Huddlestone v Bassetlaw District Council

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Did the statutory exclusion of compensation for loss arising from the prohibition in a stop notice of an activity that would be a “breach of planning control” apply in the circumstances of this case? That is the question in the appeal before us.

The appellant, Mr Keith Huddlestone, appeals against the decision of the President of the Upper Tribunal (Lands Chamber), Sir David Holgate, dated 10 July 2017, on a preliminary issue, that section 186(5)(a) of the Town and Country Planning Act 1990 prevented him from pursuing his claim for compensation under section 186 for loss said to have been caused by a stop notice served by the respondent, Bassetlaw District Council, in the course of enforcement action against alleged breaches of planning controlinvolving the development of “residential accommodation units” on land at Lound Hall, Colliery Access Road, Bothamsall. I granted permission to appeal on 22 December 2017.

On 22 May 2006 the council had granted planning permission for development on the site, described in the decision notice as a “change of use of land for siting holiday lodges”. The planning permission was subject to 24 conditions, including one restricting the use of the lodges to “holiday accommodation only”, and 15 requiring various details to be submitted and approved by the council,12 of which required such approvals to have been given before development commenced. Development was subsequently carried out on the site before the

In its decision, dated 10 July 2017, the Tribunal rejected the argument put forward on behalf of Mr Huddlestone, which included the submission that section 186(5)(a) did not apply in this case because, while the stop notice was in force between 19 November 2009 and 8 June 2010, he could have complied with the conditions imposed on the 2006 planning permission by applying for and obtaining the outstanding approvals required.

Section 172(1) of the 1990 Act confers on a local planning authority the power to issue an enforcement notice where it appears to it “(a) that there has been a breach of planning control”, and “(b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations”. Section 171A(1) defines a

carrying out development without the required planning permission; or

failing to comply with any condition or limitation subject to which planning permission has been granted,

When an enforcement notice is served but before it comes into effect, the local planning authority may serve a stop notice under section 183. That section provides:

In this section and sections 184 and 186 “relevant activity” means any activity specified in the enforcement notice as an activity which the local planning authority require to cease and any activity carried out as part of that activity or associated with that activity.

A stop notice may be served by the local planning authority on any person who appears to them to have an interest in the land or to be engaged in any activity prohibited by the notice.

The local planning authority may at any time withdraw a stop notice (without prejudice to their power to serve another) by serving notice to that effect on persons served with the stop notice.”

the enforcement notice to which it relates is withdrawn or quashed; or

the period for compliance with the enforcement notice expires; or

notice of the withdrawal of the stop notice is first served under section 183(7).”

Section 186 provides for compensation arising from the service of a stop notice:

the enforcement notice is quashed on grounds other than those mentioned in paragraph (a) of section 174(2);

the enforcement notice is varied (otherwise than on the grounds mentioned in that paragraph) so that any activity the carrying out of which is prohibited by the stop notice ceases to be a relevant activity;

the enforcement notice is withdrawn by the local planning authority otherwise than in consequence of the grant by them of planning permission for the development to which the notice relates; or (d)the stop notice is withdrawn.

A person who, when the stop notice is first served, has an interest in or occupies the land to which the notice relates shall be entitled to be compensated by the local planning authority in respect of any loss or damage directly attributable to the prohibition contained in the notice …

A claim for compensation under this section shall be made to the local planning authority within the prescribed time and in the prescribed manner.

in respect of the prohibition in a stop notice of any activity which, at any time when the notice is in force, constitutes or contributes to a breach of planning control …

Cease using the land (shown edged red on the attached location plan) for the siting of residential accommodation units;

Remove all the accommodation units [from] the land …

Mr Huddlestone appealed against the notice on grounds (a), (c), (f) and (g). Under section 175(4) of the 1990 Act, the notice lost its effect pending the determination of the appeal.

The council’s stop notice, served on 19 November 2009, stated:

Activity to Which This Notice Relates.

What You Are Required To Do.

When This Notice Takes Effect.

