Leicestershire County Council v Louis Miles

The ten-year immunity under section 171B(3) of the Town and Country Planning Act 1990 requires proof of a continuous breach throughout the relevant period. Intermittent reports, vague historical assertions and evidence of vehicles being moved and later returned will not ordinarily establish continuity. The burden lies on the person claiming immunity. A party is not generally required to identify a statutory defence which reasonable foresight would not have revealed as relevant, particularly where the opposing litigant knew of the provision and raised it only in closing submissions. An appeal court may consider a trial judge’s clarification of findings given in refusing permission to appeal.

The respondents obtained an injunction in the Leicester County Court under section 187B of the Town and Country Planning Act 1990, restraining the appellant from keeping vehicles in the Blaby district without planning permission or written consent, subject to specified exceptions. The trial judge found that vehicles were being stored, rather than merely parked, on highway verges and that an injunction was proportionate.

On appeal, the appellant argued that the alleged breach had continued for more than ten years and was therefore immune from enforcement under section 171B(3). Permission was granted on that ground, including an issue as to whether the respondents should have drawn the rule to the trial judge’s attention.

1. Appeal dismissed. The injunction granted by the Leicester County Court was upheld.
2. Section 171B(3) of the Town and Country Planning Act 1990 applies only where the breach relied upon was continuous for the full ten-year period. The relevant period had to begin on or before 19 November 2011 because the claim form was issued on that date.
3. The appellant bore the burden of proving the facts necessary to establish immunity. The evidence did not demonstrate, on the balance of probabilities, continuous storage of vehicles on the verges for ten years. The accepted evidence indicated that the relevant change of use began around 2015 and increased in 2021.
4. The respondents and their counsel were required to take reasonable steps to ensure that the court had relevant decisions and legislative provisions before it. That obligation did not require them to identify every possible defence or explain all reasons for and against a defence where its relevance could not reasonably have been recognised. In any event, the trial judge and appellant knew of the ten-year rule because the appellant referred to it in closing submissions.
5. The trial judge was entitled to clarify, in written reasons refusing permission to appeal, that the change of use began around 2015. The evidence relied upon by the appellant was vague, selective and indicative at most of intermittent breaches. The appellant had chosen not to plead the ten-year rule, adduce supporting evidence or give evidence himself, and had to accept the consequences of that tactical decision.

• High Court (King’s Bench Division): Appeal dismissed. The injunction made by HHJ Hedley on 27 September 2022 was upheld.
• Leicester County Court: Injunction granted under section 187B of the Town and Country Planning Act 1990, subject to exceptions for up to six personal vehicles.