Lawson Builders Ltd & Ors v Secretary of State for Communities & Local Government & Anor [2013] EWHC 3368 (Admin)

[2013] EWHC 3368 (Admin)

Case No CO/1413/2013

& CO/12544/2012

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT sitting in LEEDS

Handed down at

Venue Manchester Civil Justice Centre

Bridge Street West

Venue Manchester, M60 9DJ

Date 7 November 2013

Before

THE HONOURABLE MR JUSTICE SUPPERSTONE

Between

(1) LAWSON BUILDERS LTDClaimants

(2) PAUL LAWSONClaimant

(3) JENNIFER LAWSONClaimant

(1) SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENTDefendants

(2) WAKEFIELD METROPOLITAN DISTRICT COUNCILDefendant

Mr Peter Goatley (instructed by Messrs Lawsons Solicitors) for Claimants

Mr Gwion Lewis (instructed by The Treasury Solicitor) for First Defendant

Mr John Hunter (instructed by Wakefield MDC Legal Dept) for Second Defendant

Hearing Hearing dates: 10-11 October 2013

Judgment

Mr Justice Supperstone :

Introduction

[1]The Claimants apply under section 288 of the Town and Country Planning Act 1990 (“the Act”) to quash the decision of an Inspector appointed by the Secretary of State, the First Defendant, dated 15 October 2012 relating to two residential properties known as 15 and 17 Bracken Hill, Ackworth, Pontefract, West Yorkshire. The decision letter deals with two appeals under section 195 of the Act against the refusal by the City of Wakefield Metropolitan District Council, the Second Defendant, to grant a certificate of lawful use in the terms sought, in particular(1) the Council’s refusal, in part, to grant an application under section 191(1)(a) of the Act for a certificate that the use of 15 Bracken Hill, as a dwelling, without complying with conditions attached to a previous planning permission in 2004 (“the 2004 Permission”) was lawful; and

(2) the Council’s refusal to grant an application under section 192(2)(a) for a certificate that the proposed use of 17 Bracken Hill, without complying with conditions on the 2004 Permission, would be lawful. (In the section 288 appeal I shall refer to the Claimants as “the Claimants”, save where I refer specifically to individual claimants).

[2]In addition the First Claimant appeals by way of case stated against the decision of District Judge Mallon at Wakefield Magistrates’ Court on 3 December 2012 to convict it of an offence under section 187A(9) of the Act of failing to comply with a Breach of Condition Notice (“BCN”) served by the Council on 27 May 2011. The First Claimant was fined £1,000, ordered to pay a victims’ surcharge of £15 and the costs of the Council in the sum of £9,124. (In the appeal by way of case stated I shall refer to the First Claimant as “the Appellant”).

[3]On 4 March 2013 HHJ Roger Kaye QC ordered that the application and appeal be joined together.

Background

[4]On 8 October 2004 the Council granted full planning permission (under reference number 04/99/63308/A) for residential development comprising two dwellings on land at Bracken Hill (“the 2004 Permission”) to a Mr and Mrs Stafford. The land with the benefit of that permission was subsequently purchased by the First Claimant. The First Claimant commenced construction of No. 15 and No. 17 in 2006. In October 2007 No. 15 was completed and that house was sold to Mr & Mrs Lawson, the Second and Third Claimants. They moved in to it on 9 November 2007 and they have occupied it as sole residents since that time. No. 17 was substantially completed by the end of January 2008. It was fully fitted out by the middle of February 2008. No. 17 has never been occupied and remains in the ownership of the First Claimant. It is common ground that both dwellings had been completed for four years; nothing turns on No. 17 only having been substantially completed.

[5]The 2004 Permission included conditions which required that development was not to be commenced until certain details had been submitted to and approved by the Council. Most importantly, for present purposes, Condition 12 of the 2004 Permission, which was required in the interests of traffic safety, provided:

“Development shall not commence until a scheme (including construction details) for the following on site works have been submitted to and approved in writing by the Local Planning Authority. The construction (to an adoptable standard) of the carriageway widening to 5.0m, the provision of a 2m wide footway along site frontage and the provision of a turning shown on the approved plans. The development shall not be brought into use until the above works have been carried out in accordance with the approved details and, unless otherwise approved in writing by the Local Planning Authority, the works have been vested on the highways authority.”

[6]The First Claimant did not comply with Condition 12. In a letter dated 9 April 2009 the Council requested that the development in respect of No. 15 and No. 17 was carried out in accordance with, inter alia, condition 12 but that if the First Claimant wished to pursue a revised proposal then this would have to be dealt with by means of a new planning application to vary or remove the relevant conditions.

[7]On 9 July 2009 the First Claimant made an application to the Council, inter alia, to seek permission to remove Condition 12 of the 2004 Permission. The application was refused on 5 November 2009 and an appeal was lodged against that decision. By a decision letter dated 7 September 2010 (“the 2010 Permission”) the First Claimant’s appeal was allowed in part. Planning permission was granted for two dwellings in accordance with the 2009 application(1) without compliance with Conditions 10, 11, 12 and 13 of the 2004 Permission, but

(2) subject to other conditions which were imposed by the decision letter namely, in effect, new Conditions 12 and 13.

