Condition restricting occupancy imposed in planning permission for erection of building — Whether condition applied to building not authorised by that permission
By an outline
planning permission granted on October 22 1977 by the fourth respondent
district council, permission was given to erect a dwelling and garage in
connection with agriculture at a specified location. That was confirmed by the
approval of reserved matters on December 2 1977. The dwelling was in fact
erected by the second and third respondent vendors some 90ft west of the
approved location. In proceedings by the plaintiff purchasers, against their
solicitors, the vendors and the council their contention that, as the dwelling
was unauthorised and in breach of planning control, the agricultural occupancy
condition was not enforceable, was not accepted by the court below: Mervyn
Davies J applying Kerrier District Council v Secretary of State for
the Environment (1980) 41 P&CR 284. The plaintiffs appealed.
The reasoning
of the Divisional Court in Kerrier District Council v Secretary of
State for the Environment was flawed and the case wrongly decided. Where
development is carried out in breach of planning control, and not by way of
implementation of any planning permission, the development is not subject to
any conditions imposed by a planning permission: see p49.
to in the judgments
Kerrier
District Council v Secretary of State for the
Environment (1980) 41 P&CR 284; [1981] JPL 193, DC
Noble v Armitage [1962] EGD 534; (1962) 182 EG 209
Sheppard v Secretary of State for the Environment [1975] 1 EGLR 133;
[1975] EGD 837; (1974) 233 EG 1167; [1975] JPL 352
Whitley
(FG) & Sons Co Ltd v Secretary of State for
Wales (1992) 64 P&CR 296; [1992] 3 PLR 72; [1992] JPL 856, CA
Appeal against
decision of Mervyn Davies J
This was an
appeal by Stephen Colin Handoll, Margaret Charlotte Ginette Handoll and Muriel
Hazel Suddick from a decision of Mervyn Davies J, who had given judgment on a
preliminary issue to the fourth respondents, East Lindsey District Council, in
a consolidated action against Warner Goodman & Streat, Samuel John Cook and
June Cook for breach of contract, and against the fourth respondents for other
relief: [1993] 1 EGLR 185; [1993] 12 EG 131.
QC and Joanne Wicks (instructed by Roythorne & Co, of Boston) appeared for
the appellants.
(instructed by Browne Jacobson, of Nottingham) appeared for the fourth
respondents, East Lindsey District Council.
to third respondents, who agreed to be bound by the preliminary hearing, did
not appear and were not represented.
following judgments were delivered.
McCowan LJ: The question raised by this appeal is succinctly set out by Mr John
Howell QC, counsel for the appellants, at para 1 of his skeleton argument,
which reads:
The question
raised by this appeal is whether, and (if so) in what circumstances a condition
restricting occupancy imposed on a planning permission for the erection of a
building may apply to a building which is not authorised by that permission.
The appeal is
from a decision of Mervyn Davies J on October 21 1992. It is reported at (1992)
66 P&CR 78. We have also had the advantage of a transcript of his judgment.
In the opening passage of his judgment, the learned judge explained the
background to the point he was called upon to decide. He said:
I have to
decide a preliminary issue in a consolidated action. However, the issue is
tried only as between the plaintiffs and the fourth defendants in the
consolidated action. The other defendants have agreed, as I understand, to be
bound by any finding on the preliminary issue. The three plaintiffs are Mr
Stephen Colin Handoll, Mrs Margaret Charlotte Ginette Handoll and Mrs Muriel
Hazel Suddick. The plaintiffs own 5.183 acres of land at Stickney,
Lincolnshire, together with a bungalow and outbuildings built thereon called
‘The Paddocks’. They acquired the property by a conveyance dated December 10
1984 in which Mr and Mrs S J Cook were the vendors. The defendants in the consolidated
action are Warner Goodman & Streat. They are the solicitors who acted for
the plaintiffs when the property was bought. The second and third defendants
are the Cooks. The fourth defendants are East Lindsey District Council. The
trial of the preliminary issue was ordered by Master Munrow on October 16 1990.
In brief, the question is whether the land that has been conveyed to the
plaintiffs is subject to any restriction imposed by the district council
whereby occupation of the land is limited to persons engaged in agriculture.
The plaintiffs
assert that when they bought the property they were not aware of the
agricultural condition. We were told that that is in issue in the proceedings.
