Breach of agricultural occupancy condition – Application for certificate of lawful use – Planning authority mistakenly issuing four year certificate under section 171B(3), Town and Country Planning Act 1990 – Applicant neighbour applying for judicial review – Planning authority issuing fresh 10 year certificate under section171B(2) and marking original certificate as revoked – Whether original certificate capable of revocation only by court – Whether planning authority having power to issue fresh certificate – Application dismissed
In 1951 planning permission was granted for the erection of a property known as Oak Bank, Wandleys Road, Fontwell, West Sussex. The permission was subject to an agricultural occupancy condition. In May 1995, S, on whose land Oak Bank stood, applied for a certificate of lawfulness of existing use on the ground that, for more than 10 years, Oak Bank had not been occupied by a person in agricultural employment. Arun District Council received from agents for S various statements in support and the applicant, F, a neighbour, put before the council material which pointed the other way. Having evaluated the evidence and having decided that they were obliged to issue the certificate for the 10 year period, the council issued a certificate under section 171B(2) of the Town and Country Planning Act 1990 on the basis that the use had subsisted for in excess of four years before the date of the application. F considered that the facts were not as alleged and in June 1995 sought leave to apply for judicial review. Leave was granted in December 1996. The council then reconsidered their position and, realising their error, took action to correct the position by issuing a fresh certificate under section 171 B(3) on the basis that the use began more than 10 years before the date of the application. The new certificate was placed on the plan file without removing the faulty certificate, which was marked “superseded”. F nevetherless continued with her application contending, inter alia, that the council had misdirected themselves and erred in law in considering the application in accordance with the four year rule in section 171B of the 1990 Act as amended and had had no power to issue a fresh certificate.
Held The application for judicial review was refused.
There was no statutory procedure to revoke a certificate which had been issued in error under section 171B , nor were there any grounds for challenging the reasonableness of the district council’s evaluation of the evidence upon which the original four year certificate had been issued. Furthermore, it was not a case where only the court could undo what had been done under a statutory scheme, nor was it a case where a person had acted in good faith in reliance upon the certificate. The effect of the certificate was the same whatever the basis on which it had been granted. By substituting a 10 year for a four year certificate the district council had not changed the basis of their decision. The council had placed on record the true basis and true reasons for their decision and in those circumstances had acted fully within their power. Although F’s original application for judicial review had been proper and well-founded, the vice had been identified and had long since been properly cured. Accordingly her objection to the mode of cure was ill-founded.
The applicant, Mrs Fowler, appeared in person; John Hobson (instructed by the solicitor to Arun District Council) appeared for the respondents
