Handoll & Ors v Messrs Warner Goodman And Streat (a firm) & Ors

Planning permission authorises only development which materially complies with its terms and approved details. A building constructed materially outside the authorised development is unauthorised, even if the permission was relied upon when it was built. A condition attached to permission for the authorised development cannot regulate the unauthorised building. The court rejected the contrary reasoning in Kerrier District Council v Secretary of State for the Environment [1981] P&CR 284. The unauthorised building may also lack permission for its use and remain subject to separate enforcement powers.

The appellants owned The Paddocks, a bungalow on land at Stickney. Planning permission and approval of reserved matters concerned a dwelling on one field, subject to an agricultural occupancy condition. The bungalow was built wholly within a different enclosure, approximately 90 feet from the approved location.

In the consolidated proceedings, the Chancery Division decided the preliminary issue in favour of East Lindsey District Council, holding that the condition remained enforceable. The decision is reported at (1992) 66 P&CR 78. The appeal concerned whether the occupancy condition could apply to a building which the permission did not authorise.

The Court of Appeal unanimously allowed the appeal. Lord Justice McCowan delivered the leading judgment. Lord Justice Peter Gibson agreed, and Sir John May agreed with both judgments.

1. Authorised development. The court accepted that a building constructed otherwise than in accordance with the planning permission and approved details was not authorised by that permission. It was development carried out without planning permission and therefore unlawful for planning purposes. The material relocation of The Paddocks was sufficient to produce that result.
2. Occupancy condition. A condition restricting occupation attached to permission for the authorised development could not apply to a materially unauthorised building. Reliance on the permission did not make the condition applicable. Section 33(2) of the Town and Country Planning Act 1971 also supported the conclusion that, if the permission did not cover the building, it did not authorise the building’s use.
3. Authorities. Noble v Armitage [1962] EGD 534 and Sheppard v Secretary of State for the Environment and Another [1974] EGD 837 supported the principle that breach of a condition requires the development to which the condition is attached to have been carried out. F G Whitley & Sons Ltd v The Secretary of State for the Environment [1992] 3 PLR 72 supported asking whether the operations were authorised by the permission read with its conditions.
4. Kerrier. Kerrier District Council v Secretary of State for the Environment [1981] P&CR 284, which treated the permission as continuing to support the condition despite non-compliance with the approved development, was wrongly decided and could not stand. In any event, it was distinguishable because the building in Kerrier was on the approved site, whereas The Paddocks was outside it.
5. Practical consequence. The appellants’ construction did not give them an advantage. The building lacked permission for its use and could potentially be subject to enforcement for an unauthorised change of use. The preliminary issue was therefore answered in the negative. The appellants were awarded their costs, subject to legal aid taxation, and leave was given to apply to the House of Lords.

• Court of Appeal (Civil Division) allowed the appeal and answered the preliminary issue in the negative.
• Chancery Division (Mervyn-Davies J) decided the preliminary issue affirmatively on 21 October 1992. The decision is reported at (1992) 66 P&CR 78.