I look at the actual terms of the preliminary issue as set out in the master’s
order:
Whether the
property known as the piece or parcel of land situate in the parish of Stickney
Lincolnshire being number 9 on the sheet Xc6 (1904) on the Ordnance Survey Plan
containing 5.183 acres or thereabouts together with the messuage or dwelling
house and outbuildings erected thereon or some
subject to any restriction imposed by the East Lindsey District Council or
otherwise whereby its occupation is limited to a person solely or mainly
employed or last employed in the locality in agriculture as defined by Section
290 of the Town and Country Planning Act 1971 or in forestry or a dependant or
such a person residing with him (but including a widow or widower of such
person).
The learned
judge went on to recount the history of the matter. The Paddocks was built by the
Cooks in 1978. On May 31 1977 Mr Cook, acting by his architect, submitted an
application for planning permission. The judge said:
The
application shows on its front page that permission or approval was sought for
land described as ‘West Fen Lane, Stickney, Boston, Lincs’ OS Sheet 90/6 plots
9 and 10. Inside the application form one is required to state ‘Location of
proposed dwelling’. That is given as ‘Stickney OS Xc:6. Fields 9 and 10 (part)’
Then the judge
refers to an outline planning permission, which was forthcoming from the
district council. He went on:
It is dated
October 27 1977. It gives as particulars and location of the development
submitted in these terms:
‘Outline
application for permission to erect a dwelling and garage in connection with agriculture
and for the vehicular/pedestrian access at West End Lane, Stickney. Location of
development: — OS Sheet No 90.6, Field No 10pt Grid Reference No 534450 358580’
It is to be
noted that this permission refers to Field No 10pt, whereas the application
referred to ‘Plots 9 and 10’. The permission stated that the subsequent
approval of the district planning authority was required as respects some such
matters as siting, design, landscaping etc.
At p4 of the
transcript, the judge continues the story:
On November
30 1977 an application was submitted to the district council as respects the
matters which had been reserved in the outline planning permission. In this
application the location of the land was simply referred to as West Fen Lane,
Stickney, Boston, Lincs, grid reference …
–which was
given–
The
application was accompanied by drawing 770/5/77/C–enclosure SJC3. The drawing
showed the plans and elevations of the proposed bungalow and as well, in the
bottom half of SJC3: (i) a block plan showing the bungalow located on enclosure
9 of the OS plan and immediately (as I see it) to the west of enclosure 10, and
(ii) at the top of SJC3, a sketch which appears to show the land the subject of
the application as being in part on enclosure 9, in part in enclosure 10 and in
part in enclosure 11. Approval of the reserved matters was forthcoming on
December 2 1977. The approval is
(as in the outline planning permission) ‘OS sheet No 90.6 Field No 10pt, grid
reference’ …
and that was
given.
The
restriction as to agricultural occupancy is repeated.
With this
December approval received it seems that the building of the Paddocks went
ahead. It is now realised that the bungalow was not being placed on the
location suggested in the application plan or by the application form or on the
locations shown in SJC3. Evidence was given by a chartered surveyor, Mr
Christopher Job [frics].
The judge then
recounts that, among other things, Mr Job was able to draw attention by the use
of transparent overlays to some features referred to in the application plan
and the undercover planning documents. At p5 the judge says:
It is clear
from the overlay and from Mr Job’s cross-examination that the bungalow is about
90 ft somewhat westerly of the location as approved by the district council;
and it is plain that, as the bungalow now stands, it is wholly within enclosure
9.
The judge
continues:
Mr Mitchell
appeared for the plaintiffs. He submitted that the agricultural occupancy
restriction is not binding on the Paddocks. The restriction would affect, he
said, a bungalow built on land for which planning permission was given. But the
Paddocks is not a bungalow built pursuant to any planning permission. It has
been built on land away from that in respect of which the planning permission
was to operate. He accepted, as I understand, that that meant that the Paddocks
was built in breach of planning control. Since the limitation period for
enforcing planning control has passed the bungalow may remain in being; but as
such it is not, he said, affected by the occupancy restriction because that
restriction is a term of a planning permission that has no relevance to the
Paddocks as being a building put up without planning permission.
It is apparent
from the judgment that against that Mr Graham Machin, appearing for the
respondents, placed reliance on the case of Kerrier District Council v Secretary
of State for the Environment (1980) 41 P&CR 284. In that case planning
permission had been given for the erection of a bungalow, but it was not built
in accordance with the approved plan in that a basement, not shown on the plan,
was included within the bungalow. The planning permission included an
agricultural occupancy restriction. The Divisional Court consisted of Lord Lane
LCJ and Lloyd J, as he then was. It held:
allowing the
appeal, that the fact that something had done without planning permission in
the sense that it did not comply with a permission that had been granted did
not mean that the permission that had been granted had to
any condition subject to which it had been granted should not bite; that
nothing in Section 87 of the Town and Country Planning Act 1971 obliged a local
planning authority to serve an enforcement notice if it did not wish to do so,
nor, if there were two several breaches, ie a development without planning
permission and a breach of a condition subject to which the permission had been
granted, was it obliged to enforce both, and that, in the present case, the
enforcement notice having been clear and unambiguous in its terms as to the
breach alleged and as to the steps required to be taken to remedy it, there had
been no justification for quashing it.