[8]Conditions 12 and 13 of the 2010 Permission provided:

“12. Within one month of this decision, a scheme, including construction details, surface finishes and drainage provision, for the carriageway widening, the footway/verge crossings, the 1m wide footway and the turning facility (of minimum dimensions 5.0m by 7.m) shall be submitted to and approved in writing by the local planning authority. The works shall be carried out in accordance with the approved details and shall be completed within three months of the date of this decision. These works shall be retained at all times thereafter, be kept free from obstruction and available for use for their intended purposes at all times. 13. Within three months of this decision, 2.0m by 2.0m vehicle/pedestrian intervisibility splays shall be provided on both sides of the access/drive such that there is no obstruction to visibility greater than 600mm above the level of the adjacent footway. Such splays shall thereafter be retained.”

[9]On 5 January 2011, on a “without prejudice” basis, the Claimants submitted a scheme required by the new Condition 12 to the Council, which was subsequently approved by the Council.

[10]On 27 May 2011 the Council served a BCN on the Claimants on the basis that Condition 12 in the 2010 Permission had not been complied with and requiring the works referred to therein to be carried out within three months.

[11]On 24 February 2012 the Claimants made two Lawful Development Certificate (“LDC”) applications to the Council in respect of No. 15 and No. 17. The application in respect of No. 15 was made on the basis that Condition 12 (and other conditions) in the 2004 Permission had not been discharged prior to development commencing. In consequence, the building works were unlawful. Further, No. 15 had been completed and occupied continuously since 9 November 2007. In consequence the Council could not now take enforcement action against either the building or its use as it was beyond the time period for enforcement as set out in s.171(B)(1) of the 1990 Act. The application in respect of No. 17 was made on a similar basis, No. 17 being “substantially complete” at the end of January 2008 and the final finishing off works completed by 14 February 2008.

[12]The application sought a LDC for the use of No. 17 as a dwelling “without complying with the conditions imposed on planning permission 04/99/63308/A” (i.e. the 2004 Permission). In respect of No. 15, the grounds of the application were that the building works were substantially completed more than four years before the date of the application.

[13]The Council’s decisions on the two LDC applications are both dated 10 May 2012. The decision in relation to No. 17 describes the application in terms similar to those in the application, but the decision in relation to No. 15 adds the words “but subject to compliance with the conditions of permission Ref. 09/1307/FUL granted on appeal on 7 September 2010” to the words in the application.

[14]In both cases the LDC application was granted in the following terms:

“1. The Council is satisfied that the use of the building as a dwelling (Class C3) without compliance with conditions on permission Ref. 04/99/63308/A is lawful by virtue of having been authorised as a result of permission Ref. 09/1307/FUL granted on appeal on 7th September 2010 and the operation of section 75 of the 1990 Act. 2. However, for the avoidance of any doubt, the Council is not satisfied that any non-compliance with conditions on permission Ref. 09/1307/FUL granted on appeal on 7th September 2010 is or would be lawful. Such non-compliance remains capable of being enforced against. 3. Furthermore, for the avoidance of any doubt, the Council is not satisfied that, in the absence of permission Ref. 09/1307/FUL granted on appeal on 7th September 2010, the use of the building as a dwelling would be lawful since the relevant provision for establishing immunity for such a use would be section 171B(3) which would require the use to have continued for a period of ten years, rather than sections 171B(1) and (2) as relied upon in the application.”

[15]The Claimants appealed against these decision to the First Defendant pursuant to section 195 of the Act. By a decision dated 15 October 2012, the Inspector appointed by the First Defendant directed that in respect of No. 15 the appeal be dismissed and in respect of No. 17 no further action be taken in respect of the appeal.

[16]The reasons for the Inspector’s decision are set out at paragraphs 7-13 in the Decision Letter:

