Adur District Council v Secretary Of State For Environment & Anor

A condition attached to a temporary planning permission must be construed by reference to the permission as a whole and according to its terms. Under Article 3(4) of the Town and Country Planning (General Permitted Development) Order 1995, only a condition then in force can prevent otherwise permitted development.

A condition restricting the authorised temporary use does not, without clear words, continue after the temporary permission has expired so as to exclude development rights arising under the Order. A temporary permission which makes land operational land under section 264(3) of the Town and Country Planning Act 1990 can therefore trigger those rights after expiry of the express permission.

The Council served an enforcement notice alleging an unauthorised material change of use at a former power-station site. The Secretary of State accepted an inspector's recommendation that the statutory undertaker's activities were permitted by Part 17, Class B of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995, and quashed the notice.

His Honour Judge Rich, sitting as a Deputy High Court Judge, allowed the Council's appeal. He held that conditions attached to a 1991 temporary permission for car storage continued to restrict the land's use and consequently prevented reliance on the Order. He remitted the notice to the Secretary of State.

The Secretary of State and the Port Authority appealed. The central issue was whether the temporary permission's conditions remained effective in 1995 so as to engage Article 3(4) of the Order.

1. Appeal allowed unanimously. Pill LJ and Chadwick LJ gave concurring reasons, with Peter Gibson LJ agreeing with both. The order of the Deputy High Court Judge was set aside.

2. The land was operational land because the 1991 permission satisfied section 264(3) of the Town and Country Planning Act 1990. Accordingly, development by the Port Authority which fell within Part 17, Class B of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 was permitted by Article 3(1), unless Article 3(4) applied.

3. Article 3(4) refers to a condition imposed by a planning permission which is then in force. It cannot prevent development merely because it would have conflicted with a temporary condition that had expired. The relevant question was therefore the true construction of the 1991 permission and its conditions, not the Council's intended planning outcome.

4. Read as a whole, the permission authorised car storage only until 31 December 1991. Condition 2 confined that authorised temporary use to car storage and prevented the permission from being enlarged by general permitted-development rights during its currency. It did not impose an enduring restriction after the temporary permission ended. Condition 1 required discontinuance and restoration when the permission expired, but did not prevent later rights from arising under the Order.

5. Consequently, no relevant condition restricted the land's use when the enforcement notice was issued. The operational-land status had triggered the Order, the permitted-development rights were exercisable, and there had been no breach of planning control. Pill LJ observed that appropriately framed conditions might in some circumstances exclude the Order's operation, but that question did not arise. Chadwick LJ additionally noted that a section 106 agreement could have been used to prevent the later Part 17 rights.

• Court of Appeal (Civil Division): Allowed the Secretary of State's and Port Authority's appeal, set aside the order of the Deputy High Court Judge, and upheld the conclusion that the enforcement notice should be quashed.
• High Court: His Honour Judge Rich, sitting as a Deputy High Court Judge, allowed the Council's appeal against the Secretary of State's decision and remitted the enforcement notice for rehearing and determination.
• Secretary of State: On 28 January 1998, accepted the inspector's recommendation under section 174(2)(c) of the Town and Country Planning Act 1990 and quashed the enforcement notice.