Basingstoke & Deane Borough Council v Secretary of State for Communities & Local Government [2009] EWHC 1012 (Admin)

[2009] EWHC 1012 (Admin)Case No CO/6953/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 22nd April 2009
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
BASINGSTOKE AND DEANE BOROUGH COUNCILClaimantv
Between
THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendantSIR THOMAS STOCKDALEInterested Party
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company265 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Johanna Boyd (instructed by Matthew Arnold & Baldwin LLP) appeared for ClaimantRupert Warren (instructed by the Treasury Solicitor) appeared for DefendantRobert Fookes (instructed by Edwin Coe LLP) appeared for Interested Party
J U D G M E N T
[1]MR JUSTICE COLLINS: This is a claim, pursuant to Section 288 of the Town and Country Planning Act 1990, seeking to quash the grant by an inspector of a lawful development certificate in relation to the use of premises at 4 Hoddington Farm Cottages, near Basingstoke, as a dwellinghouse, but not limited to a dwelling occupied by an agricultural worker.[2]It was asserted that there was a condition imposed upon the original planning permission, which limited the use of the property in question to occupation by an agricultural worker and that that condition had been breached. It was further contended by the claimant, the local authority, that there had been no continuous breach of that condition over a period of 10 years. Therefore, it was decided by the authority that a certificate would not be granted, but the Inspector disagreed and granted it. That is the background.[3]Let me come to more detail. This was a case in which there was no issue of fact; the facts were all agreed. The only question was what was the proper result, in law, of the agreed facts. It was the contention of the claimant authority that the certificate must be refused. The interested party, the applicant for the certificate, contended the contrary. In due course, the Inspector sided with the applicant.[4]There were in fact two applications for certificates, but the Inspector granted the certificate based upon the second. There were two arguments raised. One was that the condition originally imposed was not one which was valid as a planning condition. Therefore, to disregard it would not constitute a breach which could be enforced against. Thus, there was no bar to the grant of a certificate. Secondly, it was contended that if that was wrong, and there was a valid planning condition imposed, there had been a continuous breach over the period of 10 years, so enforcement was no longer possible. Those were the two issues.[5]The planning permission was originally granted as long ago as 1950. The copy which has been obtained is not as clear as it might be because of its antiquity, but the planning permission was for the erection of a pair of agricultural workers' cottages at the farm. There was a condition that they be occupied only by persons engaged in an agricultural occupation, as defined in paragraph 7 of Circular 62. The reasons for the decision to impose the condition were stated to be "in order to comply with the provisions of the scheme outlined in Ministry of Town and Country Planning Circular No 62".[6]That circular related to the development charge on houses for members of the agricultural population. It resulted from a decision that a development charge, which was then payable on the erection of houses, would not be levied on dwellings built for agricultural workers. What lay behind that was a desire by the then Government to encourage agriculture, and farming activities, and thus to encourage the provision for agricultural workers of somewhere where they could live.[7]The relevant paragraphs of the Circular are as follows:
"2. It is intended that the erection or enlargement of such houses [houses for members of the agricultural population] shall be free of development charge for so long as the houses are used by members of the agricultural population, but if they are used for other purposes, for example as weekend cottages, charge shall become payable. 3. This arrangement will apply to three types of case..."
The relevant one is the third which is:
"(c) Where planning permission is given subject to a condition that the house shall be occupied by members of the agricultural population as defined in paragraph 7 below."
That definition imported the definition in section 119(1) of the Town and Country Planning Act 1947. It is not necessary for me to detail that.[8]I shall come back to paragraph 5, but paragraph 6 provided, so far as material:
"6. The success of this scheme depends on the co-operation of local planning authorities and other local authorities with delegated powers. The Minister is sure that in the interests of agriculture this co-operation will be willingly given. Local authorities are therefore asked, when an application is received for planning permission to build or enlarge a house for persons covered by the definition of 'agricultural population', and the applicant indicates that he wishes to claim relief from development charge, first to ascertain whether any subsidy or grant is payable... If it is not [which was the position in this case], they should attach to the planning permission a condition that the building must be occupied bymembers of the agricultural population as defined in paragraph 7. The Minister wishes it to be clear, however, that if a request for the attaching of such a condition is not made by the applicant, the local authority need not take any action to remedy the omission. It is in the applicant's interest that thecondition should be imposed, and while the Minister is anxious that the local authorities should be as helpful as possible, the applicant cannot expect them to relieve him of responsibility for his own interests."
[9]It is thus clear that the condition was imposed at the request of the then applicant and for the purpose of avoiding the payment of development charge which would otherwise have been payable on the construction of these dwellings. However, as Miss Boyd points out, the Circular contains, in paragraphs 5 and 8, an indication that enforcement action should be taken if the condition is breached. Paragraphs 5 and 8 read:
