[I generally try to avoid posting very long items in this blog, but just occasionally a topic crops up that requires a more lengthy treatment. The following article might justify publication in a legal journal, but I thought I would share it with readers of this blog in the first instance. As with a previous lengthy article I wrote on barn conversions, I propose to split this article into at least three separate blog posts.]
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It is an interesting coincidence that my colleagues Ben Garbett and Oliver Goodwin and I have all been puzzling over the same legal conundrum recently in connection with various cases in which each of us is currently involved. The issue that we have all been considering is the need to demonstrate continuity of a breach of planning control in the case of a change of use and/or breach of condition in order to establish that this breach has become immune from enforcement and therefore lawful.
The judicial authorities differ slightly depending on the nature of the breach (change of use to a single dwelling – the 4-year rule, change of use to some other use – the 10-year rule and breach of condition – the 10-year rule again). However, it is convenient to look at all these cases together in the chronological order in which the respective judgments were delivered.
The first of these cases, Nicholson v. SSE [1998] JPL 553, was heard in 1997. It related to the breach of an agricultural occupancy condition [“AOC”] in respect of which an LDC was being sought. The inspector, having reviewed the evidence concluded that the condition had not been breached continuously for a period of 10 years. The appellant also challenged the finding that there should be a subsisting breach at the time of the application.
The break in the continuity of the breach of condition arose from a period of several years when the property was unoccupied. The Inspector, applying an approach to this issue previously taken by the Secretary of State in other appeals, considered that there is no breach of the AOC during a period when an agricultural dwelling is not occupied at all. The house had remained unoccupied right up to the time of the LDC application. Its use as a dwelling had not been abandoned as such, and in fact it had been substantially extended (with planning permission) and had been subject to a lengthy process of refurbishment. However, following this continuing period of non-occupation, the inspector had concluded that any future occupation of the property by a person not complying with the AOC would be a fresh breach of the condition, with which previous periods of non-compliance could not be aggregated.
The Deputy Judge analysed the legal position in this way. By section 191(1), if a person wishes to ascertain whether “(c) any other matter constituting a failure to comply with any condition.....is lawful” he may make an application for that purpose. This paragraph is worded in the present tense, and is clearly directed towards the time when the application is made and to the lawfulness of the breach of condition at that time. By section 191(3), any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful at any time if the time for taking enforcement action in respect of the failure has expired (provided, of course, that it does not constitute a contravention of any of the requirements of any enforcement notice or breach of condition notice then in force).
The Deputy Judge held that to answer the question whether enforcement action can be taken against a failure to comply with a condition, the decision maker should identify the failure to comply, look to see when, as a matter of fact and degree, that failure began and, finally, decide whether a period of ten years has since expired. He made the point that in this context a failure to comply with a condition is not to be confused with the continuation or abandonment of a planning use. Most significantly, he observed that if non-compliance ceases by discontinuance of the offending activity or otherwise, that breach is at an end. The condition will, however, in an appropriate case continue in force. If there is subsequently renewed non-compliance, this would be a fresh breach, and the period for enforcement against the breach under section 171B(3) will begin to run again. It is not permissible to add the period of one breach to that of a subsequent breach, if as a matter of fact and degree they are separate breaches.
In applying that test under section 191(3) the decision maker is concerned with the particular non-compliance, the subject of the application for a certificate. This is consistent with a requirement that the non-compliance should exist at the time of the application. The Deputy Judge was careful to make it clear that he was confining himself to those provisions of section 191 which deal specifically with failure to comply with a condition, and he concluded that an application for an LDC can only be made if non-compliance exists at the time of the application. The applicant will then be entitled to a certificate if, at that time, the failure the subject of the application satisfies the definition of lawfulness, i.e. that a period of 10 years has expired since that breach occurred [or one might say ‘began’, in the case of the breach of a condition requiring continuous compliance, such as an occupancy condition].
The Deputy Judge then went on to make a number of observations (which were in their nature obiter) on the relationship of this issue with the other provisions of section 191 in respect of uses and operations. These observations are nevertheless of relevance in view of their having been quoted in later judgments relating to those issues, which I will examine in the next part of this article.
© MARTIN H GOODALL
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