Establishing the 10-year period for immunity from prosecution for breach of planning control under section 171B of the Town and Country Planning Act 1990 requires evidence of continuous use for 10 years beginning with the date of breach.
The High Court has considered this issue in Leicestershire County Council and another v Miles [2024] EWHC 1782 (KB).
The case concerned an appeal against an injunction granted under section 187B of the 1990 Act, which permits the court to grant a local authority injunctive relief to restrain an actual or apprehended breach of planning control.
The appellant owned Sandpit Farm in Thurlaston, Leicestershire, with an adjacent grass verge on both sides of the lane. The appellant accumulated and stored a wide variety of vehicles and equipment on the farm following his move there in 2002. Following inspections in 2021, the respondents concluded that the appellant was using the verge as a storage area for vehicles, a change of use for which he did not have planning permission. They sought a mandatory order requiring the removal of vehicles.
In September 2022, the judge concluded that the primary use of highway verges is to enable cars to pass and repass safely on the highway. While parking was a permitted activity, storage of vehicles on the highway changes the use and was not permitted. The verges were unsuitable for parking, and taking account of the length of time the vehicles were left, the verges were used for storage rather than parking. He awarded an injunction preventing the appellant from keeping any vehicle on land in Blaby without planning permission or the written consent of Blaby District Council.
The appellant argued that the judge’s decision was wrong because the planning breach complained of related to a state of affairs persisting for more than 10 years before the enforcement action was taken. So, he was entitled to statutory immunity under section 171B. He had only raised the issue in closing submissions and after evidence in the case had concluded.
The judge had found, on evidence from the second respondent, that the change of use started in about 2015 and was increased in around 2021. The High Court decided that this was a finding the judge was entitled to make. The material before the court fell far short of being capable of demonstrating, on a balance of probabilities, that the storage of vehicles on the verge had persisted continuously for more than 10 years. The appellant’s decision not to give oral evidence was a legitimate tactical decision but he must live with the consequences.
Louise Clark is a property law consultant and mediator
