Planning permission for erection of bungalow — Condition requiring existing bungalow to be demolished or occupied by agricultural worker — Condition not complied with — Enforcement notice issued more than four years after date for compliance — Whether condition ‘relates to the carrying out of operational development’ — Whether enforcement notice valid
Following the
grant of planning permission in November 1961 a bungalow (‘the new bungalow’)
was erected on Goitre Farm, St Mellons, Monmouthshire. In September 1974
planning permission was granted for a second bungalow (‘the replacement
bungalow’) on the farm subject to a condition that the new bungalow be
demolished or used for the purpose of agriculture other than as a dwelling
within one month of the beneficial use of the replacement bungalow. The
replacement bungalow was constructed and occupied by November 5 1977. The new
bungalow was sold and eventually came to be occupied by the appellant; the
condition was never complied with.
In September
1985 the second respondents, Cardiff City Council, issued an enforcement notice
alleging a breach of planning control by reason of the failure to comply with
the planning condition. The appellant appealed contending that the enforcement
notice was invalid by reason of having been issued more than four years after
the alleged breach: see section 87(4)(b) of the Town and Country
Planning Act 1971 (section 172(4)(b) of the Town and Country Planning Act
1990). The appellant’s appeal against the decision of the inspector to uphold
the enforcement notice was dismissed by Sir Frank Layfield QC (sitting as a
deputy judge of the Queen’s Bench Division). The appellant appealed contending
that the condition related to operational development and the enforcement
notice had therefore been served after the time-limit of four years.
For the
purposes of section 87(4)(b) of the Town and Country Planning Act 1971,
the real question is whether any condition or limitation relates to the
carrying out of operational development and not whether the condition required
some operational development: see p 5A. In the present case planning permission
was granted for the erection of the replacement bungalow; this was a building
operation, section 87(4)(b) was satisfied and the enforcement notice was
invalid by being served after the expiration of the four year time-limit. For
the purposes of this subsection the condition or limitation does not itself
have to contain or involve operational development: see p 7.
to in the judgments
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)
56 LGR 171; 9 P&CR 204, CA
Appeal against
decision of Sir Frank Layfield QC
This was an
appeal from a decision of Sir Frank Layfield QC (sitting as a deputy judge of
the Queen’s Bench Division), who had dismissed an appeal against the
decision of the first respondent, the Secretary of State for Wales, by his
inspector, who had dismissed an appeal against an enforcement notice issued by
the second respondents, Cardiff City Council.
(instructed by Hopkins & Wood, for Edwards Geldard, of Cardiff) appeared
for the appellant, Frederick Harvey.
Drabble (instructed by the Treasury Solicitor) appeared for the first
respondent, the Secretary of State for Wales.
respondents, Cardiff City Council, did not appear and were not represented.
following judgments were delivered.
MUSTILL LJ:
I will ask Sir Michael Kerr to give the first judgment.
SIR MICHAEL
KERR: This is an appeal from Sir Frank Layfield QC
(sitting as a deputy judge of the Queen’s Bench Division), arising from a
judgment delivered on July 26 1988. It relates to certain buildings on land
known as Goitre Farm, St Mellons, [formerly] 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 dwellinghouse
‘in place of dwelling adversely affected by proposed motorway’, and then goes
on:
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.
One 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):
(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
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 jun) 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 the
12th September 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 2(1) below.
The breach of planning control which appears to have taken place 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 dwellinghouse 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 for Wales 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
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
subsection (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 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 of the transcript:
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 the condition required some operational
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 is 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
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
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 section 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 does not relate 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 the Peacock case 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
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 the Peacock case 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 the Peacock
case, 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.
FARQUHARSON
LJ: I agree.
MUSTILL LJ:
I also agree.
Appeal
allowed with costs.