“7. It is common ground that the 2004 Permission was not lawfully implemented because of the failure to comply with a number of conditions precedent. The Council also accepts that the building operations involved in the erection of nos.15 & 17 are immune from enforcement as they were substantially complete more than 4 years ago and no enforcement action was taken against them in that period, pursuant to s.171B(1) of the Act. 8. What remains in dispute is whether the 2010 permission was implemented and, if not, whether the use of no. 15 as a dwelling is lawful as that use commenced more than 4 years ago and no enforcement action was taken against it in that period. 9. The appellant argues that the 2010 permission was never implemented. However, it is clear that both dwellings were substantially complete by the time of the application (in 2009) and, to that extent, implementation had already taken place. I agree with the Council that what the application sought was effectively the grant of planning permission with a retrospective effect under s.73A of the Act. The wording of the replacement conditions 12 and 13 in the 2010 appeal decision reflect the fact that the development had already occurred. There is no question of a breach of planning control by failure to comply with conditions precedent in such a case. The grant of the 2010 planning permission, albeit retrospective, conveyed consent for the use for which the buildings were designed, in accordance with s.75(3) of the Act, hence the grant by the Council of the LDC with the added wording which is the subject of this appeal. 10. The actions of the appellant in response to the 2010 permission appear consistent with his having relied upon the permission. He did not challenge the decision in any way or make a revised application. On the contrary, albeit late, he submitted a scheme to discharge the new condition 12. This was approved by the Council in January 2011. 11. A further test of whether the 2010 permission was implemented is whether the Council would have been in a position to issue an enforcement notice against either the buildings or their use during the relevant time period. The answer must surely be no, because the appellant would have had the ready defence, by reference to that permission, that no breach of planning control had occurred. It would make nonsense of the legislation if the appellant could shelter under the protection of a planning permission without being bound by any of the conditions to which it is subject. I conclude that the 2010 permission was implemented and that the Council’s decision to modify the grant of the LDC to include reference to that wording was well-founded. 12. In the event that I am wrong on the first matter, I now go on to address the second matter, that of the appropriate timescale to achieve lawfulness. It is common ground that the building operations to erect 2 dwellings, commenced in 2006 and substantially completed in 2007/08, were not lawful. Both parties refer to the Supreme Court decision in Welwyn Hatfield Borough Council v SSCLG and another [2011]. In that case, the Council granted planning permission for a barn. What was built was a new building which had the external appearance of a barn but was, in fact, designed and constructed to be used as a single dwelling. There, it was held that when the building was first used as a single dwelling, there was no active change of use from a former use (in that case a nil use was argued) which would have triggered the 4 year immunity period set out in s.171B(2) of the Act. Instead, the relevant period was held to be 10 years, pursuant to s.171B(3). 13. That appears to be very much the situation at the present appeal property. It had no permitted use as s.75 of the Act applies only to development which has received planning permission. It was not put to any other use, including a nil use, prior to residential occupation. Therefore, there was no active change of use to trigger s.171B(2) of the Act. Accordingly, I am led to conclude that the immunity period in the present case is 10 years pursuant to s.171B(3). This confirms my view that the Council’s decision to modify the grant of the LDC to include reference to the 2010 permission was well-founded.”

Statutory framework

[17]“Development” which requires planning permission may take the form of either operational development or a material change in the use of land: ss.55(1) and 57(1), of the Act.

[18]Section 70 of the Act (headed “Determination of applications: general conditions”) which empowers local planning authorities to grant planning permission on an application made to them and to impose conditions provides:

“(1) Where an application is made to a local planning authority for planning permission— (a) subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or (b) they may refuse planning permission.” (a) subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or (b) they may refuse planning permission.”

[19]Section 72 of the Act states, in so far as is material:

“(1) Without prejudice to the generality of section 70(1) conditions may be imposed on the grant of planning permission under that section… (3) Where— (a) planning permission is granted for development consisting of or including the carrying out of building or other operations subject to a condition that the operations shall be commenced not later than a time specified in the condition; and (b) any building or other operations are commenced after the time so specified, the commencement and carrying out of those operations do not constitute development for which that permission was granted.”

[20]Section 73 of the Act provides as follows:

“73. Determination of applications to develop land without compliance with conditions previously attached (1) This section applies, subject to sub-section (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted. (2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and— (a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and (b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application. (3) Special provision may be made with respect to such applications— (a) by regulations under section 62 as regards the form and content of the application, and (b) by a development order as regards the procedure to be followed in connection with the application. (4) This section does not apply if the previous planning permission was granted subject to a condition as to the time within which the development to which it related was to be begun and that time has expired without the development having being begun. (5) Planning permission must not be granted under this section to the extent that it has effect to change a condition subject to which a previous planning permission was granted by extending the time within which— (a) a development must be started; (b) an application for approval of reserved matters (within the meaning of section 92) must be made.” (a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and (b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application. (a) by regulations under section 62 as regards the form and content of the application, and (b) by a development order as regards the procedure to be followed in connection with the application. (a) a development must be started; (b) an application for approval of reserved matters (within the meaning of section 92) must be made.”

[21]Section 73A of the Act provides:

“73A. Planning permission for development already carried out (1) On an application made to a local planning authority, the planning permission which may be granted includes planning permission for development carried out before the date of the application. (2) Sub-section (1) applies to development carried out— (a) without planning permission; (b) in accordance with planning permission granted for a limited period; or (c) without complying with some condition subject to which planning permission was granted. (3) Planning permission for such development may be granted so as to have effect from— (a) the date on which the development was carried out; or (b) if it was carried out in accordance with planning permission granted for a limited period, the end of that period.” (a) without planning permission; (b) in accordance with planning permission granted for a limited period; or (c) without complying with some condition subject to which planning permission was granted. (a) the date on which the development was carried out; or (b) if it was carried out in accordance with planning permission granted for a limited period, the end of that period.”

[22]An inspector on appeal under section 78 has all the same powers as a local planning authority would have had (section 79(1)).

