Mid-Devon District Council, R (on the application of) v First Secretary of State & Ors

Section 294(1) of the Town and Country Planning Act 1990 provides immunity from enforcement only where development carried out by or on behalf of the Crown was undertaken on land that was Crown land when the development occurred. Development carried out on behalf of the Crown on wholly private land does not fall within that immunity.

The statutory language, the structure of Part XIII and the related provision concerning private interests in Crown land all confirm that construction. Authorities concerning the Crown’s own immunity from planning control do not extend the protection given by section 294(1) to private landowners.

During the foot and mouth disease outbreak, the Ministry of Agriculture, Fisheries and Food arranged for substantial works to be carried out at Westlake Farm, which was owned by Mr and Mrs Stevens. The Ministry had permission to enter the land but held no legal or equitable interest in it.

Mid-Devon District Council served enforcement notices under section 172(1) of the Town and Country Planning Act 1990. An Inspector allowed the owners’ appeal, holding that section 294(1) protected development carried out on behalf of the Crown even though the land was not Crown land. The Council appealed under section 289. The central issue was whether the statutory immunity applied in those circumstances.

The appeal was allowed. The Inspector’s decision dated 29 September 2003 was quashed and remitted for rehearing and redetermination.

1. Section 294(1) applies only where three conditions are met: the development was carried out by or on behalf of the Crown; it was carried out after 1 July 1948; and it was carried out on land which was Crown land at that time. The words concerning Crown land cannot be treated as surplus. Removing them would require a fundamental redrafting of the provision.

2. The conclusion is reinforced by the placement of section 294 in Part XIII of the Town and Country Planning Act 1990, headed “Application of Act to Crown Land”, and by the heading of the relevant part concerning Crown land.

3. The court relied on the principle stated in British Broadcasting Corporation v Johns [1965] Ch 32, and accepted in Lord Advocate v Dumbarton District Council [1990] 2 AC 580, that the Crown is not bound by statutory obligations or restraints unless the statute expressly or by necessary implication removes its immunity.

4. The relevant reasoning in Dumbarton concerned the Crown’s own immunity from planning control. It did not establish an equivalent immunity for private owners of land on which the Crown had carried out development. The related Scottish provision, section 253(3) of the Town and Country Planning (Scotland) Act 1972, was directed to development on land which was Crown land when the development occurred but later ceased to be Crown land.

5. The Circular did not support the Inspector’s conclusion. Read in full, it addressed land in which the Crown had an interest at the time of the original use. Section 296(1)(c) also supported the Council’s construction: private interests in land which is Crown land remain subject to the enforcement regime. It would be anomalous if wholly private land enjoyed greater protection merely because the Crown had carried out development there.

The matter was remitted to the Inspector to determine the remaining grounds of appeal. The First Secretary of State was ordered, by consent, to pay the Council’s reasonable costs of the appeal.

• Inspector: By decision dated 29 September 2003, allowed the owners’ enforcement notice appeal and quashed the notices.
• High Court (Administrative Court): The Council’s appeal under section 289 of the Town and Country Planning Act 1990 was allowed. The Inspector’s decision was remitted for rehearing and redetermination.