Town and Country Planning Act 1971 — Enforcement notice — Whether notice invalid because issued out of time — Four-year time-limit from date of breach of condition — Construction of section 87(4)(b) of 1971 Act as amended by the Local Government and Planning (Amendment) Act 1981 — Appeal from decision of Sir Frank Layfield QC, sitting as a deputy judge of the Queen’s Bench Division — Peacock Homes Ltd v Secretary of State for the Environment considered — Appeal allowed
permission had been granted in 1974 for a ‘replacement bungalow’, replacing an
existing bungalow which had been adversely affected by a proposed motorway —
This permission was subject to a condition that the existing bungalow should be
demolished or used for the purpose of
one month of the occupation of the replacement bungalow — In fact the condition
was not fulfilled, so that a breach occurred on or about December 5 1977 —
After a period during which the bungalow was unoccupied, it came into the hands
of the present appellant, who used it for residential purposes, contrary to the
planning condition — He was served with an enforcement notice in 1985 requiring
cessation of the residential use — After a public inquiry and a decision of the
Secretary of State upholding the notice, the case came before Sir Frank
Layfield QC, who dismissed the appellant’s motion — Hence the present appeal
87(4)(b) of the Town and Country Planning Act 1971 (as amended) provides that
an enforcement notice alleging a breach of planning control, consisting in
failure to comply with a condition which relates to the carrying out of
building, engineering, mining or other operations, may be issued only within
the period of four years from the date of the breach — The only point in the
appeal was the time-limit of the enforcement notice, as the court found it
unnecessary to consider a criticism of the Secretary of State’s decision based
on the Wednesbury principles — The crucial question was whether the failure to
comply was one which, in the words of section 87(4)(b), ‘relates to the
carrying out of such operations and subject to which planning permission was
granted for the development of that land’ — In other words, did the condition
requiring demolition or agricultural use ‘relate to’ the carrying out of what
might be called operational development? — Sir Frank Layfield answered ‘no’, on
the ground that neither demolition nor agricultural use constituted operational
development — He treated section 87(4)(b) as requiring that the breached
condition must itself contain or involve some operational requirement — But the
real question was whether the condition ‘related to’ the carrying out of such
development — Clearly the condition that the replaced bungalow should be either
demolished or used only for agricultural purposes ‘related to’ operational
development for which planning permission was granted, namely the construction
of the replacement bungalow
held that Sir Frank Layfield’s consideration of the present case seemed to have
been ‘overshadowed’ by the decision in Peacock Homes Ltd v Secretary of
State for the Environment and led him to give too narrow a meaning to the words
‘relates to’ in section 87(4)(b) — The court rejected a still narrower meaning
suggested by the respondents, namely, that it must concern the ‘carrying out’
of the operational development in the literal sense of the actual construction
of the building — Held, allowing the appeal, that the enforcement notice was
served out of time and was therefore invalid
The following
cases are referred to in this report.
Newbury
District Council v Secretary of State for the
Environment [1981] AC 578; [1980] 2 WLR 379; [1980] 1 All ER 731; (1980) 78
LGR 306; 40 P&CR 148; [1980] JPL 325, HL
Peacock
Homes Ltd v Secretary of State for the
Environment (1984) 83 LGR 686; 48 P&CR 20, CA
Pyx
Granite Co Ltd v Ministry of Housing and Local
Government [1958] 1 QB 554; [1958] 2 WLR 371; [1958] 1 All ER 625; (1958)
LGR 171; 9 P&CR 204, CA
This was an
appeal by Frederick Harvey from the decision of Sir Frank Layfield QC, sitting
as a deputy High Court judge, affirming the decision of the first respondent,
the Secretary of State for Wales, who had upheld the decision letter of an
inspector declaring valid an enforcement notice served on the appellant by the
second respondents, Cardiff City Council.
Wyn L Williams
(instructed by Edwards Geldard & Shepherd, of Cardiff) appeared on behalf
of the appellant; Richard Drabble (instructed by the Treasury Solicitor)
represented both respondents.
