Ellis v Secretary of State for Communities & Local Government & Anor

For a certificate of lawfulness concerning breach of a planning condition, the relevant breach must be subsisting when the application is made. A previous period of immunity does not attach generally to the type of non-compliance. If compliance intervenes, later non-compliance is a fresh breach and time runs again. Material changes of use may be treated differently from breaches of condition. On an application to remove an agricultural occupancy condition, a saved local policy requiring marketing may be relevant even though national guidance does not prescribe that exercise. The applicant bears the burden of establishing that there is no continuing local need. An inspector’s reasons are adequate if they address the principal controversial issues and explain why the evidence does not establish the necessary conclusion.

The claimant challenged, under section 288 of the Town and Country Planning Act 1990, two decisions of an inspector dated 7 April 2008 concerning Chenies House Cottage. The inspector dismissed an appeal against refusal of a certificate of lawfulness of existing use or development and an appeal against refusal of planning permission to remove an agricultural occupancy condition.

The cottage had been occupied in breach of the condition from 1961, but there were intervening periods when it was vacant or not occupied in breach. The certificate application was made while the cottage was unoccupied. The central issues were whether an earlier immune breach remained capable of supporting a certificate and whether the inspector had unlawfully required a marketing exercise or failed to give adequate reasons when refusing permission.

1. The claim was refused. The inspector’s decisions disclosed no error of law.
2. Section 191 addresses the lawfulness of the specified matter at the date of the application. Following Nicholson v Secretary of State for the Environment & Maldon District Council (1998) 76 P&CR 191, the decision-maker must identify the particular failure to comply, determine when it began, and ask whether the applicable enforcement period has expired. For a breach of condition, the relevant non-compliance must still exist when the certificate is sought.
3. A breach of condition ends when the non-compliance ceases. Later non-compliance is a fresh breach, and periods cannot be aggregated. The rule applies to immunity arising under predecessor enactments as well as under section 171B(3) of the 1990 Act. The distinction between breaches of condition and material changes of use remained important. Panton & Farmer v Secretary of State for the Environment, Transport and the Regions (1998) 78 P&CR 186 was consistent with Nicholson.
4. On the planning appeal, the inspector had considered both policy GB20 and PPS 7. The saved policy’s marketing exercise was relevant, but it was not treated as an inflexible prerequisite. The evidence supplied was insufficient to establish that there was no continuing or longer-term need for agricultural dwellings. The burden remained on the applicant.
5. The inspector’s reasons were intelligible, adequate and addressed the principal controversial issues in accordance with South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953.