Planning permission — Property development — Area of outstanding natural beauty — Approval of scheme of work delayed — Work commenced without approval — Approval granted by Secretary of State after work commenced — Enforcement notice issued — Appeal and planning permission refused — Appeal by developers to High Court allowed — Local planning authority appealing against decision — Whether appeal against notice should have been allowed — Whether continuing breach — Appeal dismissed
In November 1973 the Secretary of State granted the developers’ predecessors in title planning permission for the extraction of silica, stone and sand from a site at Moel Findeg, Maeshafn, Clwyd. The site was within an area designated as an area of outstanding natural beauty. No work was to commence except in accordance with a scheme to be agreed with the local planning authority or, in default of agreement, by the Secretary of State. Work had to be started by November 30 1978. In May 1976 the developers purchased the site paying a price which reflected the value of the planning permission. In July 1977 they made an application for approval of a scheme of work. There was some considerable delay in the planning subcommittee’s coming to a decision and it was not until October 1978 that they decided not to approve the proposals. On November 2 1978 the developers applied to the Secretary of State for his approval, seeking an urgent reply in order that action could be taken before November 30. It was impracticable for a decision to be given in the time available and the developers commenced work on the site without approval. Having belatedly obtained the approval of the Secretary of State on September 5 1983, work was then carried out on the site in accordance with the approved scheme, which was a continuation of the operations commenced in 1978. This resulted in an enforcement notice being issued on October 10. That notice was withdrawn and was followed by a fresh notice on December 2 1983. The developers’ appeal against the notice to the Secretary of State was unsuccessful and a separate application for planning permission was rejected. The developers then appealed to the High Court. Sir Frank Layfield QC, sitting as a deputy judge of the Queen’s Bench Division allowed the appeal, which the Secretary of State had resisted: see [1990] 2 PLR 440. The planning authority appealed to the Court of Appeal upon the Secretary of State’s decision not to take the issue further.
Held The appeal was dismissed.
1. Section 87(4) of the Town and Country Planning Act 1971 made it clear that enforcement action could be taken only within four years of any specific mining operations taking place. That was why the planning authority were not in a position to take enforcement action against the mining operations which took place in 1978, when the enforcement notice was served on December 2 1983. The notice therefore related to the work which had commenced in September 1983. The planning authority were in a position to take action against the later operations since, for the purposes of enforcement, mining operations constituted a continuing breach of planning control while they persisted.
2. The question was whether the development was permitted by the planning permission read together with its conditions. The permission was controlled by and subject to the conditions. If the operations contravened the conditions they could not be properly described as commencing the development authorised by the permission. If they did not comply with the permission they constituted a breach of planning control and for planning purposes would be unauthorised and thus unlawful. In this case the mining operations to which the planning permission related were those authorised by the planning permission — not those which were unauthorised because they contravened conditions contained in the planning permission.
3. The case of Hughes v Doncaster Metropolitan Borough Council [1991] 1 EGLR 31 indicated that in a context of planning and related legislation, the failure of a planning authority to take enforcement action could for some purposes give a developer rights which he would not otherwise have. That result would be taken further when section 191 of the Town and Country Planning Act 1990 came into force which would make development which could not be enforced against lawful.
4. In general, it would accord with the intent of the legislation if the approval of a scheme were obtained after the expiration of the time-limits as long as the application had been made before the specified time-limits and either the operations which had taken place were immune from enforcement or the approval was obtained prior to enforcement action.
5. Whether or not the planning permission had been implemented had to be tested by examining the situation in an enforcement context; by considering whether enforcement action was possible and, if it was, leaving the outcome to be determined in the enforcement proceedings. That was a sensible and practical solution to possible problems in obtaining approval. If the planning authority or the Secretary of State did not regard it as desirable where a time-limit had expired to give approval to reserved matters, they were not under a duty to give approval. They could take the stand (as long as they acted reasonably) that the developer had lost his chance. If, however, they gave approval, no purpose would be served in requiring a fresh application for planning permission. That approach was in accord with the policy of the legislation: see Thayer v Secretary of State for the Environment [1991] 3 PLR 104.
6. That approach was not intended to be a charter for developers to ignore conditions intended to be complied with before a planning permission was implemented. If a developer did not comply with a condition he could have enforcement action or any other available action taken against him. However, when the merits of the enforcement proceedings came to be considered it was necessary to take into account the situation as it existed at that time and in particular whether any approval required by a condition had been obtained.
7. Accordingly, in the present case, the operations having been commenced and the application for approval having been made before the expiry of the time-limits, the relevant operations no longer being enforceable against, the approval having been obtained prior to the enforcement notice, the developers’ appeal to the Secretary of State should have been allowed.
Jeremy Sullivan QC and Thomas Hill (instructed by Sharpe Pritchard) appeared for the appellant local authority; and Lionel Read QC and Paul Stinchcombe (instructed by Clement Jones & Co, of Holywell, Clwyd) appeared for the respondent developers.