"5. In the last class of case, however, the Board will make a nil determination when the house is built. If the house subsequently becomes occupied by persons not covered by the condition, a new planning permission will be necessary to avoid the serving of an enforcement notice, and a development charge would be calculated on that permission. ... 8. Local authorities should not — unless the Minister so directs — serve an enforcement notice merely because the tenant changes his occupation so as to come outside the definition of 'agricultural population', so long as the owner appears to have an honest intention to re-let as soon as possible to a tenant who will be within the definition."
[10]Thus, submits Miss Boyd, it is apparent that the Circular regarded the condition as one which could properly be imposed for planning purposes and so could, if breached, attract enforcement action. The question that arises in this case is whether that is correct, or was correct, as a matter of law. The Inspector's decision indicates that he, at least, took the view that it was not.[11]It is not in issue that the law requires that any condition which is imposed should be one which is imposed for a proper planning purpose. If it is not, then the condition is not one which can be enforced through the procedure applicable under the relevant sections of the Act, now sections 171A, 171B and 173, that is to say enforcement action within the terms of the Act. If enforcement action is taken, failure to comply is an offence.[12]The House of Lords decided in Fawcett Properties v Buckingham County Council [1960] 3 All ER 503 that a condition such as was imposed in this case, that is to say a condition which limits the use that could be made by individuals of a dwellinghouse, is one which is capable of being a proper planning condition. In the Fawcett case, which involved farm workers' cottages, the condition was that the occupation should be limited to persons whose employment, or latest employment, is, or was, employment in agriculture, as defined in section 119(1) of the Town and Country Planning Act 1947. So to that extent, although it went further, the details of which are not material, it was very similar to the condition imposed in this case. But in the Fawcett case the reason given for the condition being imposed was because the Council would not be prepared to permit the erection of dwellinghouses on the site unconnected with the use of the adjoining land for agricultural or similar purposes. Thus, there was a clear planning purpose, which was stated, on the face of the grant of permission, for the imposition of that particular condition. The House of Lords, following the reasoning of the Court of Appeal, accepted that that was an entirely appropriate and proper form of planning condition.[13]But the reasons why the particular condition was imposed are of considerable importance. That that is an approach which is appropriate was established in the very early days of the planning control, commenced by the 1947 Act: Crisp from the Fens Limited v Rutland County Council [1950] 1 P&CR 48. That case concerned a condition and an argument that the condition was one which was bad. The facts do not matter; I cite it merely for some observations of Bucknill LJ at page 54 of the report, where he said this:
"But the main reason for my conclusion is to be found in those given by the county council themselves for grantingthe permission for the development. They have a statutory duty to give reasons for their decision, and I think that great weight must be attached to them. They state, 'this condition is necessary to ensure that thebuilding shall not be used for general industrial purposes, as such uses would be liable to be detrimental to the amenities of the locality'."
It is clear beyond any question that that reasoning indicates that the condition in that case was imposed for a proper planning purpose.[14]In the Fawcett case in the Court of Appeal it is relevant to note observations of Pearce LJ, whose judgment was approved in the House of Lords. At the report in [1959] 1 Ch 543, at page 578, he is recorded as saying this:
"The Act itself contains no express words limiting the scope of the conditions; and I think that the legislature must be taken to envisage some restriction on the persons occupying premises, since that itself is often the only means of restricting the purpose, for example, a farm cottage restricted to the farm hand or the bailiff, a building near a hospital restricted to the housing of nurses. Where, then, can one draw the line? It might be arguable that a restriction to a class of person fulfilling some office in relation to the adjoining land is the only permissible restriction. But that is a tenuous distinction, and I see no justification for inferring it. I think that restriction of persons is permissible if that restriction is of persons in relation to town planning, that is to say, if the restriction is genuinely directed to securing for a given locality a certain class of occupant from a town planning point of view. It is clear that such restrictions should be closely watched. For, if they are imposed from some housing or public health or social consideration other than town planning, the authority would be taking a wrong matter into account and the restriction would, on that ground, be invalid."
[15]The Inspector noted that some other adjoining cottages had been erected with planning permission in 1954, 1955 and 1956, and in the case of those there was no limitation, such as there was in the planning permission with which this case is concerned. The reason for that lack of limitation, or absence of condition, was because the development charge had been repealed in 1954 by section 49(5) of the Planning Act 1954. This showed, the Inspector indicated, and correctly indicated, that there was at that time no planning policy in existence in this particular area which was intended to secure a limitation on those who could occupy dwellings built at that time.