Basingstoke & Deane Borough Council v Secretary of State for Communities & Local Government

A planning condition restricting occupation is valid only if imposed for a proper planning purpose. A condition imposed solely to secure exemption from development charge is invalid, even if a similar condition would serve a planning purpose under later policy.

For a lawful development certificate based on the expiry of enforcement time, the question is whether a breach continued throughout the relevant period. The test is whether enforcement action could have been taken successfully at all material times. Continuous physical occupation is unnecessary. Activities undertaken to further an existing breach, including refurbishment and marketing, may form part of a continuing breach, although intention alone is insufficient.

The claimant local authority challenged an inspector’s grant of a lawful development certificate under section 288 of the Town and Country Planning Act 1990. The certificate permitted use of a former agricultural workers’ cottage as an unrestricted dwellinghouse.

The original 1950 permission required occupation by members of the agricultural population. The condition had been imposed to secure relief from development charge under Circular 62, rather than to implement a local planning policy. The parties agreed the facts. The central issues were whether the condition was a valid planning condition and, if so, whether there had been a continuous breach for ten years despite a period of refurbishment and non-occupation.

1. Validity of the condition. The claim was dismissed. A condition restricting the persons who may occupy a dwelling can be a proper planning condition, as established in Fawcett Properties v Buckingham County Council [1960] 3 All ER 503 and the Court of Appeal decision in Fawcett Properties v Buckingham County Council [1959] 1 Ch 543. Its validity depends on the purpose for which it was imposed.
2. The planning authority’s reasons and the historical planning context were relevant. The condition was imposed at the applicant’s request solely to avoid development charge. It was not directed to securing a particular class of occupant for the locality from a town-planning standpoint. It was therefore invalid when imposed and had never been enforceable. The later abolition of development charge did not need to be finally determined; if the condition had originally been valid, its underlying circumstances would not alone have invalidated it.
3. Continuing breach. The relevant question under sections 191 and 192 of the Town and Country Planning Act 1990 was whether enforcement action could have been taken successfully throughout the ten-year period. The issue was not continuous occupation. The authorities, including North Devon District Council v Secretary of State for the Environment [1998] 2 PLR 46, Secretary of State for Environment v Thurrock Borough Council [2002] JPL 1278 and Swale Borough Council v First Secretary of State [2005] EWCA Civ 1568, show that the question is fact-sensitive but must be approached correctly in law.
4. Once a clear breach by non-agricultural occupation had occurred, refurbishment, marketing and related activities undertaken to continue that breach could mean that the breach continued during a period without physical occupation. Intention alone would not suffice, and work following the end of a lawful agricultural tenancy would not itself constitute a breach. The inspector’s reasoning was incorrect, but his conclusion that the breach continued was one he was entitled, and on the facts bound, to reach. The claim was dismissed.

The claimant was ordered to pay the Secretary of State’s costs, subject to detailed assessment. No costs were awarded to the interested party.