In Huddlestone v Bassetlaw District Council [2017] UKUT 0238 (LC) Holgate J rejected the claimants’ arguments in determining a preliminary issue on a reference for a claim for compensation under section 186 of the Town and Country Planning Act 1990 (the 1990 Act) in respect of a stop notice served in the context of enforcement proceedings.
Planning permission had been granted subject to several pre-commencement conditions and development had begun in breach of them. The authority issued a stop notice under section 183 of the 1990 Act to take effect on the day as the linked enforcement notice. It imposed a broad restriction on the operational development authorised by the permission. The claimants successfully appealed against enforcement proceedings alleging that development had started unlawfully due to the breach of these conditions. An inspector allowed that appeal on the basis that the conditions were not true conditions precedent (applying R (on the application of Hart Aggregates) v Hartlepool Borough Council [2005] 2 P&CR 31) and therefore while the development was in breach of condition, it was not unlawful per se.
Section 186 allows compensation to be claimed where a stop notice is served under section 183 and the underlying enforcement notice is then quashed on specific grounds or varied such that the activity prohibited by the stop notice could have taken place, or the notice is withdrawn. By section 183(5) compensation is not payable in respect of activity “which, at any time when the notice is enforced, constitutes or contributes to a breach of planning control”. Authorities are therefore incentivised to enforce that stop notices drawn narrowly to only restrict activity that would be unlawful.
The stop notice ceased to have effect when the inspector quashed the enforcement notice. The claimants submitted that at the point when the stop notice was served, they were entitled to rely on the planning permission to carry out development prohibited by the stop notice (notwithstanding that they had not at that point, or thereafter, discharged any of the relevant pre-commencement conditions). The fact that it was “able to apply for” the outstanding approvals was argued to be enough.
Holgate J rejected the claim, on the basis that the claimants’ entitlement to develop under the permission was subject to discharging those conditions – until they did so any development would continue to be in breach of condition and therefore unlawful for the purposes of section 186(5). The claimants’ argument involved in a “substantial departure from reality” for the purpose of applying section 186(5) properly construed and undertaking a hypothetical valuation (Trocette Property Co Ltd v Greater London Council [1974] 28 P&CR 408). The claim for compensation could therefore not proceed.
Roy Pinnock is a partner in the planning and public law team at Dentons
