Jeffery & Anor v First Secretary of State & Anor

A discontinuance order may be confirmed under Town and Country Planning Act 1990 where the decision-maker applies the statutory question of whether discontinuance is expedient in the interests of proper planning. A lawful use authorised by planning permission is not thereby immune from discontinuance. Serious planning harm may justify the order.

A court should ordinarily be slow on a statutory challenge to entertain a new allegation that the local planning authority acted unlawfully before the inquiry. The challenger must show clear and convincing evidence of ultra vires conduct, and will normally need a good reason for not raising the point at the inquiry.

The appellants owned land near Dawlish Warren. A 1999 planning permission referred to touring caravans and tents. The parties proceeded on the assumption that it granted a permanent permission for both uses.

Teignbridge District Council made a discontinuance order requiring the authorised use for caravans and tents to cease. Following a public inquiry, the First Secretary of State confirmed that order. The inspector also recommended, and the Secretary of State accepted, that an enforcement notice be quashed because the use had planning permission and a condition on that permission was invalid.

Sullivan J dismissed the appellants’ challenge under Town and Country Planning Act 1990. On appeal, the issues were whether the statutory expediency test had been applied and whether an unraised challenge to the Council’s inclusion of caravans in the order could succeed.

1. Appeal dismissed. Keene LJ held, with whom Jacob and Hughes LJJ agreed, that the inspector and the Secretary of State applied the test in section 102(1) of the Town and Country Planning Act 1990. The inspector had repeatedly recorded that test, had found the use lawful, and was entitled to treat the serious planning harm caused by the caravan and tent use as decisive on expediency.
2. The Council’s resolution authorised a revocation order or discontinuance notice in respect of the 1999 permission. That permission covered both caravans and tents. The resolution therefore authorised a discontinuance order of the same breadth; earlier discussion of tents could not sever the composite permitted use.
3. There was no absolute legal bar to a new validity ground being raised in a section 288 challenge. However, the court should be slow to entertain a challenge to a confirmed discontinuance order based on an alleged defect in the Council’s earlier decision-making which was not raised at the public inquiry. The inquiry is the proper forum for the landowner to advance the point and evidence. If the order is not facially defective, the challenger normally needs convincing evidence of ultra vires conduct and a good reason for the earlier omission.
4. A discontinuance order has no effect unless confirmed by the Secretary of State, who may modify it. The section 288 challenge concerns the order as confirmed, rather than merely its original form when made by the local authority. On the available material, the appellants had not discharged the burden of showing that the Council failed to consider the caravan use or that the order was ultra vires.
5. Jacob LJ and Hughes LJ expressly reserved the separate question whether the 1999 permission truly had the assumed permanent effect, and whether I’m Your Man v SoS for the Environment required reconsideration. No argument had been heard on either issue.

• Court of Appeal (Civil Division) — dismissed the appeal and upheld the confirmation of the discontinuance order: [2007] EWCA Civ 584 .
• Administrative Court — Sullivan J dismissed the appellants’ statutory challenge under section 288 of the Town and Country Planning Act 1990 on 24 October 2006.