Town and country planning – Enforcement notice – Stop notice – Respondent local authority granting planning permission subject to several pre-commencement conditions – Development commencing in breach of conditions – Respondent issuing stop notice imposing restriction on operational development authorised by permission – Appellant claiming compensation under section 186 of the Town and Country Planning Act 1990 – Upper Tribunal deciding as preliminary issue that appellant prevented from claiming compensation – Appellant appealing – Whether statutory exclusion of compensation for loss arising from prohibition in stop notice of “breach of planning control” activity applying – Appeal dismissed
In 2006, the respondent local authority granted planning permission for development of residential accommodation units on land at Lound Hall, Colliery Access Road, Bothamsall, described in the decision notice as a “change of use of land for siting holiday lodges”. The planning permission was subject to 24 conditions, including one restricting the use of the lodges to “holiday accommodation only”, and 15 requiring various details to be submitted and approved by the respondent, 12 of which required such approvals before development commenced. Development was subsequently carried out on the site before the pre-commencement conditions had all been complied with.
The respondent issued an enforcement notice on 27 October 2009, which was followed by a stop notice served on 19 November 2009, but was quashed by an inspector on appeal on 8 June 2010. On 7 June 2011, the appellant made a claim for compensation under section 186 of the Town and Country Planning Act 1990.
The Upper Tribunal decided, as a preliminary issue, that section 186(5)(a) of the 1990 Act prevented him from pursuing his claim for compensation under section 186 for loss said to have been caused by the stop notice served by the respondent in the course of enforcement action against alleged breaches of planning control involving the development. The tribunal rejected the appellant’s argument that section 186(5)(a) did not apply in this case because, while the stop notice was in force between 19 November 2009 and 8 June 2010, he could have complied with the conditions imposed on the 2006 planning permission by applying for and obtaining the outstanding approvals required.
Held: The appeal was dismissed.
(1) Section 186(2) created an entitlement to compensation “in respect of any loss or damage directly attributable to the prohibition contained in the notice …”. Such compensation had to be for ascertainable loss, and the loss had to be directly attributable to the prohibition in the stop notice itself, not to some other cause. The scheme for compensation here was consistent with the reality principle. It was predicated on there being, in the relevant period, some actual loss, not a hypothetical one. It required the tribunal to grapple with the circumstances as they actually were while the stop notice was in force, not with some other, imaginary scenario.
Section 186(5)(a) excluded compensation being paid for the prohibition in a stop notice of any activity that, when the notice was in force, constituted or contributed to a breach of planning control. Compensation was not to be paid for an activity prohibited by a stop notice if, while the notice was in force, that activity would be, or would contribute to, a breach of planning control. The subsection did not distinguish between different breaches of planning control. If Parliament had intended to exempt from the exclusion in section 186(5)(a) compensation for loss caused by a prohibition on development being carried out in breach of a pre-commencement condition, or any other type of planning condition, it could have done so.
(2) A breach of planning control did not cease to be a breach of planning control merely because it could be overcome. And the statutory scheme did not yield an entitlement to compensation for the prohibition by a stop notice of an activity that involved a breach of planning control. The crucial point in this appeal was simply that, on the day when the stop notice came into force and from then until the day on which it ceased to be in force, the development it required to cease fell within the exclusion in section 186(5). Throughout that period it could be rightly said that such development “constitutes or contributes to a breach of planning control”.
(3) The effect of the prohibition in the stop notice was to bring about the cessation of an activity described, in clear terms, as “the introduction and siting of any further accommodation units, caravans, chalets and other structures onto the land”. That was the activity that the stop notice stopped. The fact that the activity identified in the stop notice would involve development that had not already occurred, and the fact that such development might not be in breach of planning control by the time it was carried out, did not matter. The requirement to cease an activity that had already begun, in breach of conditions on the May 2006 planning permission, was, in effect, a prohibition on a continuing activity that, at the time of the service of the stop notice, constituted or contributed to a breach planning control. The requirement to “cease” that activity was appropriate. It was, in effect, a requirement to refrain from continuing to develop the land in breach of planning control. If the pre-commencement conditions had all been discharged while the notice was in force, the exclusion of compensation in section 186(5)(a) would then have been lifted but that had not happened. It followed that in this case the exclusion of compensation in section 186(5)(a) applied and the appeal failed.
(4) The entitlement to compensation under section 186(2) was strictly confined to loss and damage “directly attributable to the prohibition contained in the notice …”. In this case, however, the “loss”, even if there had been any, would not have been “directly attributable” to the prohibition in the stop notice, but to the conditions on the planning permission themselves, the failure of the landowner to seek and obtain the requisite approvals to discharge them in a timely way, and his decision not to carry out any further development in breach of condition while the stop notice was in force. On that analysis also, there would have been no entitlement to compensation under the statutory scheme and no relevant loss occurred.
Jonathan Wills (instructed by OCL Solicitors, of Doncaster) appeared for the appellant; Jonathan Mitchell and Matthew Barnett (instructed by Bassetlaw District Council) appeared for the respondent
Eileen O’Grady, barrister
Click here to read a transcript of Huddlestone v Bassetlaw District Council
