Applicant purchasing property subject to agricultural occupancy condition – Property developed with permission – Application for lawful development certificate – Whether necessary that breach of condition subsisting at date of application – Town and County Planning Act 1990 section 19 – Appeals dismissed
Meadows, Woodham Walter, Essex, built in 1962 pursuant to planning permission and subject to an agricultural occupancy condition, was occupied by the manager of the fruit farm of which it formed part. The fruit farm was discontinued in 1974 and Meadows was occupied in breach of the condition. In 1991 the applicant bought Meadows and, with planning permission, extended the house but did not live in it. In 1996 an application was made to the district council for a lawful development certificate. It was refused. The applicant appealed. In October 1966 a public inquiry was held. The Secretary of State for the Environment dismissed that appeal and an appeal against refusal of planning permission, for the removal of the condition, by decision letter dated January 31 1997. The inspector concluded that there had been “a clear breach of the occupancy condition from 1984 to 1991”, but he did not “consider this definition applies to 1977-84 or the period since 1991 when the dwelling was not . . . kept ready for habitation”. He also concluded that Meadows had not been occupied since 1991 by anyone who failed to comply with the condition; consequently there had been no breach of condition since that date and therefore the condition had not been breached continuously for a period of 10 years. The applicant applied to quash the decision of the Secretary of State contending that he had erred in holding that it was necessary for the purpose of section 191 of the 1990 Act that there should be a subsisting breach of the condition at the date of the application for a lawful development certificate.
Held Both appeals were dismissed.
1. Since 1991 Meadows had not been occupied by anyone failing to satisfy the condition, so there had been no breach of the condition since that date. Consequently the breach of planning control represented by the former occupier’s occupation came to an end in 1991 at which time, before the Planning and Compensation Act 1991 introduced the 10-year rule, it had not become immune from enforcement action. In addition, at the date of the application for the late development certificate, there was no existing breach of control which could be said to have gained immunity because it had continued for more than 10 years. Applying section 191 of the 1991 Act, which dealt specifically with failure to comply with a condition, an application could only be made if non-compliance existed at the time of the application.
2. With regard to the planning appeal, the decision letter did not demonstrate that the Secretary of State misdirected himself, and the reasons given did not therefore give rise to any real or substantial doubt in that respect.
John Dagg (instructed by Holmes & Hills, of Braintree) appeared for the applicant; Michael Bedford (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; the second respondents, Maldon District Council, did not appear and were not represented.