[16]Miss Boyd has submitted that the Inspector was not entitled to take account of those other permissions, submitting that the permission in question must be looked at on its own and it was not possible to seek to construe it by reference to other extraneous material. But it is not a question of construing it; it is a question of seeing what the factual background was at the time, and what the planning policies were at the time, because we are looking back to 1950. It is clear beyond any doubt that at that time there was no particular policy which was applied by the then planning authority, the Hampshire County Council, which limited the occupancy of dwellings built for agricultural workers to agricultural workers. The only purpose of imposing that condition was to avoid the payment of the development charge that would otherwise have been payable; and it is plain from the Circular which I have already cited that the condition was imposed at the request of, and for the benefit of, the then applicant. Indeed, there would have been no such condition if he had not applied for it, and he would then have had to have paid the development charge. The fact that there may have been what could be regarded as a possible planning purpose, in the sense that this was to encourage agriculture, is, as it seems to me, nothing to the point. It is certain that it is not a matter that was "directed to securing for a given locality a certain class of occupant from a town planning point of view", to quote again the words of Pearce LJ.[17]The Inspector recognised that today such a condition would almost certainly be imposed, because the present policy, and, one suspects, the policy for some time, would have limited the construction of dwellinghouses in rural areas to those which were needed for agricultural workers. Obviously, in those circumstances, a condition such as the one imposed in this case is a condition which could be regarded as having a proper planning purpose. That is why one has to look at the reason why this particular condition was imposed. When one looks at that reason one finds that it was not imposed for a particular planning purpose. The fact that it now would be, or could be, does not mean that it is to be given retrospective validity. The question is, and the question remains, whether it was valid as a planning condition when it was imposed. The answer to that question is, following the Fawcett case, that it was not. The fact that the Minister took the view in the circular that it was is nothing to the point. The reality is, in my view, that enforcement action would inevitably have failed, had it been taken in respect of an alleged breach of this particular condition.[18]The Inspector also had regard to the fact that the 1954 Act removed the development charge. There had been measures before that, the details of which I do not need to go into, which showed that it was perhaps on its way out. The argument before him was that once the charge was no longer in existence (in 1954), the condition became spent and, therefore, was not any more applicable. It seems to me that if the condition was a valid planning condition when imposed, the fact that the circumstances which led to its imposition no longer existed, does not mean that the condition ceased to be a valid condition. If it was valid then, it remained valid as a planning condition, unless and until set aside.[19]Mr Fookes argues that while he accepts that as a general principle, this condition was one which was imposed, and there can be no question of this, to avoid the development charge payment. If that charge had been paid, then the condition would no longer have been appropriate; but there was then no means of removing it, short of a formal application, or a fresh planning permission being sought. Therefore, the condition would, apparently, have continued to run, unless one could say that the condition had been fulfilled by either the payment of the development charge, or the abolition of any requirement to pay the development charge, because it should be regarded, in the circumstances, as equivalent to a condition, such as a condition for prior approval of particular details which, once the approval had been granted, would then be fulfilled.[20]I see the force of that argument but, in the circumstances of this case, it is not one which I need to reach any final decision on, since I am entirely satisfied that the condition, when first imposed, was not one which was imposed on planning grounds. Therefore, it was not one which was, or ever has been, enforceable, in terms of the Act. That being so, I am entirely satisfied that the Inspector was correct in deciding that the condition was invalid and it is unnecessary to decide, finally, whether he was further correct to decide that it had become spent by virtue of section 49(5). I think perhaps "fulfilled" is a better word than "spent" in all the circumstances, if that is a correct approach.[21]That being so, it is, strictly speaking, unnecessary to decide on the second point, which is whether there had been a continual breach over the 10-year period. However, since the matter has been fully argued, it is appropriate for me to indicate my conclusions on that point.[22]So far as the history of occupation is concerned, the property in question was occupied from the date that it was available for occupation until 1993 by an agricultural worker. Accordingly, there was no breach. It was then occupied between January 1994 and June 1997 by people who were not agricultural workers or members of the agricultural population. Between 1st July 1997 and July 1998 extensive refurbishment works were undertaken, following which the property was marketed for rent and no one lived in it during that period. It was then occupied, between July 1998 and May 1999, by two people who did not comply with the planning condition and, following a further marketing exercise, from 3rd July 1999 until March 2007 it was again occupied by non-agricultural workers.[23]In his decision the Inspector made the point that the purpose of the improvement works was to enable the property to be let as a highly desirable property for prospective tenants. In fact, it was to render it capable of commanding the highest open-market, unrestricted rent that could be reasonably obtained.[24]The 10-year period is a period which stems from the provisions of section 191(b) of the Town and Country Planning Act 1990. Section 192 of the Act enables an application to be made for a certificate of lawfulness, and section 191 of the Act provides by subsection (1):
"(1) If any person wishes to ascertain whether— (a) any existing use of buildings or other land is lawful. ... or (c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful he may make an application for the purpose to the local planning authority..."
