawful use of the site in sufficient detail and that she had misunderstood the effect of s57 (4) of the 1990 Act The inspector on behalf of the secretary of state had granted a certificate of lawful use or development for use of land and buildings on the site for storage in that while such a use was lawful for the purposes of the 1990 Act it could not be resumed as the provisions relating to lawful development certificates were contained in Part VII of the Act and not Part III
Held
The court rejected these submissions and held that the appropriate level of detail would vary from case to case and there was no legal requirement to specify the quantity of any particular item that could lawfully be stored on the site nor was there any need to define what was meant by ancillary purposes as this was a concept well understood in planning law.
The court also held that the effect of s191(2) of the 1990 Act had to be considered by adopting a purposive approach. By doing so it was clear that the effect was to make certain uses lawful for the entirety of the Act.
Accordingly, the inspector had not made any error of law.
Comment
This case deals with two important issues relating to certificates of lawfulness. While the statutory provisions of the 1990 Act need to be complied with, the question of how much detail is necessary in a certificate will be a matter for the decision maker. Furthermore, a distinction was drawn between the earlier provisions of the preceding Acts and the 1990 Act in respect of the question of reversion to a lawful use. The new regime when considered purposively did permit reversion to a lawful use.
Enforcement action
Seasonal occupancy condition
North Devon District Council v First Secretary of State and Stokes [2004] EWHC 578 (Admin)
Facts
The owner of a holiday bungalow applied unsuccessfully to the council for an LDC for permanent residential use of the bungalow. Planning permission for its construction contained a condition restricting occupation to the period of 15 March to 15 November in each year but the owner contended that he had occupied the bungalow continuously since 1992 in breach of this condition. On appeal, the inspector granted the LDC. The council applied to quash the inspectors decision on the basis that the condition had not been breached continuously for more than ten years as required by section 171B(3) of the Town and Country Planning Act 1990. The occupation of the bungalow between 15 March and 15 November in each year complied with the condition.
Decision
Sullivan J dismissed the claim. There was nothing in section 171B to prevent the beach of a seasonal occupancy condition from becoming immune from enforcement action after ten years. The council could at any time during that period have taken enforcement action, even during the summer months when occupancy was not in breach of the condition. Now it was too late to do so.
Comment
In Thurrock Borough Council v Secretary of State [2002] 2 PLR 43 the CA held that enforcement action could be commenced within the relevant limitation period even if at the moment of issue of the enforcement notice the activity objected to was not actually going on, because the land could still properly be described as being used for the objectionable activity.
Time Limits
Field v First Secretary of State
[2004] EWHC 147 (Admin)
Facts
C unsuccessfully applied to the local planning authority for a lawful development certificate in the following circumstances. In 1967, outline planning permission had been granted in respect of the claimants land for the demolition of existing cottages and the construction of two new bungalows. As a result of later provisions contained in the Town and Country Planning Act 1971, the outline planning permission was deemed to be subject to a condition requiring the development to begin within a period of five years commencing on 1 April 1969. The cottages had been demolished in 1969 or 1970 but nothing further had been done to implement the planning permission.
C contended that the works of demolition amounted to a specified operation within the meaning of s43 of the 1971 Act, so marking the beginning of the development. Therefore, the planning permission remained valid. On appeal, the inspector rejected that argument on the basis that the works had to include a constructive element to qualify as a specified operation. The claimant challenged that decision n the High Court.
Decision
Sullivan J allowed the claim. It was clear from the later decision in Cambridge City Council v Secretary of State for the Environment [1992] 3 PLR 4 that the works of demolition constituted development for the purposes of the statute. Carrying out a specified operation within the meaning of s43 of the 1971 Act was not the only way in which, for the purposes of the time limit, the development could be begun. Some developments would not include any specified operations and these had to be capable of being begun for the purposes of time limits.
Comment
The relevant statutory provision now is s56 of the Town and Country Planning Act 1990 which refers to material operation rather than specified operation and includes within the definition of the former any work of demolition of a building. This decision remains relevant, however, in that it supports the proposition that for the purposes of time limits, there may be circumstances in which development could be regarded as having been begun other than by means of a material operation.
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