Lawson Builders Ltd & Ors v Secretary of State for Communities & Local Government & Anor

A planning permission granted on an application formally made under section 73 of the Town and Country Planning Act 1990 may, in substance, be treated as retrospective permission under section 73A where the development has already been carried out and the permission’s conditions address that existing development. Such permission takes effect in relation to the development already undertaken, and the developer is bound by its conditions. An unlawfully erected dwelling used as a dwelling from the outset may become immune from enforcement as a structure after four years, while the unlawful use remains subject to the ten-year period. The statutory defence to breach of condition proceedings requires proof, objectively, that all reasonable measures were taken to secure compliance.

The claimants challenged an Inspector’s decision concerning lawful development certificates for two dwellings at Bracken Hill. The original 2004 planning permission had not been lawfully implemented because precedent conditions had not been complied with. A later permission, granted after the dwellings had substantially been built, removed or replaced conditions and imposed new requirements.

The claimants argued that the later permission was prospective, had not been implemented, and could not support enforcement. The first claimant also appealed by case stated against conviction under section 187A(9) of the Town and Country Planning Act 1990 for failing to comply with a breach of condition notice. The central issues were whether the later permission operated retrospectively and whether the statutory defence had been established.

1. Section 288 application dismissed. The Inspector correctly recorded that the 2004 permission had not been lawfully implemented. His reference to implementation of the later permission concerned the conclusion that the application was, in substance, an application for retrospective permission under section 73A.

2. The statutory label attached to the 2009 application did not determine its substance. The later permission’s conditions required works to be undertaken within short periods and recognised that one dwelling was already occupied. Those features supported the conclusion that the permission regularised development already carried out. Section 70(1) supplied power to impose conditions on such permission.

3. The Inspector was entitled to treat the later permission as retrospective without notifying the claimants that he proposed to adopt that analysis. The decision letter, read as a whole, identified the retrospective character of the permission as the primary reason for finding implementation. Subsequent conduct and the practical difficulty of enforcement were only supporting matters.

4. The alternative reasoning concerning enforcement periods was also lawful. Under section 171B, building operations may become immune after four years, but where a dwelling is erected unlawfully and used as a dwelling from the outset, the use may remain enforceable for ten years. The principle in Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] UKSC 15 applied despite factual differences.

5. Case stated appeal dismissed. A developer may elect not to implement a prospective permission. However, where retrospective permission is granted, the authorised development has already been carried out. A developer that does not challenge an imposed condition, or fails in that challenge, must comply with it. The first claimant had also sought approval of schemes under the conditions, which objectively supported that conclusion.

6. The defence under section 187A(11)(a) requires proof on the balance of probabilities that all reasonable measures were taken to secure compliance. The test is objective and concerns all relevant circumstances. The District Judge was entitled to reject the defence where the person withholding consent to works was a director of the appellant and there was little evidence of genuine attempts to secure consent.

Both the section 288 application and the appeal by way of case stated were dismissed.

The judgment itself records the Inspector’s decision and the District Judge’s conviction. This court dismissed both the section 288 application and the appeal by way of case stated.