[23]An application for a certificate confirming the lawfulness of existing development can be made under section 191 of the Act as amended, which provides: “(1) If any person wishes to ascertain whether—(a) any existing use of buildings or other land is lawful; or

(b) any operations which have been carried out in, on, over or under land are 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 specifying the land and describing the use, operations or other matter. (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. (3) For the purposes of this Act 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— (a) the time for taking enforcement action in respect of the failure has then expired; and (b) it does not constitute a contravention of any of the requirements of any enforcement notice or breach of condition notice then in force. (4) If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operation or other matter described in the application, or on that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application.” (a) any existing use of buildings or other land is lawful; or (b) any operations which have been carried out in, on, over or under land are 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, (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. (a) the time for taking enforcement action in respect of the failure has then expired; and (b) it does not constitute a contravention of any of the requirements of any enforcement notice or breach of condition notice then in force.

[24]Section 171A of the Act provides so far as relevant: “(1) For the purposes of this Act:(a) carrying out development without the required planning permission; or

(b) failing to comply with any condition or limitation subject to which planning permission has been granted constitutes a breach of planning control. (2) For the purposes of this Act: (a) the issue of an enforcement notice (defined in section 172); or (b) the service of a breach of condition notice (defined in section 187A), constitutes taking enforcement action.” (a) carrying out development without the required planning permission; or (b) failing to comply with any condition or limitation subject to which planning permission has been granted (a) the issue of an enforcement notice (defined in section 172); or (b) the service of a breach of condition notice (defined in section 187A),

[25]Section 171B of the Act sets the periods within which enforcement action may be taken in respect of breaches of planning control for the purposes of section 191(2) and (3). Where the breach involves building operations, no enforcement action may be taken at the end of a period of four years beginning with the date on which the operations were substantially completed (s.171B(1)). Where the breach consists of a change of use, save for a change of use of a building to a single dwelling house (for which the relevant period is again four years: s.171B(2)), no enforcement action may be taken at the end of a period of ten years beginning with the date of the breach (s.171B(3)).

[26]An application for a certificate confirming the lawfulness of a proposed use or development use may be made under section 192 of the Act as amended, which provides: “(1) If any person wishes to ascertain whether—(a) any proposed use of buildings or other land; or

(b) any operations proposed to be carried out in, on, over or under land, would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use or operations in question. (2) If, on an application under this section, the local planning authority are provided with information satisfying them that the use or operations described in the application would be lawful if instituted or begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application. (3) A certificate under this section shall— (a) specify the land to which it relates; (b) describe the use or operations in question (in the case of any use falling within one of the classes specified in an order under section 55(2)(f), identifying it by reference to that class);

(d) specify the date of the application for the certificate. (4) The lawfulness of any use or operations for which a certificate is in force under this section shall be conclusively presumed unless there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness.” (a) any proposed use of buildings or other land; or (b) any operations proposed to be carried out in, on, over or under land, (a) specify the land to which it relates; (b) describe the use or operations in question (in the case of any use falling within one of the classes specified in an order under section 55(2)(f), identifying it by reference to that class); (c) give the reasons for determining the use or operations to be lawful; and (d) specify the date of the application for the certificate.

[27]Section 179 of the Act provides that it is an offence where an enforcement notice is not complied with:

“(1) Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried on, the person who is then the owner of the land is in breach of the notice. (2) Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence. (3) In proceedings against any person for an offence under sub-section (2), it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice.”

[28]Section 187A of the Act provides for enforcement conditions. The material parts of the section provide as follows:

“(1) This section applies where planning permission for carrying out any development of land has been granted subject to conditions. (2) The local planning authority may, if any of the conditions is not complied with, serve a notice (in this Act referred to as a ‘breach of condition notice’) on— (a) any person who is carrying out or has carried out the development; or (b) any person having control of the land, requiring him to secure compliance with such of the conditions as are specified in the notice. (3) References in this section to the person responsible are to the person on whom the breach of condition notice has been served. (4) The conditions which may be specified in a notice served by virtue of sub-section (2)(b) are any of the conditions regulating the use of the land. (5) A breach of condition notice shall specify the steps which the authority consider ought to be taken, or the activities which the authority consider ought to cease, to secure compliance with the conditions specified in the notice. (9) If the person responsible is in breach of the notice he shall be guilty of an offence. (11) It shall be a defence for a person charged with an offence under sub-section (9) to prove— (a) that he took all reasonable measures to secure compliance with the conditions specified in the notice; or (b) where the notice was served on him by virtue of sub-section (2)(b), that he no longer has control of the land.” (a) any person who is carrying out or has carried out the development; or (b) any person having control of the land, (a) that he took all reasonable measures to secure compliance with the conditions specified in the notice; or (b) where the notice was served on him by virtue of sub-section (2)(b), that he no longer has control of the land.”

