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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.


Grant of planning permission

No release from obligations in s106 agreement

R (on the application of Peel Land and Property Investments Plc) v Hyndburn BC
[2012] EWHC 2959

Summary

The effect of obtaining planning permissions was not to release the owner of a retail park from obligations in a s106 agreement restricting the type of goods that could be sold. Certificates of lawful development had been rightly refused.

Facts

The claimant (C) was the owner of a retail park. The retail park contained a number of retail units which were subject to planning obligations restricting the type of goods that could be sold. However, each section 106 agreement contained a proviso that:
    “Nothing in this Agreement shall prohibit or limit the right to develop any part of the Site in accordance with any planning permission… granted (whether or not on appeal) after the date of this Agreement.”
C applied for and obtained a series of minor planning permissions to alter and subdivide the retail units. C then applied for a certificate of lawful development to the effect that as a result of the later planning permissions, the provisos in the section 106 agreements were triggered so that the section 106 restrictions on the types of goods sold no longer applied. The council refused the certificates, and C appealed to an Inspector. However, before the hearing, C issued this claim judicially reviewing the Council’s refusal.

Decision

The High court refused the application and held that the Council were entitled to refuse to grant certificates of lawful development to allow unrestricted A1 retail use at the retail park. The court also gave leave to appeal to the Court of Appeal.

C argued that:
  • Each of the later permissions permitted both internal and external works which led to the creation of one or more new retail units;
  • By virtue of section 75(3) of the Town and Country Planning Act 1990, those units could be used for unrestricted A1 retail purposes, being the use for which they were designed; and
  • The development permitted by the later permissions amounted to a new chapter in the planning history of the units, which also had the effect of engaging the proviso.
The court dismissed C’s claim and held that the planning permissions granted did not involve the creation of new retail units or a new planning chapter, or a material change of use and thus did not have the effect of releasing C from obligations restricting the type of goods that could be sold in certain units.

The court also accepted that s75 of the Town and Country Planning Act 1990 was not engaged in circumstances where the application for planning permission did not involve any material change of use and therefore s75 could not assist C because the use of the retail units before and after the alterations remained the same. Section 75(3) required an implicit or explicit request for a change of use. That was absent in the instant case.


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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