The Planning Inspectorate has refused an appeal (APP/L3245/W/23/3328508) against Shropshire Council’s refusal to remove an agricultural occupancy condition despite the existence of a certificate of lawfulness permitting occupation of the property in breach of the AOC.
The appeal concerned a detached dwelling, located just outside a village within a designated protected rural parish. The CLEUD, granted in January 2023, already allowed the property to be legally occupied and, more importantly, sold as a market dwelling. However, the owners subsequently applied to also have the AOC removed from the original planning permission.
It appears the application was motivated by a perceived risk that, should an agricultural worker occupy the dwelling subsequently, the AOC would retake effect. This position does appear to have been considered previously by the Planning Inspectorate (APP/D0840/W/22/3304612), but in that case whether the condition still served a useful purpose and would be capable of enforcement in the future was also considered due to the time passed. However, question has been raised with this approach following the decision in R (on the application of Ocado Retail Ltd) v Islington London Borough Council [2021] EWHC 1509 (Admin); [2021] PLSCS 104, where it was found an accrued right relating to a breach of planning condition is not lost if that right does not continue to be exercised.
It’s also unclear how the council would seek to re-enforce the AOC in the face of the extant CLEUD without revoking the CLEUD, which is understood not to be possible outside the circumstances set out in section 193(7) of the Town and Country Planning Act 1990 (as amended), namely that the CLEUD was granted on the basis of false information or any material information was withheld.
The council’s reason for refusal of the application was that, unless demonstrated that it was no longer needed, in order to secure removal of an AOC’s local plan policy required an affordable housing contribution to be secured, as this would effectively create a new market dwelling.
The inspector found that, due to the property’s location within a DPRP, under the National Planning Policy Framework an affordable housing contribution could be sought from a single dwelling and that, despite the existence of the CLEUD, local plan policy was unambiguous and therefore the condition could not be removed without the necessary contribution being secured via a planning obligation.
While, being an appeal decision, this is likely to slip under the radar of many practitioners, it certainly appears to highlight a point rife for argument in relation to whether such planning conditions could indeed “bite back” despite the grant of a CLEUD. It remains to be seen when that point may be tested by the courts but it would certainly be an interesting case.
Erica Ives is an associate solicitor in the planning & environmental team at Irwin Mitchell