By subsection (2) it is provided as follows:
"(2) For the purposes of this Act uses and operations are lawful at any time if— (a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and (b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force."
[25]The relevant period in respect of a breach ofcondition, such as is alleged in this case, is 10 years. That is to say, the breach cannot be enforced against after 10 years have elapsed. But there must be shown to have been a continuing breach over the whole of the 10-year period, because if there has not — if there has been any gap — then the period starts to run afresh.[26]The Inspector dealt with the matter as follows, so far as material:
"22. On 1st July [1997] the building became the subject of proposed refurbishment. A specification was prepared and provided to the proposed builder on or about 21st July 1997. However, the estimated price proved unacceptable and further arrangements were made to put the work out to tender. This was done within 2 weeks and tenders were sought on26th September. In early October the Trustees discovered irregularities which led to a further tender submitted on 26th October. Although no specific start date was given, the first invoice was paid in arrears on 27th November 1997. The works took just over 6 months, after which a draft agreement for letting was drawn up and approved, and marketing commenced during May and June 1998. 23. From 1st July 1998 until 9th March 2007 the property was let to people who did not comply with the terms of the condition. On 19th January 2007 the 1989 Hoddington Settlement [the trustees] instructed agents to sell the appeal premises and this was confirmed in writing on 22nd January. Clearly the tenants were required to leave for this reason. The period between their departure and the first LDC application being submitted was taken up with efforts to clarify the planning historyand title of the property and amounted to a period of some 6 weeks. 24. The issue to be determined is whether the two periods during which the building was not occupied by residential tenants constitute a break in the continuous occupation of the cottage contrary to the condition."
[27]The Inspector phrases it in that way, but the reality is, as it seems to me, that one should ask whether there was a continuous breach of the relevant condition over that period. It is not a question of continuous occupation contrary to a condition; it is a question whether, over the relevant 10-year period, there has been a continuing breach of the condition. The correct approach is to ask the question whether enforcement action could have been taken at all material times, successfully, in relation to what was happening in the premises, or to the premises, at any material time.[28]The Inspector goes on:
"25. Case law indicates that the question of occupation is a matter of fact and degree to be considered in the light of all surrounding circumstances, including the length of physical occupation and any other indications or evidence of continuing occupation, despite the absence of occupiers. It also seems that continuous physical occupation is not required for there to be occupation in breach."
Pausing there, in that paragraph the Inspector refers to the decision of this court in North Devon District Council v Secretary of State for the Environment and others [1998] 2 PLR 46. It is a decision of Mr Lockhart-Mummery QC, sitting as a Deputy Judge in this court. That involved an application for a lawful development certificate in relation to a similar restriction, that is to say agricultural occupancy, in circumstances where the premises had been let on short-term holiday lets between May and September in each year, and had not been occupied during the winter months. Mr Lockhart-Mummery decided that in all the circumstances there was a break, because the absence of any occupation during the winter months meant that there was, during that time, no breach of the condition, which was a condition of occupation by agricultural workers.[29]What he said, as a general approach, was this (page 54 of the report, letter G):
"Clearly, continuous physical occupation is not required for there to be occupation in breach. Beyond those few comments, it would not be appropriate to indicate any guidelines. This question is quintessentially a question of fact [and] degree to be considered in the light of all surrounding circumstances, including the length of physical occupation and any other indications or evidence of continuing occupation, despite the physical absence of the occupiers."
Again, he approaches the matter on the basis of occupation and the question whether there is continuing occupation.[30]There have been, in addition, a number of other cases which have referred to the question of continuous occupation, to which Miss Boyd has drawn my attention, and to which I should refer before going back to the Inspector's approach. First was Secretary of State for Environment and another v Thurrock Borough Council [2002] JPL 1278. That was a "material change of use" case where there had been use as an air landing strip, which was said to have been a breach of the relevant planning grant.[31]The approach which is referred to is in the judgment of Schiemann LJ. He made the point that the concept of abandonment was not one which was appropriate in asking whether there had been a continuing breach of a particular planning permission. What he said, so far as material, was this (page 1285):