The section 288 application Grounds of appeal

The section 288 application

[29]Mr Peter Goatley, for the Claimants, puts forward six grounds of appeal: i) In paragraph 9 of the Decision Letter the inspector has erroneously found that either the 2004 or 2010 Permissions had been implemented by the works carried out by the Claimants. ii) The Inspector has sought to erroneously re-classify the 2010 Permission as a Permission granted under section 73A of the Act rather than section 73. In the alternative he has failed to grapple with the fact that the 2010 Permission was granted under section 73. In the further alternative the Inspector has failed to give any or any adequate reasons for so doing. iii) The Inspector concluded, erroneously, that the consent granted by the 2010 Permission conveyed consent for the use for which the buildings were designed, in accordance with section 75(3) of the Act and thereby endorsed the wording which the Council had then applied to the relevant certificate. iv) In paragraph 10 of the Decision Letter the Inspector erroneously found that the 2010 Permission had been implemented by reason of his perception as to subsequent acts on the part of the Claimant. v) The Inspector applied the wrong test as to whether the 2010 Permission had been implemented. vi) The Inspector erroneously applied the decision of the Supreme Court in Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] UK SC 15.

Discussion

[30]The general principles of law in relation to challenging inspectors’ decisions are not in issue. I have been referred to the well-known passages in Seddon Properties v Secretary of State for the Environment

(1981) 42 P & CR 26

at 28; Ashbridge Investments Ltd v MHLG

[1965] 1 WLR 1320

at 1326 G-H; and South Bucks District Council v Porter (No. 2)

(2004) 1 WLR 1953

, per Lord Brown at paras 35 and 36.

[31]Grounds 1-3 fall for consideration together.

[32]In relation to Ground 1, Mr Goatley submits that the 2004 Permission, by common consent, had not been implemented. The 2010 Permission had not been granted. In consequence there can be no proper basis for the Inspector to find in paragraph 9 of the Decision Letter, as he did, that implementation had already taken place.

[33]There is no error in relation to the 2004 Permission. The Inspector correctly records in paragraph 7 of the Decision Letter that it was “common ground that the 2004 permission was not lawfully implemented because of the failure to comply with a number of conditions precedent”. Nowhere in paragraph 9 does he conclude that the 2004 Permission had been implemented.

[34]As for the 2010 Permission I accept the submission made by Mr Gwion Lewis, for the Secretary of State, that the relevant parts of paragraph 9 must be read as a whole:

“9. The Appellant argues that the 2010 permission was never implemented. However, it is clear that both dwellings were substantially complete by the time of the application (in 2009) and to that extent, implementation had already taken place. I agree with the Council that what the application sought was effectively the grant of planning permission with a retrospective effect under s.73A of the Act. …”

The basis for finding that the 2010 Permission had been implemented by the time the 2009 application was made was the Inspector’s finding that what the 2009 application “sought was effectively the grant of planning permission with a retrospective effect”. That being so, Mr Lewis submits there was nothing incongruous in the Inspector’s finding that the 2010 Permission had been implemented before it was formally granted. This is inherent in the nature of a grant of retrospective planning permission.

[35]Mr Lewis rightly observes, in my view, that the Claimant’s real complaint is that the Inspector erred in characterising the 2010 Permission as a grant of retrospective planning permission, which is the basis for Ground 2.

[36]In relation to Ground 2, Mr Goatley submits first, that the application that was made in 2009 and granted in 2010 was not an application under section 73A of the Act. It was an application made under section 73. Second, there is no entitlement for an Inspector to re-classify the statutory status of a permission previously granted under section 73 by another Inspector.

[37]The application which led to the grant of the 2010 Permission was in form made pursuant to section 73 of the Act. On its face it is a section 73 application and that is how the Council dealt with it. Further Mr Goatley emphasises that what was being sought in the application was the removal of conditions, not the grant of planning permission with a retrospective effect. If the Claimants had been informed before the decision of the 2012 Inspector that the 2010 application was being treated as an application under section 73A, then the Claimants could have withdrawn the application. The fact is that until 2012 the Council had not suggested that the application was other than one under section 73. As such the grant was one that could be implemented or not at the election of the Claimants; and Mr Goatley submits it was not implemented. The 2010 Inspector did not proceed on the basis he was determining a section 73A application. If he was changing the basis on which he was considering the application then it would be only fair that he should inform the parties that he was doing so because of the materially different considerations and consequences. Indeed there is a conceptual difference between the two sections. The Claimants could have withdrawn the application, if they had chosen to do so.

[38]It was, Mr Goatley submits, for the Claimants to decide whether to make an application under section 73 or section 73A. The consequences of making an application under section 73 or section 73A are different. Section 73(2) delimits the matters to which regard may be had; by contrast the decision maker when determining an application under section 73A can have regard to a wider range of factors. (See R (Wilkinson) v Rossendale BC

[2002] EWHC 1204 (Admin)

, per Sullivan J at paras 49-54).

[39]However it was the 2012 Inspector’s view that on a proper reading of the 2010 decision as a whole that the 2010 Inspector in fact approached the application before him as if it were in substance an application seeking planning permission retrospectively under s.73A. Mr Lewis points to the opening words of section 73(A)(1) (“On an application made to the local planning authority” (emphasis added)) which makes it clear that Parliament anticipated Section 73(A) may be engaged when an application is made under a separate section of the Act. In Wilkinson Sullivan J was concerned with the conceptual distinction between section 73 and section 73A, but I do not read his judgment as suggesting it would be unlawful for a decision maker to approach a section 73 application as one that can be properly determined under section 73A if he is satisfied that the application triggers the requirements that have to be met under section 73A for that provision to apply. In the present case section 73A does apply (see section 73A(2)(b) and (c)).