In his decision letter dated 8 June 2010 the inspector allowed Mr Huddlestone’s appeal against the enforcement notice on ground (c). He did not consider the other grounds. Under section 184(4)(a), therefore, the stop notice immediately ceased to have effect. The inspector’s reasoning is summarized in the Tribunal’s decision (in paragraph 14):

Therefore, [Mr Huddlestone’s] failures to apply for and obtain approval of details under those conditions did not prevent the activities and works which had been carried out from being treated as a commencement of development, with the consequence that the planning permission had been lawfully implemented;

Although those failures were breaches of condition which amounted to breaches of planning control, the first enforcement notice had incorrectly specified a different breach of planning control which had not taken place, namely the making of a material change of use of the land without planning permission;

Likewise, the fact that the positioning of the lodges did not accord with drawing number 04 and that some of the lodges had been used as permanent rather than as holiday accommodation constituted breaches of condition;

Although [the council] could take enforcement action for the breaches of condition, it would be inappropriate to use section 176(1) of [the 1990 Act] to correct the failure in the first enforcement notice to identify the correct breaches of planning control;

The appeal succeeded under ground (c) and the first enforcement notice was quashed.”

The council’s second enforcement notice – issued on 13 July 2011, but withdrawn on 28 October 2011 – did not bear on the preliminary issue before the Tribunal.

In the third enforcement notice – issued by the council on 17 November 2011 – the alleged breach of planning control was “[non-compliance] with Conditions 4, 8 and 19 of [the May 2006 planning permission]”. The council’s reasons for issuing the notice, as they related to condition 19, stated:

The incongruity of the appeal development is exacerbated by the form and appearance of the lodges. … The lodges, given their square plan form and pyramidal roofs, look like a regimented series of domestic double garages with glazed panels substituted for garage doors and converted for residential use. In this regard the lodges are urban in character and are significantly out of place in their countryside location.

The eight lodges on the enforcement land are incongruous in siting, form and appearance and have had a significant adverse effect on the character and appearance of the countryside. The siting of the lodges on the land conflicts with policy DM4 of the Bassetlaw Core Strategy and the Development Management Policies Development Plan Document. The ground (a) appeal thus fails.”

The Tribunal accepted the submission made on behalf of Mr Huddlestone by Mr Jonathan Wills that the first enforcement notice and the stop notice could simply have prohibited the use of the land for the siting of lodges without complying with the conditions of the May 2006 planning permission – as the third enforcement notice did. But the Tribunal also pointed out that “an appeal against such an enforcement notice could not have succeeded under ground (c) (or indeed ground (b)), so no entitlement to compensation would have arisen under section 186(1) and the effect of section 186(5)(a) would not even need to be addressed” (paragraph 46 of the decision). The landowner’s rights under the 2006 planning permission were “granted subject to the 24 conditions which formed an intrinsic part of those rights”. The “approvals which [Mr Huddlestone] had to obtain in order to be able to carry out the development without being in breach of planning control, comprised not just the 2006 consent itself, but also the approvals required under the conditions in that consent” (paragraph 47). The inspector’s decision of 8 June 2010 had determined that the conditions requiring the approval of details before development commenced were “not pre-conditions to the lawful implementation of the permission nor … did they go to the heart of the planning permission” (see Hart Aggregates and Greyfort Properties Ltd. v Secretary of State for

Mr Wills had argued, in effect, that so long as the necessary approvals could have been obtained at the relevant time this would be enough to prevent section 186(5)(a) from applying. The Tribunal rejected that submission. In its view, the statutory language requires one to look at the “actual circumstances” as they were while the stop notice was in force (paragraphs 50 and 51). Mr Wills’ argument did not accord with Parliament’s intention that a local planning authority “should not be deterred from serving a stop notice by the risk of an error in the related enforcement notice giving rise to a liability for compensation, where that compensation relates to an activity which is in breach of planning control” (paragraph 52). It also went against the “reality principle” (see Trocette Property Co. Ltd. v Greater London Council (1974) 28 P. & C.R. 408, Inland Revenue Commissioners v Gray [1994] S.T.C. 360,

The Tribunal did not accept that its understanding of section 186(5)(a) offended the principle that a statute should not be held to have taken away private rights of property without compensation unless the intention to do so is expressed in clear and unambiguous terms (see Colonial Sugar Refining Co. Ltd. v Melbourne Harbour Trust Commissioners[1927] A.C. 343). The approvals required under condition 19 and other conditions would have had to be obtained even if the stop notice had not been served (paragraph 55). Mr Wills had submitted that if approvals of the required details had been obtained, the stop notice would still have prevented additional lodges being sited on the land in compliance with the details approved. But in those circumstances, once the breach of planning control had been overcome, “the exclusion in section 186(5) will cease to apply”. If the statutory requirements are met, the claim for compensation could include losses caused by the stop notice in the period when the prohibited activity no longer constitutes, or contributes to, a breach of planning control. One of the difficulties with the argument put forward on behalf of Mr Huddlestone was that “its effect would be to put [him] in a better position than he would have been in if … he had complied with planning control … or if enforcement action had been taken against him in the way in which he says it should have been” (paragraph 56).