"27. In the present case, had the activities which took place on the land between 1981 and 1983 continued unabated until 1992, and had the landowner then ceased to use the land for aircraft activitiesfor 3 years and then sought once more to use it for aircraft activities, that type of problem would have arisen. But the inspector did not find that the commercial use continued unabated. If anything, he found the contrary. He approached his task by asking whether the local planning authority had shown that the commercial use which existed in 1981 and 1982 had been abandoned and applying a presumption that in the absence of clear evidence to the contrary the unlawful commercial activity continued throughout the period 1981-1989. Thus, instead of deciding whether the landowner had shown that the unlawful activity had continued throughout the relevant period, he asked himself whether the local planning authority had discharged some burden of proof in relation to that period. He apparently held that the landowner's own declaration in the Requisition for Information that on 8th July 1983 the land was being used for agriculture and a dwelling was not sufficient. He did not ask himself whetherenforcement action could have been taken throughout the period 1981-1991 or any other clearly defined 10-year period. That is a question which should, in my judgement, have been addressed by him, and should be addressed by the Secretary of State if this appeal is dismissed and the case is remitted to him. 28. I accept Mr Corner's point that an enforcement notice can lawfully be issued, notwithstanding that at the moment of issuethe activity objected to is not going on — because it is the weekend or the factory's summer holiday, for instance. The land would still be properly described as being usedfor the objectionable activity. However, I would reject Mr Hockman's submission thatenforcement action can be taken once the new activity which resulted from the material change in the use of land has permanently ceased. I accept that there will be borderline cases when it is not clear whether the land is being used for the objectionable activity. These are matters of judgement for others."
[32]In Swale Borough Council v First Secretary of State and Roger Lee [2005] EWCA Civ 1568 the Court of Appeal was concerned with a building which had been originally apparently a barn, but was later used for residential purposes. The question was whether there was a breach of the planning permission and whether it had been used in breach, or for a particular purpose, over the relevant period. The leading judgment was given by Keene LJ. He recognised and agreed that it was correct to distinguish between a cessation of use, on the one hand, and an absence of the occupier for a time, such as for the purpose of a holiday.[33]He went on:
"25. I accept that whether a building is, or was, being used for a particular purpose at a particular time or times is largely a question of fact. But it is not, in the planning law context, wholly such. It is necessary, as the Thurrock decision demonstrates, for the decision-maker to adopt the proper approach as a matter of law to his decision on that question. It is not always an easy question to answer. But I am in no doubt that the legally correct question for the Inspector here to have asked was whether this building had been used as a single dwelling throughout the whole of the 4 years preceding 6th March 2001, so that the planning authority could at any time during that period have taken the enforcement action. 26. That is a quite different question from whether a use has been abandoned, at least in the sense in which that word is normally used in planning law in the context of abandoning established use rights. Patently, when Schiemann LJ referred in paragraph 28 of the Thurrock case, the passage I have just quoted, to the permanent cessation of the use, he was not intending to advocate a test similar to that of abandonment, which he had already expressly rejected in his judgment. 27. The proper approach was put, if I may say so, very clearly by my Lord, Chadwick LJ, at paragraphs 58 and 59 in Thurrock when referring to the earlier case of Panton and Farmer v Secretary of State for the Environment [1999] JPL 461. Chadwick LJ there said this: 'If, on the other hand, the Deputy Judge intended to suggest that an enforcement notice could and should be served in respect of a use which had commenced as a result of a material change of use in breach of planning control but which had ceased to be an active use before any accrued planning right had arisen, then I am unable to follow his reasoning or to see how an enforcement notice could be appropriate in those circumstances. It is important to keep in mind that an enforcement notice must specify the steps which the local planning authority required to be taken "or the activities which the authority require to cease", for the purposes of remedying the breach... (59) The "nonsense" can be avoided by recognising that the Deputy Judge did not intend to suggest, in the Panton and Farmer case, that there was any need to serve enforcement notice in respect of the use which had ceased to be an active use before any accrued planning right had accrued.'"
[34]It is to be noted that Keene LJ referred to certain matters which the inspector had raised, supporting his conclusions, which he said showed that there may have been a mistaken approach:
"One of those was the absence of evidence of an intention to abandon the residential use of the barn. Had that been the only troubling reference it might (and I emphasise that word) not have cast sufficient doubt on his process of reasoning."
Thus, Keene LJ recognised that if there was no intention to abandon the residential use, which was the unlawful use in question, over the period, then it might be that it could be decided that the unlawful use continued, even though it was not being actually carried out at any particular moment. It would be a question of fact and degree whether it could properly be said that the unlawful use, was continuing. That case, unlike this, concerned use, rather than the breach, or alleged breach, of a condition.[35]Miss Boyd has also referred me to a decision of Lloyd Jones J in Miles v The National Assembly for Wales and Caerphilly Borough Council [2007] EWHC 10 (Admin). That was a case where the breach in question was alleged to be use for motorcycle racing. That use was suspended for a period of some 15 months or so, because of the foot and mouth outbreak, which meant that travelling over the countryside created real problems. Lloyd Jones J took the view that in the circumstances of that case there was a significant gap when the unlawful use was not being carried out, and that that gap meant that it could not be said that there was a continuing breach. In those circumstances, the lawful development certificate could not properly be granted.[36]The important point to bear in mind is that the decision in an individual case will depend upon the facts of that case. That is clearly the approach. Of course, there may be circumstances in which one can say that the decision can only go one way or the other way, when one looks at the facts that are established, but it is not, generally speaking, possible to determine one case on the basis of the facts of another case. One has to see whether an inspector has applied the right approach.