The claimant in R (on the application of Altunkaynak) v Northamptonshire Magistrates Court [2012] EWHC 174 (Admin); [2012] PLSCS 30 sought unsuccessfully to quash the defendants’ decision to refuse a stay of a prosecution against him for failure to comply with an enforcement notice on the ground that it was an abuse of process. However, of more interest to most planning practitioners is one of the collateral issues before the court.
The breach of planning control alleged in the enforcement notice was the use by the claimant of premises as a hot food takeaway. Planning permission for such use had been granted earlier by the local planning authority, but the description of the development referred to use as a takeaway “as an extension to” other nearby premises occupied by the claimant. The claimant subsequently lost possession of those other premises. The court had to decide whether the claimant enjoyed the benefit of planning permission.
Counsel for the claimant referred the court to the decision I’m Your Man Ltd v Secretary of State for the Environment [1998] 4 PLR 107 where the court held that the Town and Country Planning Act 1990 does not expressly provide a power to impose on a planning permission granted pursuant to an application a limitation capable of enforcement under the Act. Equally, there is no implied power. The reference to limitations in Part VII of the Act is a reference to limitations imposed under a development order. Counsel contended accordingly that the words of apparent limitation in the planning permission did not have the effect in law of limiting the permission granted. Any such limitation could only have been achieved by the imposition of an appropriate condition.
The court noted that the decision in I’m Your Man Ltd, albeit a first instance one, had stood without comment for over ten years. There was no obvious flaw in the reasoning of the deputy judge, and the court concluded that it ought to be followed. Equally, while that case was concerned with a temporal limitation on the permission granted and the present case was concerned with a substantive limitation, the relevant principle drawn from the wording of the Act was a general one. Therefore the court held that the claimant did enjoy the benefit of a planning permission that would have provided a cast-iron ground of appeal against the enforcement notice.
John Martin is a freelance writer.
