Council granting temporary planning permission to port authority for use of land for storage of cars – Temporary planning permission expiring – Port authority using land for port-related activities – Enforcement notice – Whether port-related activities within permitted development rights – Town and Country Planning (General Permitted Development Order) 1995 – Town and Country Planning Act 1990 – Notice quashed – Appeal allowed
On 12 February 1991 the respondent council granted planning permission to the second appellant, Shoreham Port Authority, in relation to land at Shoreham Harbour, Shoreham-by-Sea, West Sussex. Condition 1 of the permission stated: “The use hereby granted shall be discontinued permanently and the land restored to its former condition or to a condition agreed… on or before the expiration of the period ending 31 December 1991”. Condition 2 stated: “Notwithstanding the provisions in the Town and Country Planning (Use Classes) Order 1987 and the Town and Country Planning (General Development) Order 1988 (as amended), the site shall be used solely for the storage of cars”. On 1 February 1998 the council issued an enforcement notice alleging a breach of planning control, namely the use of the land for the docking of ships and the loading and unloading of cargoes. The port authority appealed and a public inquiry was held. The inspector concluded that there had been no breach of planning control on the basis that the land enjoyed permitted development rights under Part 17 of Class B of the Town and Country Planning (General Permitted Development) Order 1995 (SI 1813) (the order).
The Secretary of State adopted the inspector’s recommendations and quashed the enforcement notice on the ground that the development was permitted by Article 3 of the order. Article 3(1) granted such permission for the development by statutory undertakers on operational land subject to Article 3(4), which provided that: “Nothing in this Order permits development contrary to any condition imposed by any planning permission granted … under Part III of the Act otherwise than by this Order.”
The council appealed contending that the land was not operational land within the definition contained in section 263(1) of the Town and Country Planning Act 1990 and that, in any event, the permission was not granted by Article 3(1) of the order by reason of section 3(4). The judge held that the Secretary of State had been right to hold that the land was operational land, but concluded that the order preserved the effect of the conditions imposed by the temporary planning permission before the land became operational land, and that accordingly the second condition prevented the exercise of permitted development rights, so as to exclude the use being made of the site at the date of the enforcement notice. The Secretary of State and the port authority appealed.
Held: The appeal was allowed.
The issue turned on the construction of the temporary planning permission and the conditions attached to it. The permission had the effect according to its terms and the second condition restricted the use of the land to the storage of cars during the duration of the planning permission. Article 3(4), which referred to “any condition imposed by a planning permission granted” only applied to conditions in force. Accordingly, since the condition had expired with the planning permission at the date of the enforcement notice, the port authority had permitted development rights and were entitled to use the land for port-related activities.
David Elvin (instructed by the Treasury Solicitor) appeared for the first appellant; Anthony Porten QC (instructed by Griffith Smith, of Brighton) appeared for the second appellants; John Steel QC (instructed by the solicitor to Adur District Council) for the respondent council.
Thomas Elliott, barrister