Giving the
first judgment at the invitation of Mustill LJ, SIR MICHAEL KERR said:
This is an appeal from Sir Frank Layfield QC, sitting as a deputy judge of the
High Court arising from a judgment delivered on July 26 1988. It relates to
certain buildings on land known as Goitre Farm, St Mellons, in Monmouthshire.
The court has been provided with a statement of facts which are not in issue
and it is convenient to summarise the history.
There was a
farmhouse on this land prior to 1961, and in November 1961 the owner, Mr T B
Evans, obtained planning permission for the erection of a bungalow with a
garage for an agricultural worker. Pursuant to this permission a bungalow and
garage were constructed and were thereafter occupied by Mr L H Evans, the son
of Mr T B Evans. The building was subsequently referred to as the ‘new
bungalow’.
That remained
the position until the early 1970s when a new highway known as A48(M) was under
construction. It became clear to the highways department of the Welsh Office
that this would adversely affect the new bungalow because of its proximity to
it. Indeed, when the highway had been constructed its edge was within 10m or so
of the new bungalow boundary.
In May 1974 Mr
T B Evans (Mr Evans snr) thereupon sought two further planning permissions.
First, he wanted to build a replacement farmhouse. Second, he wanted to build a
bungalow (subsequently called the ‘replacement bungalow’) in place of the new
bungalow. Both permissions were granted by the Cardiff City Council on
September 11 and 12 1974. But for the purpose of this case we are concerned
with the permission to build the replacement bungalow on the latter date. It
recites Mr Evans’ application for planning permission to build a dwelling-house
‘in place of dwelling adversely affected by proposed motorway’, and then goes
on as follows:
The CARDIFF
CITY COUNCIL, . . ., in pursuance of its power under the Town and Country
Planning Act 1971 hereby PERMITS the development to be carried out . . .
subject to compliance with the conditions specified hereunder.
Condition (e),
to which Mr Drabble has drawn attention, provided that the replacement bungalow
was to be occupied only by a person employed in agriculture. However, the
condition with which we are concerned is condition (f) in the following terms:
(f) The existing farmhouse shall be demolished
or used for the purpose of agriculture other than a dwelling to the
satisfaction of the Local Planning Authority, and within one month of the
beneficial use of the dwelling hereby approved.
What that means
is that the new bungalow was to be demolished or used for agricultural purposes
other than as a dwelling and that that was to happen within one month from the
occupation of the replacement bungalow whose erection was approved by this
permission.
The permitted
development was fully carried out. A new farmhouse and the replacement bungalow
were built. Mr L H Evans (Mr Evans jnr) occupied one and his, by then widowed,
mother occupied the other. The important date for present purposes is that Mr
Evans took up residence in the replacement bungalow on November 5 1977. It
therefore follows from the wording of condition (f) that by December 5 1977 the
original new bungalow had to be either demolished or used for agricultural
purposes. In the event neither occurred. It is, accordingly, common ground that
by about December 5 1977 there was a breach of condition (f) attached to this
planning permission. That, of course, leads to the question whether the
subsequent enforcement notice was served in time. But before coming to that I
will complete the history.
The new
bungalow remained empty, and in July 1980 it was purchased by the Welsh Office.
By that time views had begun to fluctuate as to the purposes for which it might
properly be used, and there was no longer any suggestion that it should be
demolished. It remained unoccupied and unused until it was sold by auction by
the Welsh Office in October 1982. It was then bought by the present appellant,
Mr Harvey, who took up residence in it in early 1984. That led to the serving of
a number of enforcement notices in 1985, because Mr Harvey was using the
bungalow for residential purposes contrary to one of the conditions attached to
the planning permission which Mr Evans had obtained.
Three
enforcement notices called A, B, and C were served in somewhat different terms.
But we are concerned only with notice B, which was upheld. It was issued, as
were the others, on September 4 1985 — long after four years from the date of
the breach. The operative paragraph of the notice was in the following terms:
. . . on
September 12 1974 the Council as Local Planning Authority . . . granted
permission for the development of land at Goitre Farm, St Mellons, Cardiff by
the carrying out of the building operations described in Schedule
consists in the failure to comply with the condition or limitation subject to
which the said permission was granted, described in Schedule 2(2).