[37]What the Inspector then went on to decide in his letter was that the periods other than the year between July 1997 and 1998 could be regarded as de minimis and part of the general pattern, given that replacement lettings inevitably take some time to conclude or materialise. While Miss Boyd is minded to quarrel with 6 weeks as being de minimis, she does not seriously challenge that; and certainly she recognises that if that had stood on its own, she would not have relied upon it as showing that there was no continuity of breach. The issue depends on the year between 1997 and 1998.[38]The Inspector recorded the contention of the appellants that the Settlement had taken occupation for the purpose of preparing for and executing the improvement works, and that, being essentially akin to a property company, their occupation was therefore also in breach of the condition. That is not, as I read it, the Inspector's conclusion. On the face of it, that is an indication of the submission being made. However, it is right to note that in paragraph 31 the Inspector concludes that the building was either unoccupied, de minimis, or occupied in breach by the Settlement (the Trustees). So it appears that he accepted that particular argument.[39]However, at paragraph 29 he said this:
"Following commencement of the works the builders were in occupation and under the instructions of the [Trust]. Consequently, the building was not unoccupied and, although it may not have been in use as a dwelling, the occupation did not comply with the terms of the condition. It is unlikely that the Council would take enforcement action where an agricultural dwelling is occupied by builders carrying [out] repairs orrefurbishment. However, by the same token, it would seem unreasonable to assume that occupation by builders of a cottage formerly occupied in breach of the condition should be considered to materially change the long-established pattern of occupation."
[40]I am bound to say that I do not accept the Inspector's reasoning in that paragraph. He took the view that it was necessary for him to find that there was some occupation, subject to de minimis, which he applied in relation to the non-occupation while steps were taken to re-let in order to show that there was a breach of the condition. That, as it seems to me, is not a correct approach; and indeed is not the approach that the Court of Appeal has indicated to be correct in the two authorities to which I have referred.[41]What has to be done is to look to see what have been the relevant activities over the 10-year period in relation to the building in question. To put it in the context of this case, has there been what could properly be regarded as a breach of the condition over the whole of that period, whether or not there was anyone in physical occupation during any particular part of that period? The answer to that, as it seems to me, is that where there has been a clear breach, in the sense of the use for other than an agricultural tenant, as was the case from 1993 onwards, a gap during which refurbishment took place, in order to make the dwelling more attractive for continuing breach, is a period during which the breach continued. It continued because the activities then being carried out in relation to it, whether marketing, whether sorting out the correct persons, or company, to do the work, whether doing the actual work itself, were all in furtherance of the breach of condition. Thus, as it seems to me, if enforcement action had been taken during the period when the negotiations were being carried out for the refurbishment to be done, or while the refurbishment was being carried out, or while the property was being marketed, it would have succeeded because all would have been properly regarded as breaches of the condition, because that was the purpose behind the activities being carried out.[42]Of course, I recognise, as Keene LJ made clear, that intention by itself cannot lead to enforcement action. Thus, for example, if an agricultural tenancy comes to an end and work is then done to refurbish the premises, it will not be possible to enforce until the fruits of that work are shown to exist in the form of a tenancy in breach of the condition, because the mere carrying out of work would not, by itself, constitute a breach of the condition. But, if that work were carried out after there had been a breach by occupation by non-agricultural workers, and it was apparent and clear on the facts that the activities thereafter were being carried out in order to further that breach, then in my view that breach would properly be regarded as continuing. Thus, I do not think it is necessary, or indeed desirable, to look to see whether there is occupation throughout the period.[43]There are real problems in deciding that occupation by the landowner, or by the owner of the property, during any particular period, constitutes a breach because it would not be occupation as an agricultural worker. It is all very well to say that there would be no enforcement while the property was not being occupied by an agricultural worker, but the concept of even a technical breach is one which I find very difficult. I recognise that there could possibly be circumstances in which it might be appropriate for an owner to be regarded as a relevant occupier — I say that because of my recognition that in this jurisdiction it is dangerous for a court to say never — but I think it is much more appropriate to approach it in the way that I have indicated to be the correct way. It avoids, apart from anything else, any questions as to what amounts to de minimis, and it avoids detailed questions as to whether any particular individual was, or was not, in occupation and somewhat artificial views being formed as to whether there is, or is not, an occupation at any material time. Thus, although I take the view that the Inspector's reasoning was not correct, in particular in paragraph 29, his conclusion that there was a continuing breach is one which he was not only entitled to reach, but, on the facts, bound to reach. In those circumstances this claim must be dismissed.[44]MR WARREN: My Lord, in the light of that judgment, I apply for the claimant to pay the first defendant's costs.

