Planning permission for limited period – Holiday bungalows – Development remaining in use after expiry of limited period– Immunity from enforcement accruing – Appellant applying for lawful use certificate in respect of use of bungalows as dwelling-houses – Use declared lawful save that seasonal occupancy condition in permission held still to apply – Whether condition enduring once development no longer authorised by permission – Appeal allowed
Between 1965 and 1973, four planning permissions were granted for the erection of holiday bungalows on the appellants’ land near the Welsh coast. Each permission was for a limited period and stated that it would expire, and that the site was to be restored to its former use, on or before a given date. Two of the permissions specified July 1985 while the others specified July 1995, but all contained a seasonal occupancy condition limiting use to part of the year.
The bungalows remained in place and continued to be used within the seasonal occupancy periods long after the specified expiry dates. No enforcement action was taken and the bungalows became immune from enforcement action by virtue of section 171B of the Town and Country Planning Act 1990.
In 2008, the appellant made two applications for certificates of lawfulness of the existing or proposed use of the bungalows as dwelling-houses, pursuant, respectively, to section 191(1) and section 192(1) of the 1990 Act. On appeal against the local planning authority’s non-determination of those applications, the respondents granted the certificates sought on the ground that the condition as to the temporary nature of the bungalows was spent. However, they determined that the use of the bungalows continued to be subject to the seasonal occupancy conditions, which had not been breached and remained extant.
The appellant brought a claim to quash that decision under section 288 of the 1990 Act. It contended that the original permissions had expired on the specified dates and that the seasonal occupancy conditions attached to them had thereupon ceased to be enforceable. Dismissing the claim, the judge held that a “permission granted for a limited period”, within section 72(2) of the Act, did not cease to exist after the expiry of that period; what expired instead was the time within which the use should have ceased and the restoration should have occurred: see [2010] EWHC 1759 (Admin). The appellant appealed.
Held: The appeal was allowed.
There was a long-standing approach in planning law whereby a condition in a permission could not be enforced if the landowner did not have to rely on the permission to authorise its development: Essex Construction Co v East Ham Borough Council (1965) 16 P&CR 220 and Handoll v Warner Goodman & Streat [1995] 1 EGLR 173; [1995] 25 EG 157 considered. While recognising that those cases did not expressly deal with the situation where the landowner originally needed the permission to sanction its development, and where that permission had been implemented, it was none the less difficult to conceive of a condition on a temporary permission under section 72 that could sensibly relate to the development once it had ceased to be authorised by the permission.
The exception was that where a planning permission for a limited period had been granted within section 72(2) of the 1990 Act, the time limit on the authorisation would be secured by way of a condition requiring the discontinuance of the use and the reinstatement of the land at the end of the specified period, rather than by the description of the development permitted. That time limit and restoration condition did not by itself provide an example that went beyond its own scope, since that condition was expressly and precisely provided for by section 72(1)(b). It was not possible to derive from that a general approval for conditions that bound the land once the development had ceased to be authorised and had become immune from enforcement action. To be lawful, such enduring conditions would have to continue to relate fairly and reasonably to the permitted development, which seemed unlikely in the case of permanent conditions on a permission for a temporary development.
Although the seasonal use condition in each permission had no express time limit, it was, as a matter of objective construction, intended to be coterminous with the authorised development, with the result that the seasonal use restriction applied only during the period for which the holiday bungalows were permitted. When construing a permission and its conditions, the document had to be read as a whole and in such a way as to avoid internal inconsistency, if possible. It would be illogical and internally inconsistent to give the seasonal use condition in each permission a life after the specified date: Adur District Council v Secretary of State for the Environment, Transport and the Regions [2000] 1 PLR 1 applied. The first condition in each permission made it clear that permission was being granted only for a limited and specified period. To have a condition that contradicted that by assuming that development was authorised for a longer period, albeit on a seasonal basis, would give rise to major problems of interpretation as to the duration of the authorisation. The certificate appeals should therefore be remitted for redetermination.
Rupert Warren (instructed by Clarke Willmott LLP, of Birmingham) appeared for the appellant; Jonathan Moffett (instructed by the Treasury Solicitor) appeared for the first respondents; Paul Stinchcombe QC (instructed by the legal department of Ceredigion County Council) appeared for the second respondents.
Sally Dobson, barrister
