Friday, 27 May 2011

Conditions attached to an expired permission


I am grateful to Louis Chicot for drawing to my attention last week a decision in the Court of Appeal in Avon Estates Ltd v Welsh Ministers [2011] EWCA Civ 553, in which judgment was given on 16 May. Pressure of work prevented my posting on it at the time, and I see that it has since been reported by a number of other commentators.

The point in issue was one which, perhaps surprisingly, had not previously come before the courts, namely whether conditions attached to a ‘temporary’ planning permission continue to apply after that permission has expired. An Inspector and a High Court judge thought they did, but giving judgment in the Court of Appeal, Sir David Keene came to the conclusion that the other conditions attached to the planning permission ceased to have effect after the date by which the use of the site had been required to cease.

The failure to cease the use and to remove the buildings in accordance with the time condition in the planning permission was, of course, a breach of planning control in itself, but in the present case a considerable time (well over 10 years) had expired since the date by which the development was required to be removed. The buildings had therefore become immune from enforcement either under the 4-year rule (in relation to the erection of the buildings) or under the 10-year rule (in relation to the time condition requiring cessation of the use and removal of the buildings). The development had therefore become lawful quite independently of the planning permission under which it was originally carried out.

The original planning permission had been for ‘holiday bungalows’, and a condition had been imposed requiring their use to be restricted to certain months of the year. However, the owner was now seeking a Lawful Development Certificate in respect of the unrestricted use of the bungalows as single private dwellings. An inspector allowed the owner’s appeal against the LPA’s refusal of that certificate, but stated that the lawful use was subject to the conditions (including the seasonal occupancy condition) imposed on the original planning permission.

At first instance it was held that it was only the time limit condition which no longer applied, but that (subject to that one exception) the planning permission remained extant, so that other conditions continued to apply. The argument on behalf of the respondents was effectively that a permission, if it contains other conditions as well as the time limit condition, still survives. Neither the permission nor its conditions expire. It is simply that the time limit condition will in due course become immune from enforcement, but that does not mean that the other conditions have acquired such immunity. A local planning authority, it was argued, can properly refrain from enforcing the time limit on the permitted use but may still enforce other conditions restricting that use, but this argument was rejected by the Court. Sir David Keene drew attention to the well-established rule that a condition in a permission cannot be enforced if the landowner does not have to rely on the permission to authorise his development, although the decided cases do not expressly deal with the situation where the landowner did need the permission originally to sanction his development and where the permission has been implemented.

However, Sir David observed that, having said that, it was very difficult to conceive of a condition on a temporary permission under section 72 which could sensibly relate to a development, once that development has ceased to be authorised by the permission. The time limit and restoration condition in this permission did not have that effect, since that condition is expressly and precisely provided for by section 72 (1) (b). One cannot derive a general approval from that for conditions which bind the land once the development itself has ceased to be authorised and has become immune from enforcement action. Such enduring conditions would, to be lawful, still have to relate fairly and reasonably to the authorised development, which was and is to be seen as a temporary development.

His lordship therefore concluded that the seasonal use conditions in these permissions applied only during the period for which development was authorised by those permissions. The seasonal use conditions were, as a matter of objective construction, intended to be coterminous with the authorised development, with the result that the seasonal use restriction applied during that period for which the holiday bungalows were permitted. The appeal was therefore allowed, and the case was remitted to Welsh Ministers for redetermination.

© MARTIN H GOODALL

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