Temporary planning permission granted subject to conditions – Appellant council issuing enforcement notice alleging change of use of land – Inspector recommending enforcement notice be quashed as no breach of planning control – Secretary of State adopting recommendations – Council applying to quash decision – Whether conditions attached to temporary planning permission continuing beyond expiry of the permission – Matter remitted for redetermination
On February 1 1995 Adur District Council issued an enforcement notice that related to land previously occupied by Shoreham B Power Station, West Sussex, and alleged a material change of use of the quays and open land on site. The second respondent (Shoreham Port Authority) appealed against the notice.The inspector recommended that the notice be quashed on the ground that the matters identified in it did not constitute a breach of planning control. His recommendations were subsequently accepted by the Secretary of State who, on January 28 1998, allowed the second respondent’s appeal.The council appealed under section 289 of the Town and Country Planning Act 1990 to quash the decision of the Secretary of State. It was submitted that the Secretary of State had erred (i) in determining that the land was “operational land” as defined in section 264(3) of the 1990 Act by reason of there having been two specific planning permissions for development of the land; and (ii) in finding that the activities permitted under Part 17, Class B of the General Permitted Development Order 1995 (GPDO), as a result of the second respondent holding “operational land”, were not materially restricted by any conditions in the permissions, by virtue of Article 3(4) of the GPDO.
Held The appeal was allowed.
1. It was submitted that temporary planning permission was not permission within section 264(3)(a) of the 1990 Act. However, it did not follow that it was not a planning permission within section 336(1) of the Act. It was a permission that had at some time been in force with respect to the relevant land. The Secretary of State had correctly concluded that the land was “operational land”.
2. Accordingly, it was necessary to decide what was the effect of the particular conditions upon the permission granted by the GPDO, as it was to be construed as preserving the effects of the conditions before the land became “operational land”. Although the inspector’s approach in examining the conditions was correct, his interpretation of condition two, that notwithstanding the GPDO the site was not to be used other than for storage of cars, was incorrect. Therefore, the Secretary of State had been misdirected in the interpretation of that condition and the matter was to be remitted for redermination.
John Steel QC and Hugh Richards (instructed by the solicitor to Adur District Council) appeared for the appellant council; David Elvin (instructed by the Treasury Solicitor) appeared for the first respondent, the Secretary of State for the Environment, Transport and the Regions; Anthony Porten QC (instructed by Griffith Smith, Dodd & Riley, of Brighton) appeared for the second respondent, Shoreham Port Authority.
Sarah Addenbrooke, barrister
