Enforcement notice — Breach of condition — Planning permission for construction of farmhouse subject to agricultural occupancy condition — Condition not complied with — Enforcement notice issued more than four years after commencement of breach — Whether immune from enforcement under four-year rule — Whether a continuing breach
Planning
permission was granted on July 30 1984 for the construction of a farmhouse,
subject to a condition that occupation of the dwelling be limited to a person
employed or last employed in agriculture. The house was built and first
occupied by the second and third respondents, Mr and Mrs Marsh, on October 27
1986. The local planning authority took no steps to enforce the condition until
January 21 1991, when they issued an enforcement notice alleging a breach of
the condition. On an appeal against the notice, the inspector found that the
Marshs’ occupation of the dwelling did constitute a breach of the condition,
but he allowed the appeal and quashed the notice on ground (d) (before
amendment) in section 174(2) of the Town and Country Planning Act 1990 on the
basis that more than four years from the date of the breach had elapsed at the
date when the notice was issued. The planning authority appealed against the
decision to the High Court under section 289 of the 1990 Act, contending: (i)
that the inspector was wrong in holding that the four-year rule (in section
172(4)(b)1) applied to an occupancy condition attached to a grant of
permission to erect a building; and (ii) that the breach was a continuing breach.
The appeal was dismissed by the deputy judge, Mr Gerald Moriarty QC, who held
that the inspector had correctly applied the construction of section 172(4)(b)
adopted by the Court of Appeal in Harvey v Secretary of State for
Wales [1991] 2 PLR 1. The planning authority appealed.
1Town and Country Planning Act 1990, section 172(4): see post
pp 123H-124B.
LJ dissenting).
1. An
occupancy condition simpliciter did not ‘relate to’ the carrying out of
operational development within the meaning of section 172(4)(b). If, as the
respondents contended, Parliament had intended the four-year rule to apply to
all conditions properly attached to a planning permission for building
operations, the phrase ‘which relates to the grant of planning permission’ as
opposed to ‘which relates to the carrying out of such operations’ would be
appropriate: see p 125B-F. Harvey v Secretary of State for Wales
was distinguishable on its facts since the condition in that case requiring the
demolition of the old bungalow did directly relate
planning permission was granted. The occupancy requirement in Harvey was
no more than a corollary to the requirement to demolish: see pp 128D-129E.
2. However,
the deputy judge was correct in rejecting the alternative submission of the
appellants to the effect that the breach of planning control by Mr and Mrs
Marsh was a continuing breach, repeated day by day, and in holding that to give
effect to section 174(2)(d) it was necessary to treat the breach by occupation
in contravention of the condition as having occurred when that occupation
started: see p 130A-C.
Per Rose LJ: Harvey was binding on the court and was decisive of
the appeal. The fact that in Harvey the imposed condition contemplated
demolition as an alternative to agricultural use did not affect the argument.
In both cases the condition ‘related to the carrying out of’ operational
development, as distinct from development of a non-operational kind, such as a
change in the category of use: see pp 130E-131A.
Decision of Mr
Gerald Moriarty QC [1993] 1 PLR 150 reversed.
to in the judgments
Bonalumi v Secretary of State for the Home Department [1985] QB 675;
[1985] 2 WLR 722; [1985] 1 All ER 797, CA
Critchell
v Lambeth Borough Council [1957] 2 QB 535;
[1957] 3 WLR 108; [1957] 2 All ER 417, CA
Davis v Johnson [1979] AC 264; [1978] 2 WLR 553; [1978] 1 All ER
1132, HL
Harvey v Secretary of State for Wales (1989) 88 LGR 253; [1991] 2
PLR 1; 60 P&CR 152; [1990] JPL 420, CA
Morelle
Ltd v Wakeling [1955] 2 QB 379; [1955] 2 WLR
672; [1955] 1 All ER 708, CA
Peacock
Homes Ltd v Secretary of State for the
Environment (1984) 83 LGR 686; 48 P&CR 20, CA
Rickards v Rickards [1990] Fam 194; [1989] 3 WLR 748; [1989] 3 All ER
193, CA
Young v Bristol Aeroplane Co Ltd [1944] KB 718; [1944] 2 All ER
293, CA
Appeal against
decision of Mr Gerald Moriarty QC
This was an
appeal by Newbury District Council against the decision of Mr Gerald Moriarty
QC, sitting as a deputy judge of the Queen’s Bench Division, on January 27 1993
([1993] 1 PLR 150) dismissing an appeal by the council under section 289 of the
Town and Country Planning Act 1990 against a decision dated November 26 1991 of
the first respondent, the Secretary of State for the Environment, by his
inspector, whereby he had allowed an appeal by the second and third
respondents, Sydney Charles Marsh and Susan Angela Marsh, against an
enforcement notice issued by the council in respect of an alleged breach of an
agricultural occupancy condition relating to a farmhouse at Brewers Field Farm,
Tutts Clump, Bradfield, Berkshire.