[40]Mr Goatley submitted that there does not appear to be a power under section 73A to impose conditions. The short answer to that point, as Mr Lewis notes, is that there is a power in section 70(1) which enables conditions to be imposed under section 73A.

[41]In paragraph 9 of the Decision Letter the Inspector set out his reasons as to why he “agree[d] with the Council that what the application sought was effectively the grant of planning permission with a retrospective effect under s.73A of the Act”. That being so, I do not consider that there was any re-classification of the 2010 Permission by the 2012 Inspector.

[42]The wording of conditions 12 and 13 of the 2010 Permission were, as Mr Lewis submits, predicated on the development permitted already having been built. It seems to me that Mr Lewis is correct to observe that the time constraints imposed by these conditions would not have been appropriate if the 2010 Inspector had approached the application before him as an application for planning permission prospectively under s.73, given that there is no obligation in law to implement any planning permission granted. The position is different when it comes to imposing conditions on a retrospective planning permission. In these circumstances the applicant has already elected to implement pre-emptively the permission sought. This enables the decision maker, when considering conditions, to require action to be taken in relation to the pre-existing development so that the situation is regularised in planning terms. The Inspector had before him a breach of planning control that Mr Lewis submits needed to be regularised. Mr Goatley suggests the Inspector had no power to regularise the situation. However in my view he was entitled for the reasons I have stated to deal with the section 73 application as being in reality a section 73A application and to deal with the situation which then existed.

[43]Mr Lewis points to a number of passages in the 2010 decision letter which, in my view, support this submission:(1) “The access and turning conditions require works to be completed prior to occupation which cannot now be achieved” (para 3);

(2) “I have therefore allowed the appeal but altered the conditions to reflect the above and also to take account of the fact that one of the dwellings is already occupied” (para 14); and

(3) “It is essential that the scheme be submitted and completed in a short period of time as the harm from additional traffic is already occurring” (para 15).

[44]There was no statutory obligation on the inspector to notify the Claimants that the 2010 application would be decided on a different basis from that applied for. It is also not clear to me for the reasons submitted by Mr Lewis that natural justice required him to inform the Claimants what he was proposing to do; that would have deprived the Inspector of the opportunity to do that which he considered appropriate in the public interest if the Claimants then decided to withdraw the application. In any event, even if there was a breach of natural justice by the 2010 Inspector, that has no effect, in my view, on the 2012 decision. It was clear to the parties that there was an issue as to the 2010 decision and they were given an opportunity to make their submissions.

[45]Ground 3 is, in substance, no different from Ground 2. Mr Goatley submits that the Inspector failed to grapple with the point that the 2010 Permission was a permission granted pursuant to section 73, not section 73A of the Act. The consequence of that error, he submits, was that the 2010 Permission amounted to a further or different grant of planning permission for which there was no evidence of actual implementation.

[46]For the reasons I have given I consider that the 2012 Inspector was justified in concluding that the 2010 Permission took effect, in substance, as a grant of retrospective planning permission under s.73A. In my view the Inspector did not err in law in his approach to these provisions.

[47]I turn next to Ground 4. This ground is based on the Inspector’s observations at paragraph 10 of the Decision Letter. Mr Goatley submits there was no need to challenge the decision. It was for the Claimants to decide whether or not to implement the grant of planning permission; they could have made a revised application. Further, he takes issue with the reference in paragraph 10 to the submission of a scheme to discharge the new condition 12. The submission was made, he said, on a “without prejudice” basis, and was approved. However I do not accept that in that paragraph the Inspector made a finding that the 2010 Permission had been implemented by reason of his perception as to subsequent acts on the part of the Claimant. At paragraph 9 the Inspector had identified the basis on which he made the finding that the 2010 Permission had been implemented which was that the 2010 Inspector had approached the application before him as one for retrospective permission. The second sentence in paragraph 9, as Mr Lewis accepts, could have been better expressed, but the third sentence is clear:

“I agree with the Council that what the application sought was effectively the grant of planning permission with a retrospective effect under s.73A of the Act”

. Paragraph 10 of the Decision Letter merely sets out other matters said to be consistent with that finding.

[48]Ground 5 is based on the hypothetical test posed by the Inspector in paragraph 11 of the Decision Letter. However, as in the case of Ground 4, the Claimants, in my view, overlook the fact that the main basis for the Inspector finding the 2010 Permission to have been implemented is set out at paragraph 9 of the decision letter, namely that the 2010 Permission took effect retrospectively. Mr Lewis accepts that the last sentence of paragraph 11 would have been better placed in a separate paragraph, but it does not affect my understanding of that paragraph.

