Tony Leigh v Secretary of State for Housing, Communities and Local Government & Anor

For a lawful development certificate under section 191 of the Town & Country Planning Act 1990, the applicant must satisfy both limbs of section 191(2). Lawfulness is assessed at the date of the application under section 191(4). An extant enforcement notice which directly covers the use or operations prevents satisfaction of section 191(2)(b), even where the evidence establishes that the relevant period for immunity from enforcement action has expired. A certificate application cannot provide a second opportunity to contest requirements in an enforcement notice which was not appealed. The appropriate opportunity to raise the relevant factual case was an appeal against the enforcement notice.

The claimant challenged a Planning Inspector’s dismissal of his appeal against Chichester District Council’s refusal to grant a lawful development certificate. The certificate was sought for hardstanding and earth bunds said to have existed for more than four years before an enforcement notice was served.

The Inspector accepted that the works had been substantially completed before the relevant date, but dismissed the appeal because the enforcement notice had taken effect and remained in force when the certificate application was made. The claimant advanced four grounds, concerning enforcement immunity, substantial completion, the date at which lawfulness fell to be assessed, and the meaning of an enforcement notice being then in force. The issue was whether the extant notice prevented the statutory conditions for certification from being met.

1. Permission refused and claim dismissed. None of the four grounds was arguable. The Inspector’s dismissal of the appeal was inevitable.

2. Section 191(2) of the Town & Country Planning Act 1990 contains two cumulative conditions. Under section 191(2)(a), no enforcement action may be capable of being taken. Under section 191(2)(b), the use or operations must not contravene any requirement of an enforcement notice then in force. Section 191(4) requires the authority to assess lawfulness at the time of the application.

3. The court derived material assistance from R (Ocado Retail Limited) v Islington London Borough Council [2021] PTSR 1833, particularly its conclusion that the expiry of the enforcement period does not confer a lawful right where an extant enforcement notice is being contravened. The position would differ if the notice had ceased to be in force when the relevant enforcement period expired.

4. Swale Borough Council v First Secretary of State [2006] JPL 886 did not assist the claimant. That case expressly proceeded on the basis that section 191(2)(b) had no application because there was no extant enforcement notice. It was therefore neutral on the present argument.

5. At the application date, the enforcement notice directly covered the hardstanding and earth bunds, had taken effect, and remained in force. Section 191(2)(b) was therefore unsatisfied, irrespective of the Inspector’s favourable finding on section 191(2)(a). That conclusion avoided the artificial result that a certificate could declare works lawful while the enforcement notice continued to require their removal.

6. The claimant could have advanced the same evidential case in a ground (d) appeal against the enforcement notice. His failure to appeal did not make the statutory consequence unfair or unlawful, and a certificate application could not operate as a second opportunity to bypass the notice.

7. The court granted permission for the judgment to be referred to in future proceedings, notwithstanding that it was given on an application for permission rather than at a final hearing.