(instructed by Sharpe Pritchard) appeared for the appellants, Newbury District
Council.
(instructed by the Treasury Solicitor) appeared for the first respondent, the
Secretary of State for the Environment.
Whybrow QC (instructed by Orchehill Chambers, of Gerrards Cross) appeared for
the second and third respondents, Mr and Mrs Marsh.
following judgments were handed down.
RUSSELL LJ: This is an appeal from an order of Mr Gerald Moriarty QC sitting as
a deputy judge of the Queen’s Bench Division who, on January 27 1993, [1993] 1
PLR 150, dismissed the appeal of Newbury District Council, the local planning
authority, which, pursuant to section 289 of the Town and Country Planning Act
1990, had challenged the decision of the Secretary of State for the Environment
by his inspector, in a decision letter dated November 26 1991, allowing the
appeal of the second and third respondents, Mr and Mrs Marsh, against an
enforcement notice dated January 21 1991.
The facts fall
within a small compass and can be shortly stated. On July 30 1984, the
appellant planning authority granted planning permission for the construction
of a farmhouse to replace a temporary mobile home on a site known as Brewery
Fields Farm, Tutts Clamp, Bradfield, Reading. Once of the conditions, subject
to which permission was granted read as follows:
The
occupation of the dwelling should be limited to a person employed, or last
employed, locally in agriculture as defined by section 290 (1) of the Town and
Country Planning Act 1971, or in forestry or a dependent of such a person
residing with that person (but including a widow or widower of such a person).
After
construction of the house Mr and Mrs Marsh went into occupation on October 27
1986. Thereafter neither occupant, as was to be found at a local inquiry,
fulfilled the requirements of the condition. The planning authority, however,
took no steps to enforce the condition until, on January 21 1991, they served
upon Mr and Mrs Marsh an enforcement notice, pursuant to the provisions of
section 172 of the Town and Country Planning Act 1990. The notice alleged a
breach of planning control by virtue of the occupation of the premises by a
person not employed, or not last employed, locally in agriculture, repeating
the terms of the condition. It required cessation of occupation otherwise than
in accordance with the condition.
Mr and Mrs
Marsh exercised their right of appeal and the inspector at the local inquiry
found against them in relation to their user of the premises. A breach of the condition
was established to his satisfaction. However, he went on to find that a period
in excess of four years had elapsed from the date of the breach of condition
before the enforcement notice was served and, accordingly, he found that the
enforcement notice was out of time, having regard to the provisions of section
172(4) of the 1990 Act.
The relevant
provision, section 172(4), provides as follows:
An enforcement
notice which relates to a breach of planning control
(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; or
(c) the making without planning permission of
a change of use of any building to use as a single dwellinghouse; or
(d) the failure to comply with a condition
which prohibits or has the effect of preventing a change of use of a building
to use as a single dwellinghouse,
may be issued
only within the period of four years from the date of the breach.
The inspector
held that the condition as to occupation ‘related’ to the carrying out of the
building operation and that it was a condition subject to which planning
permission had been granted for development as provided by subpara (b) of the
subsection. That being so, the enforcement notice had to be served within the
period of four years from the date when Mr and Mrs Marsh first occupied the
property in breach of the condition. The enforcement notice was not served
within that period and, accordingly, the notice had to be quashed. Upon appeal
to the High Court, that ruling was upheld by the learned deputy judge as
earlier indicated.
For the
appellant planning authority, Mr John Steel QC made a number of submissions to
the effect that both the inspector and the learned deputy judge had failed
properly to construe the terms of the statute as contained in section 172(4).
