Arun District Council, R (on the application of) v First Secretary of State & Anor

JUDGE MOLE: This is an appeal under s.289 of the Town and Country Planning Act 1990 against a decision of an Inspector appointed by the First Secretary of State, the first defendant. That decision letter was dated 8th December 2004. In that decision letter, the Inspector upheld the appeal of the second defendant, Karen Brown, against an enforcement notice issued by the claimant, the Arun District Council.

The facts are briefly stated. The matter concerns a dwelling-house at 8 Ceres Place, in respect of which a planning application was made in 1987, or thereabouts, for permission to create an extension to form accommodation for a dependent relative. That is the way the development is described in the planning permission. The planning permission was dated 14th March 1988 and the Council granted permission, subject to a number of conditions.

Condition numbers 1, 2 and 3 are not directly relevant, although it is right to note that they show the Council's concern that the extension to accommodate, as the application has it, a dependent relative, would not be something that the Council would be prepared to countenance if it were to be used as a separate dwelling-house from the dwelling-house to which it formed an extension. There are conditions, for example, about windows on a particular elevation of the extension that show that the Council was concerned that the site was over-developed and that it was the fact that it was, in effect, a "granny flat" that, in the Council's eyes, made some difference.

Conditions 4 and 5 of this permission, together with their reasons, read as follows:

After some years it came to the attention of the Council that the extension was being used, it seemed to them, as a separate dwelling-house and they served an enforcement notice dated 7th April 2004. Because of the arguments of law that I shall turn to shortly, the date of the service of that enforcement notice is a material point in this appeal. The breach of planning control that was alleged was breach of condition 5. The enforcement notice recited condition 5 thus:

The Council recited that it appeared to them that the above breach of planning control had occurred within the last ten years and they set out their reasons why they found it expedient to take action.

Mrs Jones appealed against this enforcement notice. An inquiry was held on 20th October 2004 and the Inspector appointed by the First Secretary of State issued her decision letter, as I have said, on 8th December 2004. In her decision letter, the Inspector was clearly troubled about the interpretation of the condition that was the subject of the enforcement notice. One can hardly blame her where the enforcement notice itself seeks to amend the words of the condition in question, as this enforcement notice did.

The Inspector, as she records in the last sentence of paragraph 3, took an initial view which she explained in the inquiry that the condition was unlikely to be valid and enforceable because, as it was written in the planning decision notice, she said, it was not capable of bearing a sensible meaning. She then continued in the following way in paragraph 4 of her decision letter. She said:

I interpose in the Inspector's decision letter to note that the first issue that has to be considered in this case is whether or not the Inspector was right to hold that the condition was meaningless and there was nothing to suggest that it ought to be read in conjunction with the preceding condition. I used the words "whether the Inspector was right"; that is shorthand for what I shall set out shortly as being what I conceive to be the precise approach, and I shall deal with that later.

Another issue arose which is of considerable interest. It is whether or not the enforcement action was taken within a sufficient period of time from the date of the breach. The Inspector found as a matter of fact that it would seem that the breach took place some time in the autumn of 1996. If that is correct, and that is what the Inspector found, and the enforcement notice had to be served within four years, it is clear that the enforcement notice would be out of time. If, on the other hand, the enforcement notice had to be issued within ten years, it is equally clear that the enforcement notice would be in time. The second issue is which of those two time limits is the appropriate one in the circumstances of this case?

The Inspector examined the law in paragraphs 6 to 11, considered a number of authorities that were put before her and the advice to be found in various documents. She found that the relevant period on the proper interpretation of s.171B(2) was four years rather than ten. For that reason, the enforcement notice was too late when it was issued and the appeal succeeded on ground D.