The vital part
of the judgment of Lord Lane (with which Lloyd J agreed) for the purposes of
this case is to be found on p288. Lord Lane said:
The matter is
put well in an affidavit filed on behalf of the council on their application for
an extension of time for leave to appeal as follows:
‘It is a
matter of considerable concern for the applicant, and no doubt other local
planning authorities would share that concern, that where an agricultural
occupancy condition is attached to a planning permission for a dwelling and
that permission would not have been granted without such a condition, the
developer may be able to avoid the operation of the condition by constructing a
building which does not conform with the submitted plans. In some cases the
departure from the plans may not be immediately apparent upon inspection of the
building. After the lapse of four years from the date of completion of the
building the local planning authority has no power to require its demolition or
alteration.’
We approach
the question first as a matter of principle. The reasoning of the Secretary of
State comprises four steps: (1) the dwelling-house actually built differed
materially from that shown on the approved plan; (2) therefore, it was built
without planning permission; (3) therefore, the planning permission was never
implemented; (4) therefore, the condition never applied.
Step (1)
involves a finding of fact that does not appear anywhere in the Inspector’s
report. It is the starting point of the allegation of breach of natural
justice, to which we shall return briefly later. Step (2) is well established
law. Steps (3) and (4) involved, as it seems to us, a non sequitur .
When one speaks of something being done without permission, it may mean one of
two things. It may mean that no permission has ever been granted at all, or it
may mean that permission has been granted but that which has been done has not
complied with that permission. The fact that something is done without
permission in the latter sense does not mean that the permission must be
treated as a nullity, and if it is not a nullity, we see no reason why any
condition the subject of which permission has been given should not bite. The
error in the Secretary of State’s reasoning may lie in his reference to the
planning permission never having been implemented. Implementation is not, as we
understand it, a term of art in this connection. In one sense, the planning
permission plainly was implemented since without the planning permission the
house would never have been built at all. Having relied on the permission to
build a house, it would seem strange that the occupiers should not be bound by
the condition, particularly if it was by reason of their own default that the
plans were not complied with. If the house had
They can hardly be in a better position because the house did not comply with
the plans. Two blacks do not make a white in this or any other branch of the
law.
Having cited a
large part of that passage, the learned judge said at p8F of the judgment:
I accept that
the Paddocks was built without permission. It was built without permission in
the sense that a permission was granted, but that what was then done did not
comply with that permission. In that situation I respectfully agree with Lord
Lane that the permission ought not to be treated as a nullity. That being so
there is no reason why the occupancy restriction should not be enforceable.
Accordingly, I answer the preliminary issue in the affirmative.
In the court
below the argument for the appellant in reply to the Kerrier authority
was that Kerrier was distinguishable because there the departure from
the terms of the planning permission was simply a matter affecting the interior
parts of a building built on the very site for which planning permission was
given, while here the building had, on the judge’s finding, been built (as Mr
Mitchell put it) ‘as much as 90ft away’. Mervyn Davies J, while accepting the
departure was of greater degree, did not accept that there was a distinction in
the principle.
I turn to
consider the way the matter has been put for the appellants in this court by Mr
Howell. He has helpfully taken us to a number of provisions of the Town and Country
Planning Act 1971, the first of those being section 22(1):
In this Act,
except where the context otherwise requires, ‘development’, subject to the
following provisions of the section, means the carrying out of building,
engineering, mining or other operations in, on, over or under land, or the
making of any material change in the use of any buildings of other land.
Section 23(1)
reads:
Subject to
the provisions of this section, planning permission is required for the
carrying out of any development of land.
Section 33(2)
reads:
Where
planning permission is granted for the erection of a building, the grant of
permission may specify the purposes for which the building may be used; and if
no purpose is so specified, the permission shall be construed as including
permission to use the building for the purpose for which it is designed.
