North Dorset District Council v Trim (Rev 2)

A challenge to the validity of a breach of condition notice concerns a purely public law act. It must ordinarily be brought promptly by judicial review. A private law claim for a declaration cannot be used to avoid judicial review safeguards and time limits.

The need to determine disputed facts does not displace procedural exclusivity. Judicial review procedure permits appropriate directions for oral evidence and cross-examination. A recipient who neither challenges the notice promptly nor applies to discharge the planning condition must accept the resulting uncertainty. Threats of litigation and attempts to resolve matters by correspondence do not satisfy the requirement to commence proceedings promptly.

The owner occupied a dwelling subject to a planning condition linking occupation to equestrian facilities. He asserted that his non-compliance had continued long enough to become immune from enforcement. After refusing his application for a certificate of lawful existing use, the district council served a breach of condition notice.

A planning inspector later dismissed the owner's appeal against refusal of the certificate. The owner then sought declarations that the notice had been served after expiry of the ten-year enforcement period and that the breach was consequently lawful.

HH Judge Denyer QC refused the council's application to strike out the declaratory proceedings as an abuse of process. The central issue on the council's appeal was whether the validity of this public law notice could be challenged through private law proceedings instead of judicial review.

1. Appeal allowed. The declaratory proceedings were an abuse of process and were struck out. The service of a breach of condition notice was a purely public law act. Its validity had to be challenged promptly by judicial review under the exclusivity principle established in O'Reilly v Mackman [1983] 2 AC 237.

2. A breach of condition notice has important public consequences. It creates the foundation for criminal liability and prevents the contravening use from becoming lawful through the further passage of time. The public interest therefore requires any dispute about its validity to be resolved without delay. Interference with private property rights does not deprive public action of its public character. Flexibility is principally required where public law overlaps with genuine private law rights, such as rights arising in contract or tort.

3. The existence of factual disputes does not create an exception to procedural exclusivity. Judicial review procedure enables the court to direct attendance, oral evidence and cross-examination where necessary. Any suggestion in Dilieto v Ealing LBC [2000] QB 381 that judicial review cannot deal effectively with factual disputes was not accepted.

4. The recognised exception permitting public law invalidity to be raised as a defence to proceedings brought by the authority did not assist the owner. The authority was under no duty to prosecute or otherwise provide a platform for challenging the notice. It could rely upon the notice's planning consequences and leave the owner to seek a planning solution.

5. The Town and Country Planning Act 1990 supplied the relevant routes. Before enforcement, an owner could seek a certificate under section 191. After service of a breach of condition notice, the owner could seek prompt judicial review or apply under section 73 to discharge the condition. An owner who pursued neither route had to accept the resulting uncertainty.

6. No extension of time for judicial review was justified. Even assuming that awaiting the planning inspector's decision was reasonable, there was no convincing explanation for the ensuing delay of almost a year. Threatening proceedings and corresponding about alternatives did not satisfy the requirement to commence proceedings promptly.

1. Court of Appeal (Civil Division): Allowed the council's appeal and directed that the declaratory proceedings be struck out as an abuse of process: [2010] EWCA Civ 1446.

2. Bristol District Registry: HH Judge Denyer QC refused the council's application to strike out the statement of case and granted permission to appeal. No neutral citation is stated.