Miss Williams, on behalf of the Arun District Council, challenges both those two conclusions of the Inspector. She argues that, first of all, the condition properly read in the context of the other condition immediately above it is capable of a perfectly sensible meaning. Secondly, she contends that on its true construction s.171B(2) of the Town and Country Planning Act means that although there is a four year limit where the breach of planning control that the enforcement notice is directed to is the making of a material change of use to use as a single dwelling-house, if the enforcement notice is instead directed to the breach of a condition, then the matter is governed by s.171B(3) and the time limit is ten years and not four.

I propose to deal first with the issue as to whether or not the condition is valid because that is a short and distinct issue that requires little setting out of the law. So the first issue is, is the condition valid? Mr Auburn, for the First Secretary of State, says that it is not for this court to substitute the proper interpretation, as it sees it, of the condition. Accurately stated, the issue is, was the interpretation that the Inspector actually gave to the condition within the reasonable range of interpretations open to her, even though the interpretation that she gave might not be the one that the court, left to itself, would favour?

It is tempting for the court to think that the proper interpretation of a question in a planning permission is a matter of law for the Judge, but I am quite prepared to, and do, approach the matter on the basis that Mr Auburn presses upon me as being the correct one. I am quite sure that the way that the Inspector expresses her view, as set out in paragraphs 4 and 5, betrays a wrong approach to the interpretation of conditions and I conclude, as a result, she reaches an interpretation that falls outside the range of interpretation that would reasonably be open to her. It is the most basic of principles that the document or documents that form a planning permission is or are to be read and understood as a whole. The surrounding context will usually be of considerable importance. Conditions in the planning permission may have one or more purpose. A particular planning purpose may well be best achieved by two or three succinct but related conditions, rather than one more cumbersome effort. In such circumstances, it would make no sense when seeking to interpret one condition to refuse to lift one's eyes to the conditions above or below it. If reading conditions together helps make it clear what they mean, then of course they must be read together and not kept in unnatural isolation. I have to say, I take such an approach to be too obvious to require any authority, although it seems to me that there is plenty of support in the cases. I instance as one example where I would find support for such an approach to interpreting a permission, the judgment of Sullivan J in the case of R v Hartlepool Borough Council and Able UK, which is reported at 2004 JPL 1088. I think that on a sensible reading of conditions 4 and 5, taking them together, their meaning is quite sufficiently clear, even though the Council appear to have had their doubts.

Condition 4 says that the extension hereby permitted shall be occupied only by Mrs J Brown. (The Council might have had problems if Mrs Brown had moved into the extension and sold the main house, but that is not what happened and I am not concerned about that.)

Condition 5 then says:

I agree with Mr Auburn and, indeed, I suppose, the Inspector, that if that condition is read completely on its own, it does not make any sense because "upon vacation", if that means by anybody or everybody, the extension would not be used as a single dwelling-house or, indeed, at all and would not be occupied by anybody. Such a condition would be nonsense. However, the condition does make sense if it is understood that when it says "upon vacation" it means upon vacation by the Mrs J Brown who has just been mentioned in the previous condition. Then all is clear. Condition 5 is to cover the situation when Mrs J Brown finally vacates and somebody else moves in. Where an Inspector is faced with two interpretations, one of which leaves a condition as simple nonsense, and the other which, by some slight reference to the previous condition, can be read to make reasonably good sense, it seems to me that it is unreasonable to refuse to allow the conditions to make sense. Of course, the Council did not help the Inspector very much by changing their minds about what the condition meant, but, in my judgment, they got it right in the end. That condition, read in context, is quite sufficiently clear to be both valid and enforceable.

With that, I turn to issue 2. Here it is necessary to set out the law in a little detail. I start with the definition of development. Section 55(3) of the 1990 Act says:

I also note, of course, that "building" in the Town and Country Planning Act includes any part of a building.

Section 171A deals with enforcement. It says:

Section 171B reads as follows:

The crucial issue in this case is the meaning of s.171B(2). How is it to be interpreted in a case such as this where there are two, or perhaps three, breaches. The first breach in this case would be the unpermitted material change of use in the change from a single dwelling-house at 8 Ceres Place to two separate dwelling-houses. That would be a breach in the case of both the original house and the ground floor flat. The second sort of breach would be the breach of the condition prohibiting the change of use from use as a single dwelling-house to use as two separate dwelling-houses. In this case, of course, that would apply only to the extension because only the extension was permitted subject to the relevant condition.