[49]Paragraphs 8-11 of the Decision Letter must be read as a whole. Paragraph 9 sets out the main basis for finding the 2010 Permission to have been implemented. Paragraphs 10 and 11 set out secondary matters that the Inspector considers are consistent with that view. At paragraph 11 he states that the likely difficulty of enforcing against the buildings or their use given the existence of the 2010 Permission was consistent with the finding that he had made at paragraph 9 by reference to the 2010 appeal decision that the 2010 appeal permission had been implemented. As Mr Lewis observes, he does not say that the 2010 Permission had been implemented because it would be difficult to issue an enforcement notice in respect of the buildings or their use.

[50]Finally, Ground 6 attacks paragraph 12 of the Decision Letter. Mr Goatley submits that the Welwyn Hatfield case can be readily distinguished upon its facts. Further he submits that that decision is not authority for the proposition that, pursuant to the statutory regime contained in section 171(B) of the Act, a building, as a structure, can acquire immunity from any requirement for its removal, whereas its use cannot.

[51]Plainly the facts of that case are different from those of the present case, but the relevance of the Welwyn Hatfield decision is the statement made by Lord Mance at paragraph 17 of his Opinion. If a dwelling house is erected unlawfully and used as a dwelling house from the outset, as in the present case, the unlawful use can still properly be the subject of enforcement action within ten years, even if the building itself, as a structure, becomes immune from enforcement action after four years.

[52]The Claimants have, in my view, failed to identify any error of law in paragraphs 12 and 13 of the Decision Letter. In any event the observations made by the Inspector in those paragraphs only arise for consideration if the Inspector erred on the issue as to whether the 2010 Permission had been implemented.

Conclusion

[53]In my judgment, for the reasons I have given, none of the grounds of appeal are made out. The case stated appeal Background

The case stated appeal

[54]On 19 January 2012 the Council commenced proceedings under section 187A(9) of the Act against the Appellant for non-compliance with the BCN served on 27 May 2011. The BCN required the Appellant to comply with condition 12 attached to the 2010 Permission.

[55]The Appellant did not dispute that it had failed to comply with the notice. It argued first, that the 2010 Permission had not been implemented and accordingly it was not bound by its terms, including condition 12; alternatively the Appellant relied upon the statutory defence under section 187A(11) of the Act that it had taken all reasonable measures to secure compliance with the notice. The turning head required to be provided and approved pursuant to condition 12 fell within the property known as 15 Bracken Hill. That land is and was not owned by the Appellant at the time the notice was served and the owners had refused to allow any works to be carried out on their land.

[56]The District Judge delivered a written judgment dated 28 November 2012, which was handed down on 3 December 2012, rejecting the Appellant’s arguments.

[57]In summary the District Judge found, in so far as is relevant,(1) that the permission had been implemented and that the Appellant was bound by its conditions in light of the fact that the development authorised by the permission had already been completed when it was granted, and also because schemes had subsequently been submitted by the Appellant in order to discharge its conditions (paragraphs 8-10); and

(2) having regard to the test to be found in R v Beard

[1997] 1 PLR 64

, the Appellant could not establish that it had taken “all reasonable measures to secure compliance” with condition 12 in light of the fact that Mr Lawson was himself a director of the Appellant and there was little evidence of anything being done by the Appellant to attempt to secure Mr and Mrs Lawson’s consent to the works (paragraphs 12-16).

[58]The District Judge has stated the following questions for the opinion of the court: i) Was I entitled to find that the 2010 PP [Planning Permission] had been lawfully implemented prior to service of the BCN dated 27/05/11 in light of the agreed facts that(a) the buildings authorised by the 2010 Permission had been constructed prior to the 2010 Permission being granted and

(b) the Defendant had submitted schemes for the approval of Local Planning Authority as required by condition 12 after the Permission was granted? ii) Was I entitled to find that the statutory defence was not made out even though the Appellant knew that the consent of the owners of No. 15 would not be forthcoming in any circumstances and where such consent was required in order to comply fully with the BCN dated 27/05/11 given that I found that there was little evidence of anything actually being done by the Defendant to secure such consent? Discussion Question 1: whether the District Judge was entitled to conclude that the 2010 Permission had been implemented and that the Appellant was obliged to comply with its conditions.

Discussion

[59]The Appellant’s grounds of appeal contain two grounds in relation to this first question. At paragraph 6 of the judgment of the District Judge it is recorded that the central argument relied upon by the Appellant was that it never implemented the 2010 Planning Permission and it is not therefore bound by its terms, including condition 12. The first ground is that the District Judge held erroneously that the 2010 Permission was retrospective, despite the fact that the Appellant’s application for planning permission was made and validated under section 73, not under section 73A, of the Act and despite the fact the Inspector appointed by the Secretary of State did not amend the description of the proposal when he granted planning permission by a decision letter dated 7 September 2010. The second ground is that the District Judge erroneously found that the 2010 Permission had been implemented by virtue of the fact that the two dwellings had already been built by the date that the 2010 Permission had been granted.

[60]Mr Goatley accepts that the first ground substantially follows the second ground in the section 288 application. It was, he submits, not within the power of the District Judge to re-classify the status and nature of the planning permission granted.

