Sevenoaks District Council have failed in their attempt to force a Farningham golf club to reduce the height of earth banks created during the construction of the course.
The council claimed that an inspector had erred in overturning an enforcement notice even though the banks, known as “bunds”, were higher than those set out in designs shown to the council. However, Sullivan J has held that the requirement that the bunds should not exceed the stipulated height was not legally enforceable.
In February 2003, the council issued an enforcement notice against the club, requiring the bunds to be reduced in height in compliance with a condition of the planning permission for the golf course. On appeal, the inspector held that although the council’s allegation was factually correct, the condition could not be interpreted so as to imply into it a requirement that the work had to be carried out in accordance with the approved details.
The High Court has agreed. Although Sullivan J accepted that the bunds had been constructed in a way that was “materially different to the approved details”, the judge held that, because of the way in which the planning consent had been worded, the condition could not be said to have been a “requirement” of the consent.
He found that the council could have inserted into the planning consent a condition that imposed upon the club an obligation in respect of the height of the bunds, but maintained that they had omitted, or had not chosen, to do so. In such circumstances, he said, no breach of the planning consent had occurred.
The judge added that, because the council had acted unreasonably in their moves against the club and had therefore caused the club to incur unnecessary legal costs, the council should be liable for their costs.
Sevenoaks District Council v First Secretary of State and another Queen’s Bench Division: Administrative Court (Sullivan J) 22 March 2004.
References: EGi Legal News 24/3/04