The issue can be stated this way. Does s.171B(2) mean that if there has in fact been a breach of planning control consisting in the change of use of a building to use as a single dwelling-house, no enforcement action may be taken at all after four years, even though the breach of planning control that the local authority actually enforce against is not the change of use but a breach of condition? Or does s.171B(2) mean instead that where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling-house, no enforcement action in respect of that breach of planning control, namely the change of use, may be taken after four years, but that does not prevent enforcement action in respect of a different breach of planning control, namely the breach of condition? Mr Auburn, on behalf of the first Secretary of State, argues in effect in support of the first interpretation, and Miss Williams in support of the second.

Mr Auburn makes four points. His first two points seem to me to be quite closely linked. He points to the literal words of the Act and he says those words set the terms of the provision. In effect, they impose a condition for the operation of the provision. That operation then covers both operational development and breach of condition. On such a reading, which he says is the most natural and most literal reading of the section, both a material change of use and a breach of condition are included, so long as the words of the section are engaged and there is an unpermitted material change in use to a change for a single dwelling-house. He goes on to say that this leads to a perfectly sensible result. The purpose of Parliament was to protect occupants of single dwelling-houses and to ensure that they would not live in dread of enforcement action brought against them, even though they had started to occupy or establish their single dwelling-house without planning permission, after longer than a reasonable length of time, which Parliament sets as four years as opposed to ten. If there are difficulties, they have to be accepted if those are the words of the statute and that is the intention of Parliament.

Mr Auburn draws my attention to documents that he says add some support to his contention, though, to be fair to him, he does not overstate the matter. He points out that his interpretation is clearly supported by the words of Circular 10/97 at paragraph 2.4, particularly 2.4(3). He might also claim the support of the Encyclopedia of Planning Law and Practice Volume 2, March 2004 issue at paragraph P171B.11.

On the other hand, Miss Williams points to a contrary view set out in a publication called Development Control Practice on page 102-004, which is unequivocally in support of her view.

Both counsel realistically anticipate that I am likely to derive only limited support from these various different publications. In the case of the two statements that are relied upon by Mr Auburn, they are no more than bold assertions, unsupported by any obvious reasoning. In the case of the Statement in Development Control Practice, which is supported by reasoning, on examination that reasoning is clearly flawed. So I do not derive a great deal of assistance from any of them.

Of greater authority, potentially, at least, is the judgment of Mr David Keene QC, as he then was, sitting as a Deputy High Court Judge in the case of Kings Lynn and West Norfolk Borough Council v Secretary of State for the Environment [1995] JPL 730. It is worth setting out what the Judge in that case said because it seems to me that Keene LJ, as he now is, is the only judge who has expressly addressed this point. I have been shown authorities in which other courts have come close to it, but in none of them has the point been directly confronted. At page 737 the Judge said this, after referring to a submission that had been made to him about s.171B(2):

The effect of the approach set out in that case would be consistent with the legislative intention the Judge identified to protect the occupier of a new single dwelling-house after four years. It is certainly easy to discern in the legislation a desire to protect occupants from the consequences of making a material change of use to use as a single dwelling-house beyond the period of four years. Whether or why that protection should necessarily extend to a breach of condition imposed expressly, and for good planning reasons, to prevent such change of use to a single dwelling-house is less than immediately obvious to me. The condition for the operation of s.171B(2) is the existence of a breach of planning control "consisting in the change of use of any building to use as a single dwelling-house." If there is no such breach, then the four year protection falls away and the limit on enforcement against breach of condition is the usual ten years. Thus, using a single dwelling-house, subject to, for example, an agricultural occupancy condition in breach of that occupancy condition may be enforced against within ten years, not four. Of course, the breach of such a condition may mean that the non-agricultural occupier loses their home. On the other hand, if the argument put forward on behalf of the First Secretary of State is right, if a canny farmer (not a rare breed) wishing to dispose of his farmhouse subject to its agricultural occupancy condition, to people who would not satisfy that condition were to sub- divide the farmhouse into two or more single dwelling-houses and then dispose of them, the local planning authority could only enforce against the breach of the agricultural occupancy condition within four years and not within ten.