Mr Howell
points out that that latter provision is important in the context of this case
because if the permission does not cover the building,
29(1):
Subject to the
provisions of sections 26 to 28 of this Act, and to the following provisions of
this Act, where an application is made to a local planning authority for
planning permission, that authority, in dealing with the application, shall
have regard to the provisions of the development plan, so far as material to
the application, and to any other material considerations, and–
(a)
subject to sections 41 and 42 of this Act, may grant planning permission,
either unconditionally or subject to such conditions as they think fit; …
Section 25
reads:
Any
application to a local planning authority for planning permission shall be made
in such manner as may be prescribed by regulations under this Act, and shall
include such particulars, and be verified by such evidence, as may be required
by the regulations or by directions given by the local planning authority
thereunder.
Mr Howell then
diverted to the Town and Country Planning (General Development) Order 1977,
article 5 (2):
Where an
applicant so desires, an application may be made for outline planning
permission for the erection of a building and, where such permission is
granted, the subsequent approval of the local planning authority shall be
required to such matters (being reserved matters as defined) as may be reserved
by condition. The application shall be made on a form, as required by the
preceding paragraph, shall describe the development to which it relates, shall
be accompanied by a plan sufficient to identify the land to which it relates
(together with such additional copies, not exceeding three, of the form and
plan as may be required by the local planning authority) and may contain such
further information (if any) as to the proposal as the applicant desires:
He stresses
the words there ‘sufficient to identify the land’. He took us back to the Town
and Country Planning Act 1971 and in particular to section 27(1):
Without
prejudice to section 26 of this Act, a local planning authority shall not entertain
any application for planning permission unless it is accompanied by any one or
other of the following certificates …
I need only
read (b):
a certificate
stating that the applicant has given the requisite notice of the application to
all the persons (other than the applicant) who, at the beginning of the period
of twenty-one days ending with the date of the application, were owners of any
of the land to which the application relates, and setting out the names of
those persons, the addresses at which notice of the application was given to
them respectively, and the date of service of each such notice.
Mr Howell says
that illustrates the importance of identifying the land.
He went on to
argue that the second reason for knowing the land to which the permission
relates is to be found in section 33(1):
Without
prejudice to the provisions of this Part of this Act as to the duration,
revocation or modification of planning permission, any grant of planning
permission to develop land shall (except in so far as the permission otherwise
provides) enure for the benefit of the land and of all persons for the time
being interested therein.
‘Enure for the
benefit of the land’–Mr Howell’s point is that the permission runs with the
land. Because of that feature, you are looking to see not the intention of the
parties but the effect of the permission. Hence, he says, under section 34(1)
and (2)(a) a register is required to be kept. That is:
a register
containing such information as may be so prescribed with respect to applications
for planning permission made to that authority, including information as to the
manner in which such applications have been dealt with …
Finally, he
took us to section 87(3), which reads:
There is a
breach of planning control–
(a) if
development has been carried out, whether before or after the commencement of
this Act, without the grant of the planning permission required in that behalf
in accordance with Part III of the Act of 1962 or Part III of this Act; or
(b) if
any conditions or limitations subject to which planning permission was granted
have not been complied with.
Turning to his
skeleton argument, he said by way of submission in para 10:
That the
learned judge was right to hold that a building constructed otherwise than in
accordance with the terms of a planning permission (including any details
properly approved pursuant to a condition imposed on that permission) is not
authorised by it and, therefore that the Paddocks was built without permission.
The planning permission granted did not authorise the building constructed and
accordingly the works involved were not permitted and were unlawful.
That is what
the judge found as I see it and I agree with it. Mr Machin, for the
respondents, specifically conceded that this paragraph is accurate. In the next
paragraph, Mr Howell says:
If a
permission does not apply, then the condition subject to which it was granted
has no application. In this case, therefore, the agricultural occupancy
condition did not apply to the Paddocks as the permission on which the
condition was imposed did not apply to it.
To my mind,
that follows from para 10. However, Mr Machin says that it did apply to it
because it was built sufficiently close for there to be a
incomprehensible that he could go on to submit that further point.
Mr Howell then
devoted his attention to criticising the decision in Kerrier District
Council v Secretary of State. He submits that one of the troubles
there was that, so far as one can see, the court was not referred to two
important and relevant previous decisions in cases to which I shall refer. He
is unable to say with certainty that they were not cited to the court. All that
he can say is that they are not referred to in the judgment.
The first of
those cases is Noble v Armitage [1962] EGD 534 a decision of the
Divisional Court. I need do no more than read this short passage from the first
judgment, given by Lord Parker CJ the other two judges agreeing with him.