In a sentence, Mr Steel submits that a condition relating to occupation of the
premises does not ‘relate to the carrying out of [building] operations’, and
that only conditions which relate to the structure of the building, that is
conditions that have something to do with the physical and visible
characteristics of the building, are protected by the time-limit imposed by
subsection (4)(b). Conditions which relate to occupation alone do not possess
the characteristics which Parliament intended should be protected by the
time-limit and, accordingly, occupation in breach of the condition remained
liable to enforcement notice procedure irrespective of any four-year time
element. The type of condition, breach of which did enjoy immunity outside the four-year
period under the subsection, was that which would be visible to the planning
authority such as, for example, a condition providing for appropriate painting
of the exterior of the building, its landscaping, or the provision of
car-parking. Breaches of such conditions would or should become readily
discernible to the planning authority which would be at liberty to take
enforcement action in respect of them. Parliament did not intend that breaches
of conditions which were personal to occupants and not readily detectable, such
as the occupations of occupants, should enjoy protection. In the instant case,
it could not be said that the failure of Mr and Mrs Marsh to engage in
agriculture ‘related to the carrying out of the [building] operations’ as section
172(4)(b) provided.
Further, Mr
Steel submitted the 1990 Act contains a discrete code to deal with the
situation which prevails in the instant case. Sections 191 and 192 provide for
the issue of an established use certificate in cases where a use of land
without planning permission, or a use contrary to conditions or limitations of
a planning permission, has subsisted since the end of 1963. These provisions,
submitted Mr Steel, cannot rationally coexist with a regime that involves a
four-year limitation period if the condition involving the house occupied by Mr
and Mrs Marsh enjoys protection under section 172(4)(b). An occupancy condition
simpliciter does not ‘relate to’ the carrying out of operational
development. It relates to nothing more than the subsequent use and occupation
of the building.
For the
Secretary of State and for Mr and Mrs Marsh, Mr Toby Davey and Mr Christopher
Whybrow QC, respectively, made submissions which covered much common ground.
Both contended that all conditions properly attached to a planning approval for
building operations enjoy the protection of the four-year limitation period.
For my part, I find this a proposition which it is impossible to accept. If it
were to be so, the words in subpara (b) ‘which relates to the carrying out of
such operations’, would not be apposite. ‘Such operations’ clearly relates back
to ‘building . . . operations’ to be found in subpara (a) of subsection (4). If
the intention was to create protection for all conditions which might be of an
incorporeal nature — such as conditions of occupancy — then the phrase ‘which
relates to the grant of planning permission’ as opposed to ‘which relates to
the carrying out of such operations’ would be appropriate. Furthermore, as was
pointed out by Hirst LJ in the course of argument, the words immediately
following, ie ‘and subject to which planning permission was granted for the
development of land’ would have become redundant.
Finally,
counsel for the appellants submitted that if Parliament intended that conditions
or limitations relating solely to occupation were to be caught by the
provisions of subpara (b), the inclusion of subpara (d) is otiose.
For my part, I
have to say that I find the submissions made by Mr Steel as to the proper
construction of section 172(4) compelling. However, I must consider the impact
of Harvey v Secretary of State for Wales (1989) 88 LGR 253 1,
a decision of this court dealing with section 87 of the Town and Country
Planning Act 1971. That section for all purposes relevant to this appeal, was
in identical terms to section 172(4) of the 1990 Act. The facts in Harvey I
take from the headnote of the report. In 1974 a city council granted planning
permission for the construction of a bungalow to replace an existing dwelling
that was to be adversely affected by the building of a new road. The permission
for the replacement bungalow was expressed as being conditional upon the
existing bungalow being ‘demolished or used for the purpose of agriculture
other than a dwelling . . . within one month of the beneficial use of the
dwelling hereby approved’. The replacement bungalow was duly built and occupied
by December 1977. The existing bungalow was
1984 by H who, after doing repair work lived in it as his home. In 1985 an
enforcement notice was served on H alleging a breach of planning control,
namely the failure to comply with conditions subject to which the 1974
permission to build the replacement bungalow had been granted, and requiring
the use of the existing bungalow for residential purpose to cease. An appeal
against the notice by H was dismissed in a decision letter by an inspector in
1987. His appeal to the High Court was dismissed, the judge rejecting, inter
alia, his contention that section 87(4) of the Act applied to invalidate
the notice. The appeal to the Court of Appeal was allowed and an extempore judgment
was delivered by Sir Michael Kerr with which Mustill LJ and Farquharson LJ
agreed. Having recited the facts in rather more detail than I have done, Sir
Michael Kerr rehearsed the terms of section 87(4) of the 1971 Act and continued
at p 2571:
The crucial
question which one has to ask oneself, since there was admittedly a failure to
comply with the condition, is whether or not the condition — in this case the
demolition of the new bungalow or alternatively its use for agricultural
properties 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 the 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 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 condition.
