Town and country planning – Breach of planning control – Defence – County court granting respondent local planning authorities injunction to prevent appellant from keeping vehicles on land without planning permission or written consent of second respondent – Appellant appealing – Whether appellant entitled to rely on 10-year period for immunity from prosecution for breach of planning control – Appeal dismissed
The appellant owned Sandpit Farm, on the western side of Croft Lane, near Thurlaston, Leicestershire. There was a grass verge adjacent to the farm on both sides of the lane. After the appellant moved there in 2002, the farm had been subject to planning enforcement action at various times. After moving in, the appellant accumulated and stored a wide variety of vehicles and equipment on his farm. The presence of such vehicles and equipment was treated as a commercial use for which the appellant did not have planning permission. An enforcement notice was issued. He did not comply with it and was later convicted of an offence of breaching planning control.
In 2021, the respondent authorities carried out inspections of the verges and concluded that the appellant was using them as a storage area for vehicles which amounted to a change of use for which planning permission had not been obtained. The county court granted the respondents an injunction, under section 187B of the Town and Country Planning Act 1990, to prevent the appellant from keeping any vehicle on the land without the grant of planning permission or the written consent of the second respondent district council.
The appellant appealed, arguing that the planning breach complained of related to a state of affairs which had persisted for more than 10 years before the enforcement action was taken so that he was entitled to statutory immunity. (The appellant appeared in person before the county court assisted by a McKenzie friend.)
Held: The appeal was dismissed.
(1) Section 171B(3) of the 1990 Act provided that no enforcement action might be taken with respect to certain breaches of planning control, including those alleged in the present case, “after the end of the period of 10 years beginning with the date of the breach”. The 10-year period had to be continuous. In the instant case, the claim form was issued on 19 November 2021 so that, to provide immunity, the continuous period relied upon must have started on or before 19 November 2011: Swale Borough Council v First Secretary of State [2005] EWCA Civ 1568; [2006] PLSCS 19 considered.
(2) The court did not accept that the respondents’ counsel should have referred to the possibility of the section 171B defence in his skeleton argument at trial out of fairness to a litigant acting in person. Pursuant to the Bar Standards Board Handbook version 4.3, counsel were obliged to take reasonable steps to ensure that the court had before it all relevant decisions and legislative provisions. There was no formal professional obligation to have all reasons for and against the defence explained to the trial judge. However, such a course might, on the facts of any given case, be consistent with the obligation imposed by CPR 1.3 requiring the parties to help the court to further the overriding objective to deal with cases justly.
In the present case, it was not discernible either from the evidence or the way in which the appellant had presented his case prior to closing submissions that the 10-year rule was relevant to the court’s determination. It was only with the benefit of hindsight that the potential relevance of section 171B(3) could be categorised as one to which the attention of the court ought to have been drawn. Even taken at their highest, the obligations imposed on the respondents or their counsel, whether by the application of the Civil Procedure Rules or the relevant professional standards, against the background of this case, were not so stringent as to require them to put before the court the statutory provision relating to the 10-year rule, still less to articulate all reasons for and against that defence.
In any event, it was expressly admitted that both the court and the appellant knew about the ten-year rule because the appellant referred to it, albeit for the first time, in his closing submissions. Accordingly, the judge had been made aware of the relevant legislative provisions.
(3) Notwithstanding the fact that the appellant knew about the 10-year rule, he chose not to make any reference to it until raising the point during closing submissions and after the evidence had concluded. The appellant chose not to give evidence himself notwithstanding the fact that the burden of proof lay upon him to establish that he could take advantage of the rule. It was only referred to in closing speech in the scattergun deployment of many other contentions of varying relevance. In the circumstances, it was unsurprising that the judge did not make reference to the 10-year rule in his judgment.
When the point was given greater prominence during the application for permission to appeal, the judge explained why he had not dealt with the point and, importantly, clarified that his finding that the change of use started in about 2015 and was increased in about 2021. He was entitled to make that finding and, in the circumstances, it was open to him to do so in response to and in the context of an application for permission to appeal. Furthermore, the material before the court fell far short of demonstrating, on a balance of probabilities, that the storage of vehicles on the verge had persisted continuously for over ten years: see English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409.
(4) Furthermore, none of the documents drawn to the court’s attention during the hearing of the appeal had been deployed by the appellant during the course of argument on his behalf at trial. That was not surprising. None of them, taken singly or together, unambiguously established a continuous breach to discharge the burden of proof on the issue.
The appellant could have given oral evidence to support the application of the 10-year rule but he chose not to do so. That was a legitimate tactical decision but he had to live with the consequences. His central point was that there had been no storage of vehicles at all but merely parking. It was thus understandable that he would not wish to undermine the thrust of that contention by arguing, in the alternative, that if it were storage then it had gone on continuously for ten years.
Barney McCay (acting through Advocate) appeared for the appellant; Jack Smyth (instructed by Blaby District Council) appeared for the respondents.
Eileen O’Grady, barrister
Click here to read a transcript of Leicestershire County Council and another v Miles