To this, Mr Auburn says, with force, that because Parliament fails to protect everybody, it does not mean that it was not their intention to protect somebody. Lines need to be drawn and if, as a result, cases fall on one side or another and look anomalous, that is simply the consequence of the exercise and it should not deter us in circumstances where the language is clear. He is right about that, of course, and I do not put much weight on such points, save to say that I do not find it easy to see what legislative purpose such distinctions would serve and so I confine my reliance on arguments based on legislative purpose to the limited area where I can be confident what that legislative purpose was.

Miss Williams, on behalf of the Council, in her submissions pointed to the effect that the approach of the First Secretary of State would have upon imposing conditions preventing the use of part of a house as a single dwelling and acknowledged that. If the First Secretary of State's interpretation were correct it might be that such used could be controlled only by insisting upon a planning agreement.

Mr Auburn's fifth point was that little help was to be derived from the cases. That was common ground, I think. In the case of R v Tunbridge Wells Borough Council ex p Blue Boys Development Ltd [1989] 59 P&CR 315, the point of the case was that change of use from self-catering holiday units to permanent residential units did not constitute development. Both uses amounted to use as a dwelling-house within class 3 of the then Use Classes Order. So there was no breach of planning control that would operate s.171B(2). The chalets, whether holiday lets or permanent residences, were already in use as single dwelling-houses. So I do not find that case particularly helpful in the circumstances before me now.

Similarly, the case of Bloomfield v Secretary of State for the Environment, Transport and the Regions (1999) 2 PLR 79 is not on the point for the same reason. Again, on the facts of that case, there was no material change of use so the condition for the operation of 171B(2) was not satisfied.

So I come to my conclusion on the second issue. In the end, the resolution of this issue comes down to what seems to be the most natural and ordinary meaning of the words of s.171B and, in particular, s.171B(2). I must read those words as a whole and in context, unless there is some specific reason why the context would not be useful. Supposed legislative purpose can be a dangerous light to follow unless it shines clear. I can, at least, put some weight on the proposition that Parliament probably intended the result that makes the best sense, if the wording of the legislation permits that choice. The issue is free of any binding authority, perhaps surprisingly. The comments in a number of publications I do not find particularly persuasive for the reasons I have indicated. The nearest I have come to authority are the words I have set out of the Judge in the Kings Lynn case. I treat the reasoning of Keene LJ with the very greatest respect, even when it is expressed in terms as tentative as in that case. But in the end, his view was expressly not a concluded one and it is not clear from the report that the points had been fully explored before him.

I do not find Mr Guy's argument very persuasive. It does not seem to me that there is any real distinction to be drawn between "a breach of planning control consisting in the carrying out without planning permission of building ... or other operations" (s.171B(1)) and "a breach of planning control consisting in the change of use of any building to use as a single dwelling-house" (s.171B(2)) so far as the extent of the breaches they include is concerned. Either both provisions are limited to the specified breach, the statutorily defined set of circumstances that the breach has its being in, or the quoted words in both provisions simply impose a condition for the operation of the provision or set the terms of the provision.