MR JUSTICE COLLINS: Yes, I have seen the schedule.

[46]MR WARREN: There has been a summary. It needs to be amended slightly to reflect the shorter hearing.

MR JUSTICE COLLINS: Miss Boyd, you cannot resist costs in principle, can you?

[48]MISS BOYD: In principle, my Lord, no.

MR JUSTICE COLLINS: Incidentally, Mr Fookes, I assume you are not applying.

[50]MR FOOKES: I am applying, my Lord.

MR JUSTICE COLLINS: I think you have a somewhat uphill task, having regard to Bolton.

[52]MR FOOKES: Can I say I was going to address your Lordship in the light of Bolton?

MR JUSTICE COLLINS: Yes, of course.

[54]MR FOOKES: Obviously, we know there are no rules in Bolton; it is a matter of discretion. In Bolton, of course, they gave the developer the developer's costs. All the guidance in Bolton went to developers. Now, there is a different position as far as compulsory purchase is concerned, where in compulsory purchase appeals usually both parties get their costs, because they have different interests. My Lord, in the only case that has been reported in the encyclopedia on certificates of lawfulness both parties got their costs, the reason being that I am not here as a developer; I am here because I am seeking to ascertain my legal rights.

MR JUSTICE COLLINS: You are akin to a developer, are you not?

[56]MR FOOKES: Anyone coming to defend a certificate of lawfulness is, because they are not applying for planning permission, (inaudible). They are trying to establish and defend their legal right they already enjoy, which is akin to compulsory purchase.[57]MR JUSTICE COLLINS: I follow that. On the other hand, you have not, with respect, really added anything to what the Secretary of State was --[58]MR FOOKES: That is today, maybe, because I have not taken time — I did not need to — but of course if one goes back through the pleadings, I put in the Bovale statement — a very full statement — back in September.

MR JUSTICE COLLINS: I lost on that in the Court of Appeal, as you know.

[60]MR FOOKES: Well, at the time it was necessary to do that. Also, of course, the arguments are the arguments that we put forward and had to detail. It is not a straightforward case. There was quite a lot of research. Therefore, in my submission, this falls on a line with the certificate cases and CPO cases, where there is a different interest, technically, than a normal planning appeal, certainly more than the guidance on two developers, or a developer and --

MR JUSTICE COLLINS: No, that I recognise.

[62]MR FOOKES: So, doing that historical research, it was very useful for my learned friend, the Secretary of State, to be able to rely upon my statement to produce his much shorter skeleton argument. I appreciate he goes first, but there are special circumstances in this case.[63]MISS BOYD: My Lord, if I can respond --

MR JUSTICE COLLINS: I imagine you do not accept that you have to pay both, or do you?