These were either demolition or agricultural use, neither of which he regarded
as operational development . . . here it is said that the condition that —
within the time prescribed — the new bungalow be either demolished or only used
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 of the facts of
the case, and indeed in the light of the terms of the planning permission and
of condition (f) itself.
1Also reported at [1991]
2 PLR 1.
1[1991] 2 PLR 1 at p 4E.
Later, having
quoted extensively from the judgment of Dillon LJ in Peacock Homes Ltd v
Secretary of State for the Environment (1984) 83 LGR 686 in the passages
cited below, Sir Michael concluded his judgment by saying:
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.
The Peacock
Homes case was also concerned with section 87 of the 1971 Act. It involved
a planning permission for the erection of a warehouse building for a limited
period. The permission was renewed for a further
by that date the use of the warehouse and offices should be discontinued and
the building removed from the site. When this was not done enforcement notices
were served. The developers appealed. The Secretary of State upheld the notices
but the developers’ appeal to the High Court was allowed. On appeal by the
Secretary of State, the Court of Appeal dismissed the appeal and found that the
enforcement notices served outside the four-year period provided for by section
87 were served too late and were invalid. Dillon LJ having identified the
question which had to be answered, namely whether the words ‘the failure to
comply with any condition or limitation which relates to the carrying out of
such operations’ cover failure to comply with the conditions imposed in the
permissions granted in respect of the building with which the case was
concerned said, at p 692:
It is the
contention of the Secretary of State that on the true construction of section
87(4)(b) of the Act of 1971, the phrase a ‘condition or limitation which
relates to the carrying out of such operations’ means, and means only, a
condition which requires or involves the carrying out of operational
development of some sort. Therefore, as the demolition of a building is, as is
common ground, ordinarily not operational development (since demolition is not
the carrying out of a building operation) the conditions imposed in the present
case are outside paragraph (b) and enforcement is not limited to the
four-year period from the date of breach.
The trouble
about this argument is that it leads to a very obvious anomaly. If a building
is erected without any planning permission at all, then there is a breach of
planning control which is within section 87(4)(a) and any enforcement
notice requiring the demolition of the building must be served within four
years. If however the same building was erected under a planning permission
granted for a limited period subject to a condition which required the
demolition of the building at or before the end of the period, then, if the
Secretary of State is right, the four year time limit does not apply and an
enforcement notice requiring the demolition of the building may be validly
served any number of years after the limited period had expired. I fail to see
any sense in exempting such a breach of such a condition from the four-year
period for enforcement which used to apply to all breaches of planning control.
There is the
further possible anomaly that if the planning permission granted for a limited
period under which the assumed building was erected imposed conditions which
required not merely the demolition of the building at or before the end of the
period but also the carrying out of operational development at the end of the
period of the permission in order to restore the site to a state in accordance
with the planning requirements of the area, then the condition for demolition,
if a separate condition, could only be enforced after any length of time,
however remote; but the condition for the restoration of the site could only be
enforced within four years from the expiration of the period of the permission.
Yet both the removal of the buildings authorised by a planning permission
granted for a limited period and the carrying out of any works required for the
reinstatement of land at the end of that period are alike envisaged as
permissible conditions in section 30(1)(b) of the Act.
These
anomalous distinctions leave 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,
e.g. 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.
Mr Davey and
Mr Whybrow both relied upon these authorities and in particular Harvey as
indistinguishable from the current appeal and binding upon this court. Mr
Steel, on the other hand, contended that both the authorities were
distinguishable on their facts from the instant case or, in the alternative, if
the authorities could not be distinguished, Harvey in particular was
decided per incuriam.