Mr Wills’ argument before us largely repeated the submissions rejected by the Tribunal. Elaborating on the grounds in the appellant’s notice, he submitted that section 186(5)(a) did not exclude the payment of compensation in the circumstances of this case. The requirement in the stop notice to “[cease] the introduction and siting of any further accommodation units” prohibited future development regardless of whether it would be carried out in compliance with the May 2006 planning permission and its conditions. Where, as here, a stop notice prohibits future activity, it cannot be said that such activity “constitutes or contributes to a breach of planning control”. Mr Huddlestone could lawfully have carried out the development prohibited by the stop notice. It would not necessarily have been a breach of planning control to do so. In fact, no further “accommodation units” were brought on to the site while the stop notice was in force. It was wrong to assume, however, that if this had been done it would have been in breach of planning control. The planning permission approved the siting of lodges on the land, subject to conditions. But the stop notice prohibited such development even if it had been approved under the conditions imposed. The exclusion of compensation in section 186(5)(a) did not apply to such development. No words needed to be read into the subsection to justify this conclusion. Mr Wills submitted that it is wrong in principle to treat “pre-conditions” differently from other conditions imposed on a planning permission. Section 186(5) can be disapplied even if “pre-conditions” have not been discharged. Compensation can be claimed under section 186 for the lost opportunity to carry

For the council, Mr Jonathan Mitchell submitted that the Tribunal’s decision was correct. Section 186(5)(a) clearly prevents compensation being paid in a case such as this. Here, as was common ground, for the whole period in which the stop notice was in force – from 19 November 2009 to 8 June 2010 – development that had already been carried out on the site remained in breach of a number of conditions imposed on the planning permission, including conditions 4, 8 and 19. And for the whole of that period, a number of pre-commencement conditions, including condition 19, remained undischarged. The siting of “further accommodation units” on the land at any time in that period, contrary to the prohibition in the stop notice, would therefore have been a breach of planning control. The effect of section 186(5)(a) in these circumstances was to exclude the payment of compensationfor any loss attributable to the prohibition.

In my view, as Mr Mitchell invited us to accept, the Tribunal was right to conclude and decide as it did. I do not think its reasoning can be faulted.

The lawfulness of the stop notice itself is not in question here. No cogent submission was made to the Tribunal, or to us, to the effect that it was not a lawful notice under section 183(1) and (2). Nor has it been challenged in a claim for judicial review.

We are concerned with a different question, which goes to the true interpretation of the relevant provisions in section 186 of the 1990 Act – in particular, subsections (2) and (5) – and to their application in the circumstances of this case.

The Tribunal’s understanding of the provisions of section 186 was, in my view, correct. Subsection (2) creates an entitlement to compensation “in respect of any loss or damage directly attributable to the prohibition contained in the notice …”. The meaning of those words seems plain. Such compensation must be for ascertainable loss, and the loss must be

The meaning of subsection (5)(a) seems equally clear. It excludes compensation being paid for the prohibition in a stop notice of “any activity” that, “when the notice is in force, constitutes or contributes to a breach of planning control”. This concept is not difficult, or surprising. The subsection means what it says, nothing more and nothing less. Compensation is not to be paid for an activity prohibited by a stop notice if, while the notice is in force, that activity would be, or would contribute to, a breach of planning control. As the Tribunal pointed out (in paragraph 45 of its decision), a provision to this effect reflects the thinking of

The Tribunal recognized that there is no need, and that it would be inappropriate, to read words into section 186(5)(a) that Parliament did not choose to insert. In particular, it rightly resisted the suggestion, or implication, in Mr Wills’ argument that the provision ought to be construed as if it were inapplicable when the prohibited activity “could” or “might” cease to be – or would not “necessarily” constitute, or contribute to – a breach of planning control. That is not what the subsection provides. It does not distinguish between different breaches of planning control. If Parliament had intended to exempt from the exclusion in section 186(5)(a) compensation for loss caused by a prohibition on development being carried out in breach of a pre-commencement condition, or any other type of planning condition, it could have done so. But it did not. No such gloss on the statutory words can be justified. It is not necessary to clarify statutory language that is neither ambiguous nor opaque. Nor is it necessary to read additional words into the subsection to avoid conflict with the principle that a statute ought not to be construed as taking away property rights without compensation unless the intention to do so is clear. There is no such conflict.

