Local planning authority issuing enforcement notice in respect of farmland – Lease expiring – Tenants appealing against enforcement notice – Whether inspector erred in finding tenants had no interest in the land at relevant time and had no right to appeal – Section 174 of Town and Country Planning Act 1990 – Application dismissed
In October 1993 the applicants were granted a five-year lease of farm land, under which it was agreed that no tenancy from year to year would arise upon the expiry of the original term, and that the tenants would return possession of the property to the landlord in the state in which the lease required them to keep it. In October 1998 the local planning authority issued an enforcement notice alleging a breach of planning control, namely the carrying out of engineering works to two farm tracks. The applicants appealed against the notice in November 1998.
The planning inspectorate received the appeal later that month. An inquiry was subsequently held, at which an issue arose as to the applicants’ right to bring the appeal. Section 174(1) of the Town and Country Planning Act 1990 (as amended) gave such a right to “a person having an interest in the land to which an enforcement notice relates or a relevant occupier”. Section 174(6) defined “relevant occupier” as a person who “(b) continues to occupy the land when the appeal is brought”. The inspector concluded that the words “when the appeal is brought” referred to the date when the appeal was received, namely November 1998, and found that, upon the evidence before him, neither applicant was a “relevant occupier” when the notice was issued or when the appeal was received. He also held that the right of appeal of “a person having an interest in the land” only applied where that interest continued at least until the date when the appeal was brought, and, consequently, he concluded that neither applicant had any right of appeal against the notice.
The applicants sought to quash that decision, submitting that it was sufficient for a prospective appellant to establish that: (i) he had an interest in the land, within the meaning of section 174(1), when the enforcement notice was issued; and (ii) he was a relevant occupier, within the meaning of section 174(6), when the appeal was brought. The applicants accepted that the lease had not been converted into a periodic tenancy upon its expiry, but contended that: (i) they were nevertheless part of a family partnership, which continued to live on and farm the land; (ii) they had an interest in the land at the first material date, namely when the notice was issued, and did not lose their right of appeal if that interest expired between the service of the notice and the bringing of the appeal; and (iii) the family were in effect “holding over” in spite of the terms of the lease. In the alternative, the applicants submitted that they occupied the land at all material times and could only have been there as licencees or trespassers. They contended that if they were licencees in occupation at the time the appeal was brought, they were capable of being “relevant occupiers”. However, the inspector did not deal with that aspect of the case.
Held: The application was refused.
1. The inspector had erred in finding that neither applicant had an interest in the land when the enforcement notice was issued. However, that error did not invalidate his final conclusion. The critical date, for the purpose of section 174(1), was the date upon which the appeal was received by the planning inspectorate, regardless of whether an applicant was a person “having an interest in the land” or a “relevant occupier”. Section 174(1) required the interest in the land to subsist at the time the appeal was brought. The words “interest in the land” in that section included any equitable or legal estate in the land, as opposed to a mere contractual right. The section did not require that the person appealing should have had an interest in the land at the date of service of the enforcement notice.
2. The effect of section 174(6) was to ensure that any “relevant occupier” who had been served as an occupier under section 172(2) had a right to appeal, but only if he remained in occupation until the appeal was brought. Equally, in the light of section 174(6)(a) and (b), a licencee who went into occupation after service of an enforcement notice had no right of appeal. Such a licencee could have no legitimate expectation about his future occupation. The inspector’s conclusion that neither applicant had established status as a “relevant occupier” when the notice was issued or when the appeal was brought was a conclusion open to him upon the evidence.
Alun Alesbury (instructed by Kidd Rapinet, of Haslemere) appeared for the applicants; Michael Gibbon (instructed by the Treasury Solicitor) appeared for the respondent.
Sarah Addenbrooke, barrister