[65]MISS BOYD: No, absolutely not, my Lord. Can I say, first of all, in respect of the proper order that ought to be made with regard to the Secretary of State, clearly the claimant had to win on both grounds in order to succeed in the claim.

MR JUSTICE COLLINS: You have lost on both.

[67]MISS BOYD: My Lord, I hope what was clear in respect of the second ground was that it was most important for the authority to seek clarification with regard to the proper application of the law and future LDC applications.[68]MR JUSTICE COLLINS: Maybe, but it may be that it is not inappropriate that you pay for that clarification, since you lost on the merits.[69]MISS BOYD: My Lord, in respect of that particular point, we would say that there should be, at the very least, given your findings in respect of the legal test applied by the Inspector with regard to the second ground, that it is quite right that the Council sought to challenge the reasoning and to seek clarification as to what is the appropriate approach in matters such as these and that, therefore, any order as to costs ought to be reduced accordingly. My Lord, I have to say that we have not been served with a schedule of costs of the Secretary of State or indeed of --[70]MR JUSTICE COLLINS: If I am with them and you have to pay the lot, you are agreeable to pay what they are asking for?[71]MISS BOYD: My Lord, I do not know, because I have not seen the schedule.

MR JUSTICE COLLINS: You have not seen the schedule?

[73]MISS BOYD: My Lord, no, I have not seen either party's schedule.[74]MR WARREN: My Lord, I apologise. My instructions are that this statement was served on the claimant, but, be that as it may, here is a copy of it for Miss Boyd.[75]MR JUSTICE COLLINS: Let me put it this way, I am not going to, of course, make any order of a particular amount until you have had an opportunity to consider it. On the other hand, I would probably be fairly surprised if you challenged it, having regard to the amount usually claimed by the Secretary of State. But I am against you on reduction. I think you must pay the whole amount to the Secretary of State; but what I will do, in the circumstances, is to say, "Detailed assessment if not agreed", because I do not think it is fair to bulldoze her into an agreement. All I can say is I imagine, in order to save any further costs, and having regard to what is claimed, it is likely that there will be an agreement.[76]MR WARREN: May I make a correction? I have not made it to the sheet that I have handed across to Miss Boyd — certainly your Lordship also has it on the papers — which is in relation to the attendance at the hearing, which was down for 7½ hours at £1,200 --

MR JUSTICE COLLINS: It will be reduced, yes.

[78]MR WARREN: -- £640, which changes the total to £8,815, my Lord, and add that might I respectfully suggest that my learned friend be given 5 or 10 minutes to consider this, rather than go through the additional administrative procedure of assessing it?

MR JUSTICE COLLINS: All right, if you are content with that.

[80]MISS BOYD: My Lord, can I just take some instructions. (Pause). My Lord, it would be preferable for the order to be made as to detailed assessment.

MR JUSTICE COLLINS: You want a detailed assessment?

[82]MISS BOYD: Yes, my Lord.[83]MR JUSTICE COLLINS: Of course, you run the risk that if you do not agree, and you lose out on detailed assessment, you are going to have to pay the costs of the detailed assessment.[84]MISS BOYD: Of course, my Lord.[85]MR JUSTICE COLLINS: All I can say is I do not think I can bulldoze them into an agreement. I have said what I have said. I would hope that there will be some agreement in due course.[86]MR WARREN: I very much hope so, my Lord. I am shown the e-mail attachment — the statement sent yesterday at midday — but there we are.

MR JUSTICE COLLINS: These things sometimes do not get through.

[88]MR WARREN: Yes, apologies if there has been a mistake on our part, but it would appear not. I hear what your Lordship says — the matter will be dealt with by detailed assessment.[89]MR JUSTICE COLLINS: If one party does not agree to an assessment, I do not think I can do it properly.[90]Mr Fookes, I am sorry. I am against you. I do not think it is appropriate, in the circumstances of this case, for there to be additional costs of your client. I fully understand that the situation is not entirely the same as the Bolton case and this is not a question of developers in that sense, and you are seeking to clarify your rights. On the other hand, the reality is that you did not add anything of substance to the arguments being put forward by the Secretary of State. In those circumstances, I think it is consistent with the principle that is applied in these planning cases that I am afraid you do not get your costs. You do get your certificate, though.[91]MR FOOKES: My Lord.

MR JUSTICE COLLINS: Thank you all.