In my
judgment, Harvey is distinguishable on its facts from the case with
which this appeal is concerned. The condition imposed upon the grant of
permission to Mr and Mrs Marsh, related exclusively to occupancy of the
dwellinghouse and was not concerned in any way with the building as such. Nor
was it in any way concerned with the building operations that constituted the
construction of the dwellinghouse. By contrast, in Harvey, the condition
did not relate exclusively to occupancy. The condition was what might be termed
‘demolition based’. Since its essential purpose was to require demolition of
the old bungalow, it directly related to a building operation. Moreover,
failure to comply with that condition also plainly related to the carrying out
of the building operation which brought into existence the replacement
bungalow. The requirement as to occupancy in Harvey was no more than a
corollary to the requirement to demolish. The primary objective of the condition
was demolition and only if that did not take place was a limitation imposed on
the nature of the occupancy. It was the failure to demolish which, ex
hypothesi, preceded the unlawful occupancy which brought section 172(4)(b)
into effect. If the Harveys had simply failed to demolish without any unlawful
occupancy, then the immunity would still have attached. Unlawful occupancy
added nothing, although, of course, it could not arise without the failure to
demolish. In the present case, on the other hand, the breach of planning
control stemmed solely and exclusively from the nature of the occupancy, and
without such unauthorised occupancy no breach could have occurred.
In Peacock
Homes there was effectively but one condition requiring removal of the
warehouse without any other condition involving occupancy. This case is
therefore clear authority for the proposition that a requirement to demolish
does relate to the building operations which were the subject of the planning
permission.
For my part, I
do not read the judgment of Sir Michael Kerr in Harvey as seeking to
extend the parameters of the Court of Appeal’s judgment in Peacock Homes on
which he so fully relied in the quotation
confirming that the demolition element in the condition imposed in Harvey attracted
the same immunity as the demolition condition in Peacock Homes. I do not
read Sir Michael Kerr’s judgment in Harvey as supporting the proposition
that an occupancy condition, taken in isolation, attracts the four-year
immunity rule under section 172(4)(b) nor was this proposition directly in
issue in that case. In the present case there was never anything more than a
condition relating to the activities of Mr and Mrs Marsh once they went into
occupation, so the proposition is now directly in issue.
I am conscious
of the words used by Sir Michael Kerr in the penultimate sentence of his
judgment. He said ‘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’. I do not
believe that by those words Sir Michael Kerr was intending to convey the view
that any and all conditions necessarily related to some other operational
development, nor do I think that that was the ratio of Harvey. Indeed,
in Peacock Homes Dillon LJ was careful to confine the ratio in
that case to the demolition, for he said at p 693: ‘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’ (emphasis
supplied).
Accordingly,
for the reasons I have endeavoured to enunciate, I take the view that this
court is free to hold that the learned deputy judge was wrong in concluding
that Harvey was indistinguishable on its facts from the present case and
that, consequently, it was incumbent upon the court to quash the enforcement
notice. I take a different view and because, in my opinion, Harvey is
distinguishable, I feel free to do so. In my judgment, the failure of Mr and
Mrs Marsh to comply with the condition relating to their occupation of the
premises did not attract the protection of section 172(4)(b), and accordingly I
would allow this appeal.
I find it
unnecessary to consider in depth the further submission made by Mr Steel which
was that Harvey was decided per incuriam. Mr Steel contended that
had the court had drawn to its attention the provisions of section 94(1) and
(2) of the Town and Country Planning Act 1971, (the precursors of sections 191
and 192 of the 1990 Act) the result would inevitably have been different.
True it is
that section 94 is not referred to in the judgment of Sir Michael Kerr. Nor is
section 172(4)(d), or rather its equivalent in the 1971 Act. But I am not
persuaded that the decision in Harvey was reached per incuriam,
having regard to the stringent tests laid down in Young v Bristol
Aeroplane Co Ltd [1944] KB 718. That leading authority has been followed on
a number of occasions since 1944 and has lost none of its efficacy. Having
regard to the views that I have expressed distinguishing Harvey I need
say no more about Mr Steel’s alternative submission.
