Rastrum Ltd & Anor v Secretary of State for Communities & Local Government & Anor

Where development is commenced in breach of a planning condition, the commencement may nevertheless become lawful when the period for enforcement expires. The development is then treated as lawfully commenced, so the planning permission remains extant. A certificate of lawfulness for proposed development should be granted where the statutory conditions are satisfied.

Legitimate expectation cannot confer a substantive benefit beyond a public authority’s statutory powers. Planning controls cannot ordinarily be bypassed by private agreement or administrative inaction. Exceptionally, however, a public authority may be required to consider whether departing from a clear position stated in a binding planning agreement would be unfair or an abuse of power.

Rastrum Limited and Mr Benge challenged, under section 288 of the Town and Country Planning Act 1990, an Inspector’s decision upholding Rother District Council’s refusal of a certificate of lawfulness for proposed development at The Saltings, Rye Harbour.

The development relied on an outline permission granted in 1981 and reserved-matters approval given in 1985. Access works were carried out before the permission’s relevant expiry date, but the Inspector concluded that they had been commenced in breach of condition. The central issues were whether the works had subsequently become immune from enforcement and therefore lawful, and whether the authorities’ conduct, including a 1992 section 106 agreement, created a legitimate expectation or made enforcement an abuse of power.

1. The applications succeeded. The Inspector had erred in law by refusing to treat the commencement works as lawful once enforcement action against them had become time-barred. The decision was quashed to that extent.

2. Sections 191 and 192 of the Town and Country Planning Act 1990 concern certificates for existing and proposed uses or operations. If operations commenced in breach of condition can no longer lawfully be enforced against, they are to be regarded as lawful for the purpose of determining whether development was commenced. The 1981 permission and 1984 reserved-matters approval were therefore extant, and the Council should have granted the certificate.

3. The court adopted the summary in R (Hammerton) v London Underground Ltd [2002] EWHC 2307 (Admin). The principle that breach of condition ordinarily prevents a permission being kept alive is subject to recognised exceptions. The issue is not an equitable assessment of what is fair, but the legal effect of the particular facts, including whether enforcement remains possible.

4. Legitimate expectation is founded on fairness in the exercise of public functions. It cannot require a public authority to confer a substantive benefit where it lacks power to do so. Statutory planning procedures cannot ordinarily be bypassed by private agreement or administrative inaction. Those principles, reflected in Coghurst Wood Leisure Park Ltd v Secretary of State for Transport, Local Government and the Regions [2003] JPL 206 and Henry Boot Homes Ltd v Bassetlaw DC [2003] 1 P&CR 372, did not prevent the court from recognising that exceptional facts might require further inquiry.

5. The 1992 section 106 agreement clearly proceeded on the basis that the earlier permission and approval had been implemented. It was arguable that departing from that public position merely because the authority had changed its view of the law could be unfair or an abuse of power. The evidence was insufficient to determine that issue. If the primary conclusion was wrong, the legitimate-expectation and abuse-of-power issues were to be remitted for proper consideration, including reliance, prejudice to third parties and the reasons for the Council’s change of position.

The judgment does not state a separate appellate history. It records a challenge under section 288 of the Town and Country Planning Act 1990 to an Inspector’s decision on a planning appeal.