[61]As for the first ground, Mr John Hunter, for the Council, suggests that the thrust of the Appellant’s submissions appears to be a matter not specifically raised as a question for the court in the case stated. In any event, he submits, broadly for the same reasons as Mr Lewis put forward on behalf of the Secretary of State in the s.288 appeal, the Judge was entitled to find that the permission was retrospective regardless of whether or not it was a section 73 application.

[62]I agree with Mr Goatley that it is impliedly raised. However I consider, for the reasons that I have given in the section 288 application, that the Judge was entitled to regard the permission granted by the Inspector in 2010 as retrospective. I intend no disrespect to the helpful submissions made by Mr Hunter on this ground by not dealing with them in detail. However in the light of the conclusion I have reached in this regard on the section 288 application, it is not necessary to do so. In summary, Mr Hunter supported the submissions made by Mr Lewis that the Inspector was entitled to find that the permission was retrospective regardless of whether or not it was a section 73 application. Indeed he suggests that on the agreed facts it would have been irrational for her to have held otherwise.

[63]As for the second ground, I accept Mr Hunter’s submission that whilst a developer who is granted permission for development that is yet to occur can choose not to implement it, by definition where retrospective permission is granted, the development authorised by the permission has already been carried out. If a developer does not wish to be bound by a particular condition then they can either not apply for permission at all (and run the risk of enforcement action), apply for permission but appeal under section 78 against any condition they dislike, or make a further application under section 73 for permission without compliance with that condition. If, however, they either choose not to challenge it, or are unsuccessful in their challenge, then they must comply with it.

[64]In my view on an objective assessment (as to the need for which, see Staffordshire CC v Riley

[2001] EWCA Civ 257

at para 26 per Pill LJ) the Judge was entitled to reach the conclusion that he did on the facts of this case. Not only had the Appellant carried out the development which the permission authorised, but it had thereafter sought and obtained approval of schemes pursuant to its conditions. In these circumstances I do not consider that the Judge erred in finding that the Appellant was obliged to comply with the conditions. If the 2010 Permission was retrospective, which in my view it was, then the District Judge was plainly entitled to find on the facts that the permission was implemented. Question 2: whether the District Judge was entitled to find that the statutory defence was not made out.

[65]Ground 3 in the Appellant’s grounds of appeal is that the District Judge failed properly to understand the nature and ambit of the statutory defence provided by section 187A(11)(a) of the Act. In particular, in circumstances in which the owners of No. 15 Bracken Hill had unequivocally refused to allow any works to take place on their land, the Inspector erred in holding that the Defendant should have taken more steps to persuade the owners to give their consent to carry out works the subject of the Breach of Condition Notice.

[66]In order to succeed in the defence under sub-section (11)(a), it is necessary for a defendant to prove, on the balance of probabilities, that “he took all reasonable measures to secure compliance with the condition specified in the notice”.

[67]In R v Beard the Court of Appeal considered similar provisions in section 179(3) of the Act which applies to prosecutions for non-compliance within enforcement notices. This requires a defendant to show that “he did everything he could be expected to do to secure compliance”. Hobhouse LJ stated:

“We accept, as does counsel for the Prosecution, that the phrase ‘everything he could be expected to do’ must implicitly be read as ‘reasonably expected’. It applies an objective criterion of reasonableness, having regard to all the relevant circumstances, in particular any disabilities to which the owner of the land is subject.”

[68]Mr Goatley referred to the decision in R v Wood

[2001] EWCA Crim 1395

where the Court of Appeal further considered the proper approach to the statutory defence under section 179(3). The Court held, in relation to the words “did everything that he could reasonably be expected to do” that, “The Defendant is only entitled to be found ‘not guilty’ if (taking each count separately) [he] can show that his circumstances were such that in reality and in common sense he was unable to comply with the particular obligations imposed on [him] by the enforcement notice.”

[69]Mr Goatley submits that the District Judge was presented with clear evidence that the owners of No. 15 would not countenance any works taking place on their land. In a letter dated 23 February 2012 the Second and Third Claimants wrote:

“We … confirm that we are aware that criminal proceedings are being brought against Lawson Builders Ltd. For the avoidance of any doubt, we will not allow Lawson Builders LTD or any other third parties or person onto our land to carry out any works whatsoever.”

The only proper inference to be drawn from this evidence, Mr Goatley submits, is that any further attempts by the Appellant to persuade Mr and Mrs Lawson to provide their consent would have come to nothing.

[70]I reject this submission. Mr Lawson is a director of the Appellant. It is, as Mr Hunter observes, contrived for the Appellant to suggest that it could not obtain the consent needed when the person allegedly withholding consent was its own director. The District Judge recorded that the court heard little if any evidence of anything actually being done by the Defendant to attempt to secure Mr and Mrs Lawson’s consent to allow the works to be done (para 16). On the evidence, in my view, the Judge was entitled to find that the statutory defence was not made out.

Conclusion

[71]In my judgment both questions in the case stated are to be answered in the affirmative.

CONCLUSION

[72]For the reasons I have given both the application under section 288 of the Act and the appeal by way of case stated are dismissed.