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

A breach of a seasonal planning condition can acquire immunity from enforcement under section 171B(3) of the Town and Country Planning Act 1990. The breach need not consist of continuous non-compliance throughout every day of the ten-year period. The court must identify the particular condition and the particular matter constituting the breach, then determine as a matter of fact and degree when that breach began and whether ten years have elapsed. The relevant comparison is whether an enforcement notice could have been issued during each of the preceding ten years. If a ground (d) appeal against such a notice would succeed, an application for a lawful development certificate should likewise succeed.

The claimant council refused a lawful development certificate for a bungalow occupied as a permanent residence in breach of a condition restricting occupation to 15 March to 15 November each year. It accepted that the occupation had continued for more than ten years, but argued that each winter’s occupation was a separate breach which ended when seasonal occupation became permitted. An appointed person rejected that argument and allowed the appeal. The council applied under section 288 of the Town and Country Planning Act 1990 to quash that decision. The central issue was whether repeated seasonal breaches could become immune from enforcement under section 171B(3).

1. The application was dismissed. The appointed person had correctly concluded that immunity could be acquired in respect of the seasonal breach and that the occupier was entitled to a lawful development certificate.
2. Section 171B(3) applies to all breaches of planning control not falling within subsections (1) and (2). Parliament intended a ten-year limitation period to balance the local planning authority’s opportunity to identify significant problems against the landowner’s need for certainty.
3. The court must focus on the particular condition and the particular matter constituting the breach. The three-stage approach identified in Nicholson v Secretary of State for the Environment and Malvern District Council is useful: identify the failure, determine when it began as a matter of fact and degree, and ask whether ten years have elapsed. It must not be applied mechanically where the condition can only be breached seasonally.
4. For a seasonal condition, occupation during each prohibited season may constitute one continuing breach for limitation purposes. It would be artificial to treat every season as a wholly new breach, thereby making immunity impossible regardless of the length of non-compliance. The relevant question is whether an enforcement notice could have been issued, alleging the breach and requiring its remedy, in each of the previous ten years.
5. The outcome of an application for a lawful development certificate should correspond with the outcome of a ground (d) appeal under section 174(1). The enforcement notice would have alleged occupation during the prohibited winter period and required cessation during that period.
6. The observations concerning the power and expediency of issuing an enforcement notice after the seasonal breach had ceased were obiter. In an appropriate case, section 172(1) could permit enforcement action where recurrence was likely, although expediency would depend on the circumstances.
7. The claimant was ordered to pay the first defendant’s costs, summarily assessed at £5,265. Permission to appeal was refused because there was no reasonable prospect of success.

The appointed person allowed the second defendant’s planning appeal in a decision letter dated 18 December 2003. The council then brought this statutory application under section 288 of the Town and Country Planning Act 1990. The High Court dismissed the application.