Lawful development certificate — Holiday bungalows — Planning permission granted subject to seasonal-occupancy condition — Bungalow occupied continuously over 10-year period — Council refusing lawful development certificate for permanent residential use — Whether immunity acquired where breach of seasonal-occupancy condition — Claim dismissed
The claimant local authority’s predecessors had granted planning permission for five holiday bungalows subject to the condition, inter alia, that they should be occupied only from 15 March to 15 November each year. In November 2002, the second defendant applied to the claimants for a lawful development certificate for permanent residential use of one of the bungalows on the ground that he had occupied it continuously since October 1992 in breach of the seasonal-occupancy condition. The application was refused on the basis that the condition had not been breached continuously for more than 10 years, as required by section 171B(3) of the Town and Country Planning Act 1990, because the occupation of the bungalow between 15 March and 15 November each year complied with the condition.
The first defendant’s appointee allowed an appeal by the second defendant against that refusal under section 195 of the 1990 Act. The appointee rejected the claimants’ argument that each winter (the closed period) that the bungalow had been occupied represented a separate breach of the condition and that lawful use rights could never accrue in such circumstances. The claimants applied to quash that decision.
Held: The claim was dismissed.
Section 171B(3) had to be construed within the overall framework of enforcement action. It was plain that parliament had intended that a breach of planning control should become immune from enforcement action after the breach had continued for 10 years. Section 171B and Circular 10/97 contained nothing to prevent the breach of a seasonal-occupancy condition from acquiring such immunity.
The second defendant’s occupation of the bungalow during the closed period was clearly in breach of the seasonal-occupancy condition and was liable to enforcement action. Following the decision in Thurrock Borough Council v Secretary of State for the Environment, Transport and the Regions (No 2) [2002] EWCA Civ 226; [2002] JPL 1278, the claimants could have taken enforcement action at any time during the 10-year period, including during the summer months when occupancy did not breach the condition. Having failed to take enforcement action, it was now too late to do so.
Martin Edwards (instructed by the solicitor to North Devon District Council) appeared for the claimants; John Litton (instructed by the Treasury Solicitor) appeared for the first defendant, the second defendant did not appear and was not represented.
Eileen O’Grady, barrister