The short
point here is really whether that enforcement notice is a good and sufficient
notice. The point that is taken is that it is nowhere recited or alleged that
the development for which permission was given was ever carried out, and
accordingly there can be no breach of a condition attached to a development
until the development is carried out. For my part, I think it is necessary, and
it certainly follows the cases, to which I need not refer, that in an
enforcement notice alleging a breach of condition the development in question
must be recited and referred to. Here, it is to be observed that what is
recited is merely that planning permission was granted for the storage of coal
and parking of lorries. It does not go on to say that coal has been stored and
lorries parked, but that the conditions have not been complied with. On that
short ground, and that alone, I would allow this appeal and send the case back
to the justices with a direction that they should acquit.
The other
decision is Sheppard v Secretary of State for the Environment [1975]
EGD 837, a decision of Willis J. It is only necessary for me to read one short
passage from Willis J’s judgment at p848:
it is clear
from a number of cases dealing with enforcement notices that a planning
authority cannot succeed for breach of condition unless the development to
which it was attached by the planning permission has actually been carried out.
In my
judgment, in the light of those previous decisions, there is force in Mr Howell’s
contention that the reasoning of the Divisional Court in Kerrier is
flawed.
He has a
further point to make upon it however. What he says is:
works which
do not comply with the permission and any conditions to which it is subject do
not constitute the implementation or commencement or a planning permission.
He continues:
A permission
is not implemented in any sense when something is done which the permission
does not authorise merely because it would not have been done if permission had
not been granted.
He relies here
on the decision of the Court of Appeal in FG Whitley & Sons Co Ltd v
Secretary of State for Wales [1992] 3 PLR 72. To make the point, it will
suffice if I read one short passage from the judgment of Woolf LJ at p80:
As I
understand the effect of the authorities to which I am about to refer, it is
only necessary to ask the single question: are the operations (in other
situations the question would refer to the development) permitted by the
planning permission read together with its conditions? The permission is
controlled by and subject to the conditions. If the operations contravene the
conditions they cannot be properly described as commencing the development
authorised by the permission. If they do not comply with the permission they constitute
a breach of planning control and for planning purposes will be unauthorised and
thus unlawful. This is the principle which has now been clearly established by
the authorities. It is a principle which I would have thought made good sense
since I cannot conceive that when section 41(1) of the 1971 Act made the
planning permission deemed subject to a condition requiring the development to
be begun by a specified date, it could have been referring to development other
than that which is authorised by the permission.
It seems to me
that that authority fully supports Mr Howell’s contention.
Mr Howell then
makes the point that what underlay the decision in the Kerrier case was
the fear that if it went the other way, the wrongdoer would get a benefit. I have
some sympathy with that contention. But, Mr Howell says that on a correct
analysis of the situation, the wrongdoer is actually worse off because he has
no permission to use the building and the local planning authority could serve
an enforcement notice to prevent any use of the building by alleging that there
had been an unpermitted change of user. I would accept that contention.
Last, Mr
Howell submits that Kerrier is in any event distinguishable. He puts it
in this way in his skeleton argument:
The building
constructed was on the approved site: it merely included an unapproved
basement. In this case the Paddocks was constructed outside the application
site and not in the position which the local planning authority subsequently
purported to approve. An outline application was required to ‘be accompanied by
a plan sufficient to identify the land to which it relates’. The identification
of that land is of significance as ‘any grant of planning permission to develop
the land shall (except in so far as the permission otherwise provides) enure
for the benefit of the land and of all persons for the time being interested
therein’. Similarly, a planning condition is a local land charge which is to be
registered by reference to the land affected by it.
He drew our
attention to section 5(3) of the Local Land Charges Act 1975. If it were
necessary, therefore, I would agree with this point also that Kerrier is
in any event distinguishable.
It follows
that I accept the contentions of Mr Howell. In my judgment, the Kerrier
case was wrongly decided. I would answer the question raised in the present
case in the negative and I would allow the appeal.
Peter Gibson LJ:
The judge below very understandably followed the decision of the Divisional
Court in the Kerrier case. Although we are differing from the
distinguished judges who constituted that court, I am wholly persuaded by the
inexorable logic of Mr Howell’s lucid argument that that decision cannot stand.
If a development does not comply in a material respect, or to a material
extent, with the planning permission which has been granted, I cannot see how
an occupancy condition attached to the permission for the development which was
not carried out can have application to the unauthorised development which was
carried out. For this reason, and for the reasons given by McCowan LJ, I, too,
would allow this appeal.
Sir John May: I
agree with both the judgments which have been delivered. Although we are
holding with the decision of the Divisional Court in this case of Kerrier
to have been wrong, I do not think I need add anything on my own account.
Appeal
allowed.