Schedule 2(1),
headed ‘Details of planning permission’, says: ‘Permission to build
dwelling-house in place of dwelling (New Bungalow) adversely affected by . . .
motorway’. Schedule 2(2), headed ‘Conditions which have not been complied
with’, recited condition (f) which I have already set out. Schedule 3, setting
out the steps required to be taken pursuant to the enforcement notices,
required that the use of the premises for residential purposes should cease.
Reasons were given why the notice was served. These concerned the
undesirability of sporadic residential development in an agricultural area,
noise levels from the adjacent motorway, and other matters.
The three
enforcement notices were challenged, and a public inquiry was held in May 1986.
The report of the inspector quashed notices A and C but upheld notice B. The
matter then went to the Secretary of State and by a decision letter dated June
25 1987 he upheld notice B. The applicant then issued a notice of motion
challenging that decision. This came before Sir Frank Layfield QC, who
dismissed the notice of motion. Mr Harvey now appeals from that decision.
It is right to
stress that a substantial number of issues were argued below which have not
survived. The only ones which have survived for the purpose of this appeal are,
first, the question of the time-limit of the enforcement notice, which was of
course also argued below, and, second, a matter on which we found it
unnecessary to hear Mr Williams, whether the decision of the Secretary of State
to uphold the enforcement notice B could be criticised on Wednesbury
grounds. We have not heard him on this because we formed the view, after
hearing both counsel, that the enforcement notice was served out of time. The
argument on this issue was the same before us as it had been below; this was
common ground. But its real impact is not reflected in the judgment, perhaps
because there were a number of other issues.
In order to
see the point one has to go to section 87 of the Town and Country Planning Act
1971. It is common ground that if the four-year time-limit prescribed by that
section is applicable, then enforcement notice B was out of time, since it was
served well after four years from the date of the breach, which it is accepted
occurred in December 1977, as I have already mentioned. Section 87 defines an
enforcement notice and subsection (3) is in the following terms:
(3) 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 . . .; or
(b) if any conditions or limitations subject to
which planning permission was granted have not been complied with.
We are
concerned with (3)(b) for the reasons I have already explained.
Subsection (4) provides as follows so far as material:
(4) An enforcement notice which relates to a
breach of planning control consisting in —
(a) the carrying out without planning permission
of building, engineering, mining or other operations in, on, over or under
land; or
(b) the failure to comply with any condition or
limitation which relates to the carrying out of such operations and subject to
which planning permission was granted for the development of that land; . . .
may be issued
only within the period of four years from the date of the breach.
What has been
argued on behalf of Mr Harvey, but is not reflected in the judgment, is that
(4)(b) is satisfied in the following way. The crucial question which one
has to ask oneself, since there was admittedly a failure to comply with a
condition, is whether or not the condition — in this case the demolition of the
new bungalow or alternatively its use for agricultural purposes only, within a
prescribed time — is one ‘which relates to the carrying out of such operations
and subject to which planning permission was granted for the development of
that land’. Does the condition, requiring either demolition or agricultural
use, relate to the carrying out of operations which can in short be referred to
as ‘operational development’? That is
the key question. The learned judge, in the way in which he understood the
argument addressed to him, answered that question in the negative, because he
considered only the contents of the condition. These were either demolition or
agricultural use, neither of which he regarded as operational development. To
that extent his judgment is perfectly correct. He said at p 10, letter E:
The
circumstances of this permission do not I consider fall within ‘operational
development’. The condition itself requires one of two courses of action to be
taken. It first requires ‘demolition’, which I take not to be operational
development. Second, it requires that a particular use be instituted or
continued. The latter requirement I consider does not fall within the terms of
the subsection.
Accordingly,
what the learned judge was considering, and considering only, was the question
of whether or not the condition required some operational development. But that
is not the real point. The real question is whether or not any condition or
limitation ‘relates to the carrying out of’ what can shortly be described as
‘operational development’. Here it is said that the condition that — within the
time prescribed — the new bungalow be either demolished or used only for
agricultural purposes clearly related to operational development for which
planning permission was granted, namely the construction of the replacement
bungalow.