There remains
only the further alternative submission of Mr Steel
was a continuing offence, repeated day by day. That being so, counsel contended
that time ran not from the commencement of the occupation by the Marshs but
from the day immediately preceding the service of the enforcement notice. The
point was not taken with any great enthusiasm and when it was raised before the
learned deputy judge he dealt with it shortly. He said ([1993] 1 PLR 150 at p
153H):
The start
date cannot, in my view, sensibly be the date when the breach ended. It seems
to me that it is implicit in reference to the agricultural occupancy condition,
at [p 260] in Harvey that the Court of Appeal regarded the commencement
of the breach as the appropriate start date. In this case I have held that the
enforcement notice was one to which section 172(4) applied. In order to give
effect to section 174(2)(d), it seems to me necessary to treat the breach by
occupation in contravention of condition 5 as having occurred when that
occupation started. If the breach were to be regarded as occurring anew each
day, it would be impossible to achieve the immunity which section 174(2)(d)
expressly provides.
I cannot
improve upon that passage in the judgment of the learned deputy judge with
which I agree.
In allowing
this appeal, I would direct that the order of the learned deputy judge be set
aside and that the decision of the Secretary of State be remitted to him for
reconsideration and redetermination in the light of the findings of this court
contained in this judgment.
HIRST LJ: I agree this appeal should be allowed for the reasons given by
Russell LJ.
ROSE LJ: I have the misfortune to differ from my lords as to whether Harvey
v Secretary of State for Wales (1989) 88 LGR 253 is binding on this
court in the present case. In my view it is.
Although there
is the factual distinction that in that case demolition was one of the two
possible ways of complying with the imposed condition, and although in Peacock
Homes Ltd v Secretary of State for the Environment (1984) 83 LGR 686
also, demolition was required by the imposed condition, I find nothing in the
judgment of Sir Michael Kerr in Harvey to suggest that the requirement
of demolition played any part in his reasoning. That reasoning, as it seems to
me, was founded on the distinction drawn, at the bottom of p 257 and the top of
p 258, between the contents of the condition and whether or not the condition
‘related to’ the carrying out of operational development. It was held that the
deputy judge was right in concluding that neither demolition nor agricultural use
could be regarded as operational development. But the condition requiring
demolition or agricultural use clearly ‘related to’ operational development.
This construction of Sir Michael Kerr’s judgment is borne out by his concluding
reference to ‘the condition or limitation or whatever it may be.’
There, as
here, the operational development for which permission was granted was the
construction of a new dwelling. There, as here, a condition as to agricultural
use or occupancy was imposed in relation
condition contemplated demolition as an alternative to agricultural use does
not, to my mind, affect the argument. In both cases the condition ‘related to
the carrying out of’ operational development, as distinct from development of a
non-operational kind, such as change in the category of use.
As to the per
incuriam argument based on Young v Bristol Aeroplane Co Ltd [1944]
KB 718, Morelle v Wakeling [1955] 2 QB 379, Davis v Johnson
[1979] AC 264, Bonalumi v Secretary of State for the Home
Department [1985] QB 675 and Rickards v Rickards [1990] Fam
194, I am of the clear view that Harvey was not decided per incuriam within
any of the tests formulated in those cases.
It seems to me
to be clear that the precursors of sections 191 and 192 of the Town and Country
Planning Act 1990, namely section 94 subsections (1) and (2) of the Town and
Country Planning Act 1971, were not brought to the court’s attention in Harvey.
But I am wholly unpersuaded that those provisions in relation to established
use certificates either are inconsistent with the court’s interpretation of
section 87(4)(b) of the earlier Act or, if referred to, would have made
any difference to the court’s decision.
As to
inconsistency, there is, as it seems to me, none: the provisions as to
established use certificates, in my judgment, exist parallel with, not in
opposition to, the provisions as to conditions relating to operational
development.
As to outcome,
those provisions are, in my judgment wholly unlikely to have had any effect on
the court’s decision in Harvey for two reasons. First, as already
indicated, they are not inconsistent with the construction adopted but provide,
at best, no more than an additional or, possibly more persuasive argument; this
is an inadequate basis for saying the decision was per incuriam: see Critchell
v Lambeth Borough Council [1957] 2 QB 535. Second, the adopted
construction (as is particularly clear from the passage in Dillon LJ’s judgment
in Peacock Homes cited by Sir Michael Kerr at p 259) applied the natural
meaning of the words.
Accordingly,
this court is, in my judgment, bound by Harvey and must follow it. I
would accordingly dismiss this appeal.
Appeal allowed with costs in Court of Appeal
and below against the Secretary of State; costs order below in favour of Mr and
Mrs Marsh set aside; application for leave to appeal to the House of Lords
refused.