From the understanding of section 186(5)(a) urged on us by Mr Wills it would seem to follow that, in a case where the breach of planning control might have been overcome by some approval yet to be granted under a condition, the exclusion of the entitlement to compensation would be disapplied for the whole period when a stop notice was in force. Even if that approval were not granted while the stop notice was in force, or afterwards, the mere possibility of its being granted would be enough. This would have two consequences. First, the exclusion in section 186(5) would be widely disapplied. It would be removed in many cases where a breach of planning control had in fact persisted while a stop notice was in force. Secondly, the predictability and certainty inherent in the statutory scheme for compensation would be largely negated. In many cases hypothetical assumptions would have to be made about an approval that, in fact, was either not sought orsought but not granted in the period when thestop notice was in force.

This cannot have been Parliament’s intention. It is not what the statutory words say, nor what they imply. A breach of planning control does not cease to be a breach of planning control merely because it can be overcome. And the statutory scheme does not yield an entitlement to compensation for the prohibition by a stop notice of an activity that involves a breach of planning control. I agree with the Tribunal’s conclusions to the same effect.

In my view, the crucial point in this appeal is simply that, on the day when the stop notice came into force and from then until the day on which it ceased to be in force, the development it required to cease fell within the exclusion in section 186(5). This was so because throughout that period it could be rightly said that such development “constitutes or contributes to a breach of planning control”.

The effect of the prohibition in the stop notice was to bring about the cessation of an activity described, in clear terms, as “the introduction and siting of any further accommodation units, caravans, chalets and other structures onto the land”. Put simply, this was the activity thatthe stop notice stopped. As paragraph 2 of the notice stated, the council considered it expedient that that activityshould cease, before the period for compliance with the enforcement notice issued on 27 October 2009 had occurred. Plainly, therefore, the council believed it was likelyto continue in the future if it were not prohibited by a stop notice served at that stage. And this was perfectly understandable, given that the siting of lodges on the land in breach of

The fact that the activity identified in the stop notice would involve development that had not already occurred, and the fact that such development might not be in breach of planning control by the time it was carried out, does not matter. The requirement to cease an activity that had already begun, in breach of conditions on the May 2006 planning permission, was, in effect, a prohibition on a continuing activity that, at the time of the service of the stop notice, constituted or contributed to a breach planning control. The requirement to “cease” that activity was appropriate. It was, in effect,a requirement to refrain from continuing to develop the land in breach of planning control. As the Tribunal recognized, however, if the precommencement conditions had all been discharged while the notice was in force, the exclusion of compensation in section 186(5)(a) would then have been lifted.

But that did not happen. There is no dispute that throughout the period when the stop notice was in force, from 19 November 2009 to 8 June 2010, no details were submitted to the council for approval under condition 19 of the May 2006 planning permission, either for the eight lodges against which the council enforced, or for any further development still to be carried out on the land. Nor is there any dispute that the introduction of any more lodges – or, as it was put in the stop notice, any “further accommodation units” – during that period, without first having complied with the requirements of condition 19 and the other conditions requiring prior approval of details, would have been a breach of planning control. Any development carried out on the land under the May 2006 planning permission in that period would have been in breach of planning control, because outstanding approvals of detail under conditions on the permission had not been sought and obtained. This is not speculation. It is a matter of fact, and not contentious.

In the six and a half months during which the stop notice was in force, its requirements were evidently complied with. No additional lodges were brought on to, and sited on, the land. No attempt was made to obtain the council’s approval of the outstanding details required under the conditions (cf. the judgment of Woolf L.J. in F.G.Whitley & Sons Co. Ltd. v Secretary of State for Wales (1992) 64 P. & C.R. 296, at pp.307 to 309). It may be that those approvals could have been obtained in that period, and further development carried out on the site that would not have been in breach of planning control. The stop notice did not prevent this from being achieved. It did not stand in the way of the necessary approvals being sought, or given. If those approvals had been obtained, the siting of additional lodges on the land would not then have been a breach of planning control.

It follows in my view – as the Tribunal concluded and for the reasons it gave – that in this case the exclusion of compensationin section 186(5)(a) did apply, and the appeal must therefore fail.

Another way of looking at the case, and with the same result, might be this. The entitlement to compensation under section 186(2) is strictly confined to loss and damage “directly attributable to the prohibition contained in the notice …”. In this case, however, it may be said that the “loss”, even if there had been any, would not have been “directly attributable” to the prohibition in the stop notice, but to the conditions on the planning permission themselves,the failure of the landowner to seek and obtain the requisite approvals to discharge them in a timely way, and his decision not to carry out any further development in breach of condition while the stop notice was in force. On this analysis too, there would have

For the reasons I have given, I would dismiss the appeal.

I agree.