Avon Estates Ltd v Welsh Ministers & Anor

A condition attached to a planning permission granted for a limited period ordinarily operates only during the period for which the development is authorised. Once the time-limit condition has become immune from enforcement, a separate restrictive condition will not continue indefinitely merely because it has no express end date. The permission and its conditions must be construed as a whole, avoiding internal inconsistency. Enduring conditions on temporary permissions may be possible in principle, but are very unlikely to be lawful unless they relate fairly and reasonably to the temporary development. The time-limit and restoration condition is different because section 72(1)(b) of the Town and Country Planning Act 1990 expressly provides for it.

Four planning permissions authorised holiday bungalows or semi-detached chalets for specified periods and imposed seasonal occupancy conditions. The buildings remained after the expiry dates. The parties agreed that the buildings had become immune from enforcement action, while seasonal use had remained within the stated restrictions.

The owner applied under sections 191 and 192 of the Town and Country Planning Act 1990 for certificates concerning existing and proposed residential use. An inspector granted the existing-use certificate subject to the seasonal conditions and dismissed the proposed-use appeal because it omitted them. Beatson J dismissed the owner’s challenge under section 288, holding that the seasonal conditions remained effective. The central issue was whether those conditions survived beyond the specified period of the temporary permissions.

1. Appeal allowed and remitted. The inspector’s certificate appeals were remitted for redetermination in the light of the Court of Appeal’s decision.
2. A planning permission granted for a limited period under section 72(1)(b) and section 72(2) is created by imposing a condition requiring removal, discontinuance of use and, where appropriate, reinstatement at the end of a specified period. The time-limit and restoration condition is enforceable in its own right, subject to the statutory enforcement time limits.
3. The permission and its conditions must be construed as a whole and, where possible, consistently. A condition without express temporal words may nevertheless be limited to the life of the authorised development. The seasonal occupancy conditions were objectively intended to be coterminous with the authorised development. Reading them as continuing after the specified expiry date would create an internal inconsistency by treating the development as authorised for a longer period.
4. The statutory scheme makes it very unlikely that a permanent restrictive condition can lawfully attach to a temporary permission after the development has ceased to be authorised and has become immune from enforcement. Any such condition would still have to relate fairly and reasonably to the permitted development. The special statutory provision for mineral-extraction aftercare conditions supports that cautious conclusion.
5. The court explained the limited assistance available from Adur District Council v Secretary of State for the Environment. That case was principally concerned with construction of its particular permission and expressly left open the broader question. Its reasoning nevertheless illustrated the objection to a condition inconsistent with a temporary authorisation. The court also explained the established principle that a condition cannot be enforced where the landowner need not rely on the permission to authorise the development.
6. Lord Justice Rix and Lady Justice Smith agreed with Sir David Keene’s judgment. The appeal was therefore allowed unanimously.

• Court of Appeal (Civil Division) [2011] EWCA Civ 553: allowed the appeal from Beatson J and remitted the certificate appeals to the inspector for redetermination.
• Administrative Court: Beatson J dismissed the challenge under section 288 of the Town and Country Planning Act 1990 and held that the seasonal occupancy conditions remained effective.
• Inspector appointed by the Welsh Ministers: allowed the existing-use certificate appeal subject to the seasonal conditions, but dismissed the proposed-use appeal because the proposed use did not include the seasonal restriction.