So I return to the words of s.171B. In none of the sub-sections (1), (2) or (3), when those sub-sections say "no enforcement action may be taken" was it thought necessary to add "in respect of that breach of planning control." I do not find any reason to draw a distinction between particularly sub-sections (1) and (2) on the basis of the concluding words of those sub-sections, namely in sub-section (1) "beginning with the date on which the operations were substantially completed", and in sub-section (2) "beginning with the date of the breach". Those simply seem to me to be the appropriate words to define the period from which the time limit is to run. Although the "breach of planning control" in s.171B(1) can only consist in the carrying out of operational development without planning permission, the words "no enforcement action may be taken" are no less capable of covering enforcement action in respect of more than one sort of breach, such as development without planning permission and development in breach of condition, as the same words in s.171B(2). Substantial developments will usually be controlled by a number of conditions which cover a range of matters required to make the development acceptable. The conditions may cover an enormous range: highways conditions, landscaping conditions, operating conditions, including noise conditions, occupancy conditions are some of the more common sorts of condition.

Section 171B(1) could, if the First Secretary of State is right about s.171B(2), be read, on the face of it, as meaning that if there had been a breach of planning control that involved development without planning permission, for example, suppose that on a development site, the developers erect some structure not within the conditional permission which they have obtained, and in consequence of that operational development without permission, a number of conditions were also breached, then the time limit to enforce against the breach of conditions would not be ten years but would be four years. I put that to counsel for the First Secretary of State and he did not shrink from that conclusion.

To my mind, that would be a very strange and novel result. In my judgment, it is clear in s.171B(1) that the words "no enforcement action may be taken" mean in respect of that breach of planning control. It is so clear, reading the section as a whole, that it does not need to be spelt out by adding those extra words in. Exactly the same approach, it seems to me, is true for s.171B(2). Just as the words do not need to be spelt out in sub-section (1), so they do not need to be spelt out in sub-section (2). The words "no enforcement action may be taken" mean in respect of that breach of planning control, namely the change of use to use as a single dwelling-house. The provision does not mean "or in respect of any other breach of planning control that may have some connection with that breach of planning control."

I have not found it an easy point and it is surprising that it never seems to have been decided before. But in my judgment, s.171B(2) means, on the facts of this case, that the use of the extension as a separate dwelling involved a material change of use without planning permission. Certainly enforcement notice proceedings in respect of that breach of planning control would have had to be brought within four years. But given an enforceable valid condition prohibiting use as a single dwelling-house, the breach of such a condition was not caught by s.171B(2), but fell within 171B(3). It follows that enforcement action could be brought within ten years. It was, and was brought lawfully. The Inspector therefore erred in law in paragraphs 6 to 11 of her decision letter and in her conclusion that the appeal succeeded on ground (d).

I therefore conclude that the appeal of the first defendant, the Arun District Council succeeds and the decision of the Inspector dated 8th December 2004 will be quashed.

MISS WILLIAMS: I am grateful, my Lord. In the light of your Lordship's judgment, may I make an application for costs in this case?

JUDGE MOLE: Has there been an assessment in this case? I have not seen one. I have seen yours. Mr Auburn.

MR AUBURN: My Lord, I do not dispute the principle. For various reasons we consider it appropriate that the matter go off for detailed assessment.

MISS WILLIAMS: Yes.

JUDGE MOLE: All right. Then I make an order that there be detailed assessment of the costs, on the basis that the First Secretary of State is to pay the first claimant's costs.

MR AUBURN: If not agreed, because it is possible all parties would agree on a figure.

JUDGE MOLE: Yes, detailed assessment if not agreed.

MR AUBURN: My Lord, there is one other very small point. Obviously it is not appropriate to ask you for permission to appeal as this is a second appeal. In fact, the first Secretary of State has not decided whether it would wish to appeal, but we do ask for an extension of time to present an appeal to the Court of Appeal so that we can fully consider the matter. The normal time period would be 14 days following your decision, which is 14 days from today. We would ask that you grant an extension to 14 days following delivery of the transcript so that we can fully consider the matter on paper.

JUDGE MOLE: Yes, that seems reasonable. Then I will certainly extend time for you to deliver your Notice of Appeal, if any is so advised, until 14 days after the date upon which you receive the transcript. Thank you both very much for your assistance to me on what is an unexpectedly interesting point.