Put in that
way, it seems to me that there is simply no answer, both as a matter of first
impression of the wording of the section on the facts of this case and indeed
in the light of the terms of the planning permission and of condition (f)
itself.
What appears
to have happened is that the arguments and the judge’s consideration of the
case were overshadowed by the only reported decision on this provision — the
decision of this court in Peacock Homes Ltd v Secretary of State for
the Environment (1984) 83 LGR 686. The case was concerned with the lengthy
history of a warehouse building in Epsom. It was originally permitted to be
erected as long ago as July 1950 but subject to a condition that, unless the
time were extended, it would be demolished by the end of 1950. However, that
permission was extended on about six occasions, and the final extension did not
expire until March 31 1974. An enforcement notice was then served more than
four years later on the ground that the building had not been demolished by the
termination of the final extension. The question was whether section 87(4)(b)
applied to those facts, in which event the enforcement notice was out of time.
This court held that the enforcement notice was out of time because, to
paraphrase the ratio of the decision, the original erection of the bungalow had
been a permission for operational development, and the condition of demolition
by a certain time — albeit not itself operational development — was one which
related to a permission for operational development, the original erection of
the building. It was also held that for the purpose of arriving at that
conclusion it was permissible to treat all the extensions over a period of some
24 years as a single period.
So what one
had there was planning permission for operational development, the erection of
the warehouse building, subject to a condition which was not a condition
requiring or involving any operational development, namely the demolition of
the building, it being expressly held that demolition does not constitute
operational development. But the court nevertheless held that the relationship
between the non-operational condition, ie demolition, and the original
permission for operational development in the form of the erection of the
building satisfied section 87(4)(b), with the result that the
enforcement notice was out of time.
The leading
judgment was given by Dillon LJ, who reviewed the history of section 87 by
pointing out that, whereas before 1968 any enforcement notice had to be served
within four years, the time-limit thereafter applied only to situations in
which it would or should be relatively easy for local authorities to discover
whether there had been a breach of planning control or a breach of a condition
relating to planning permission. He dealt with that at p 690. At p 691 he said
this in relation to the wording of para (b):
The earlier
words in paragraph (b), ‘any condition or limitation’, are limited in their
scope in that they apply only to conditions or limitations which relate ‘to the
carrying out of such operations’, namely, building, engineering, mining or
other operations in, on, over or under land, or in other words ‘operational
development’. They do not extend to all conditions which might be imposed on a
grant of any planning permission.
What he had in
mind there, I think, having regard to the argument so far as I remember it from
the case, was that planning permissions merely involving changes of use, as
opposed to operational development, would not fall within the time-limit of
section 87. He then discussed the submissions advanced on behalf of the
Secretary of State to the effect that the time-limit did not apply to the
somewhat special facts of that case. He rejected those submissions at p 693 in
three paragraphs which contain the ratio of the decision. He said:
These
anomalous distinctions lead me to wonder whether the Secretary of State’s
interpretation of section 87(4)(b) can really be correct or whether there is
scope for a wider interpretation which would avoid such anomalies. The key
words ‘which relates to’ in the phrase ‘a condition or limitation which
relates to the carrying out of such operations’, are not words of art. They are
words often used in the Act, as in other statutes, in a very general sense, eg
in the opening words of sections 32(1) and 87(4) of the Act. They may often
mean little more than ‘which has to do with’.
Whatever else
the phrase may cover, it is appropriate, in my judgment, to cover the situation
in which a planning permission for a limited period is granted for the erection
of a building and its retention for the limited period subject to a condition
that at or before the end of the period the building will be removed. Such a
condition can fairly be said, in my judgment, to relate to the erection of the
building, which was only authorised for the limited period.
So equally,
if the limited period of the original permission for the erection of the
building is extended for a further period or periods subject to the same or a
similar condition, the condition can fairly be said, in my judgment, to relate
to the erection of the building. It matters not, as it seems to me, whether the
time limit of the condition is the original time limit or the time limit as
extended by one or more subsequent permissions.
