Planning permission granted for construction of farmhouse — Agricultural occupancy condition — Breach of condition — Enforcement notice served more than four years after breach — High Court holding that notice should be quashed as out of time — Majority of Court of Appeal reversing that decision
On July 30 1984 the planning authority granted planning permission for the construction of a farmhouse to replace a temporary mobile home at Brewery Fields, Bradfield, Reading. A condition was imposed that the occupation of the dwelling should be limited to a person employed locally in agriculture or forestry. Mr and Mrs M went into occupation on October 27 1986, but neither fulfilled the requirements of the condition. However, the planning authority took no steps to enforce the condition until January 21 1991 when an enforcement notice was served under section 175 of the Town and Country Planning Act 1990. The notice alleged a breach of planning control by virtue of the occupation of the premises by a person not employed in agriculture repeating the terms of the condition. Mr and Mrs M appealed but an inspector found against them. A breach of the condition was established but, as a period of more than four years had elapsed from the date of the breach before the enforcement notice was served, it was out of time having regard to the provisions of section 172(4) of the 1990 Act. Therefore, the notice had to be quashed. Section 174(2) provided that an enforcement notice, in respect of the failure to comply with any condition which related to the carrying out of building operations and subject to which planning permission was granted for the development of land, might be issued only within four years from the date of breach. The High Court upheld that decision concluding that the case of Harvey v Secretary of State of Wales (1989) 88 LGR 253 applied so that it was incumbent on the court to quash the enforcement notice. In that case a condition as to occupancy was held to be one which related to the carrying out of building operations within the predecessor to section 172(4)(b). The council appealed.
Held The appeal was allowed by a majority (Rose LJ dissenting) and the case remitted to the Secretary of State for further consideration.
1. It could not be said that the failure of Mr and Mrs M to engage in agriculture related to the carrying out of the building operations as section 172(4)(b) provided. The condition imposed upon the grant of permission to Mr and Mrs M related exclusively to occupancy of the dwellinghouse and was not concerned with the building as such.
2. Harvey case was distinguishable on its facts. The condition there did not relate exclusively to occupancy. Since its essential purpose was to require demolition of a bungalow it directly related to a building operation. The requirement as to occupancy was no more than a corollary to the requirement to demolish which bought section 172(4)(b) into effect: see Peacock Homes Ltd v Secretary of State for the Environment (1984) 83 LGR 686.
3. Per Rose LJ dissenting: The court was bound by Harvey and had to follow it. In both cases the condition related to the carrying out of operational development.
John Steel QC (instructed by Sharpe Pritchard, London agents for the solicitor to Newbury District Council) appeared for the local authority; Tobias Davey (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; Christopher Whybrow QC (instructed by Orchehill Chambers, of Gerrards Cross) appeared for Mr and Mrs M.
