St Anselm Development Company Ltd., R (on the application of) v First Secretary of State

For the ten-year enforcement limit applying to a breach of a planning condition, the relevant breach is the particular failure to comply identified in the enforcement notice, together with the remedial steps required. The court must consider whether that specific failure could have been enforced against ten years earlier. It is unnecessary, and impermissible, to rewrite the planning condition so that it applies separately to each constituent part of the development. The condition and the enforcement provisions should instead be construed together, so that immunity attaches to the particular matter constituting the breach and does not deprive the planning authority of enforcement rights concerning other parts that remained compliant.

The claimant appealed under section 289 of the Town and Country Planning Act 1990 against an inspector’s dismissal of appeals concerning five enforcement notices issued by Westminster City Council. The notices alleged breach of a condition requiring the whole of a basement car park to be retained for vehicles of building occupiers and users.

Fourteen of the nineteen spaces had been used by outsiders continuously for more than ten years and were immune from enforcement. The five remaining spaces had been used by outsiders for less than ten years. The central issue was whether the earlier breaches concerning fourteen spaces caused the condition, or the remaining breaches, to become immune from enforcement under section 171B(3).

1. Appeal dismissed. The condition was clear. It required the whole car park, rather than merely some of its parts, to be retained for use by occupiers and users of the building.
2. The court rejected the claimant’s submission that there could be only one breach, arising when the whole car park first ceased to comply. That construction would produce an undesirable planning consequence: enforcement concerning compliant spaces could be lost merely because other spaces had been used in breach for ten years.
3. The condition should not be rewritten so as to impose a separate condition on every parking space. Nor was it necessary to rewrite section 171B(3). Sections 171A to 174 had to be construed together and applied purposively.
4. Under sections 173(1)(a), 173(2), 173(3) and 173(4), an enforcement notice must identify the matters constituting the breach and specify no more than the steps necessary to remedy it. The ten-year period therefore focuses on the particular failure alleged in the notice and the particular remedial steps required, rather than on the condition in the abstract.
5. Each notice sufficiently identified the individual parking space used in breach and required only that use to cease. The authority had therefore retained enforcement rights in respect of the five spaces whose unauthorised use had commenced less than ten years before the notices. The claimant was ordered to pay the first respondent’s costs, summarily assessed at £5,270.

The judgment describes an appeal under section 289 of the Town and Country Planning Act 1990 from an inspector’s decision letter dated 20 December 2002. The inspector had dismissed appeals against five enforcement notices on grounds (c) and (d), while also refusing one appeal on ground (a). The challenge to the ground (a) decision was not pursued.