In the present
case we are of course not concerned with any similar history. It is also to be
noticed that in that case the permission for operational development, namely
the permission to erect the building, related to the building which was itself
the subject-matter of the enforcement notice. In the present case, what is said
to be the permitted operational development relates not to the subject-matter
of the enforcement notice, the new bungalow, but to the erection of a different
building, the replacement bungalow. However, I cannot see that that makes any
difference. Indeed, as I follow Mr Drabble’s argument, that was not his
contention. But before I come to his contention I should just mention that Mr
Williams also helpfully drew attention to the decision of the House of Lords in
Newbury District Council v Secretary of State for the Environment
[1981] AC 578 in which it was restated that a condition attached to a grant of
planning permission is valid only if it relates to a permitted development, and
Mr Williams submits that ‘relates to’ in the present case has the same wide
meaning. He drew attention to a passage in the speech of Viscount Dilhorne at p
599 where he cites the well-known judgment of Lord Denning in Pyx Granite Co
Ltd v Ministry of Housing and Local Government [1958] 1 QB 554 where
he said at p 572:
Although the
planning authorities are given very wide powers to impose ‘such conditions as
they think fit,’ nevertheless the law says that those conditions, to be valid,
must fairly and reasonably relate to the permitted development.
That was the
phrase which Viscount Dilhorne approved.
However, what
Mr Drabble argued, if I may say so very lucidly, is that, despite the remarks
of Dillon LJ in Peacock which made it clear that the words ‘which
relates to’ have a wide meaning and may mean little more than ‘has to do with’,
on its true construction section 87(4)(b) has a much narrower scope. He
emphasised the words ‘carrying out’ in the phrase ‘which relates to the
carrying out of such operations’. He has to accept that in the present case the
condition of demolition or agricultural use of the new bungalow relates to the
operational development permitted by the construction of the replacement
bungalow. But what he says is that it does not relate to the ‘carrying out’ of
that operational development — that is to say, the actual construction of the
building. I do not myself accept that that invalidates the argument which has
been presented to us, and there is certainly nothing in the decision in Peacock
Homes which supports Mr Drabble’s narrow construction. He recognises that
himself, but submits that the first passage which I quoted from the judgment of
Dillon LJ at p 691 at any rate leaves it open that there may be some
distinction to be drawn on the lines which he suggests. However, I cannot
attach any such importance, as he would have, to the words ‘carrying out’ in
the phrase ‘which relates to the carrying out of such operations’. As Mr
Williams pointed out in his reply, when one looks, for instance, at the
definition of ‘development’ in section 22 of the Act one can see that
‘development’ is generally used in the context of the words ‘carrying out’.
Section 22(1) provides:
In this Act,
except where the context otherwise requires, development . . . means the
carrying out of building, engineering, mining or other operations
ie the carrying
out of what are compendiously known as ‘development operations’ or ‘operational
development’.
I have already
read the planning consent which expressly grants permission to carry out the
operation of building the replacement bungalow subject to condition (f), which
I have also already set out. Therefore, it seems to me that subsection 4(b)
is satisfied precisely. If anything, what Dillon LJ said at p 693 in Peacock,
about the width of the expression ‘which relates to’, supports Mr Williams’
argument.
The learned
judge, as I have explained, for some reason — probably because he had many
other issues to deal with — did not focus on that way of presenting the case,
and it is not discussed in his judgment. He appears to have thought that section
87(4)(b) requires that the broken condition or limitation must itself
contain or involve some operational development. But this is not so. The
condition or limitation merely has to relate to some (other) operational
development for which permission was granted subject to compliance with the
condition or limitation, whatever it may be.
Accordingly, I
would allow this appeal and hold that the enforcement notice was served out of
time and that it is therefore invalid.
MUSTILL and FARQUHARSON LJJ agreed and did not add anything.
The appeal
was allowed with costs here and below; decision remitted to the Secretary of
State for rehearing and determination in accordance with the opinion of the
Court of Appeal; application for leave to appeal to the House of Lords was
refused.
