Law Report: Enforcement notice relating to occupation was upheld: Newbury District Council v Secretary of State for the Environment and others. Court of Appeal (Lord Justice Russell, Lord Justice Hirst and Lord Justice Rose), 13 July 1993

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A condition to planning permission relating solely to occupancy does not relate to the carrying out of building operations within section 172 of the Town and Country Planning Act 1990. Accordingly occupation in breach of such a condition does not enjoy immunity outside the four-year period in section 172(4), but remains liable to enforcement notice procedure after four years.

The Court of Appeal (Lord Justice Rose dissenting) allowed the council's appeal against the decision of Mr Gerald Moriarty QC, sitting as a deputy judge, upholding an inspector's decision that an enforcement notice served by the council on Sidney and Susan Marsh was out of time.

In 1984 the council granted planning permission for the construction of a farmhouse to replace a temporary mobile home. One of the conditions of the permission was that the occupation of the dwelling should be limited to a person employed, or last employed, locally in agriculture or in forestry or a dependant of such a person. Mr and Mrs Marsh occupied the house in 1986 and neither fulfilled the requirements of the condition.

In 1991 the council served on Mr and Mrs Marsh an enforcement notice alleging a breach of planning control. On their appeal, an inspector found that a period in excess of four years had elapsed from the date of the breach of condition before the enforcement notice was served and therefore, having regard to section 172(4), the enforcement notice was out of time.

The council appealed on the ground that a condition relating to occupation of the premises did not relate to 'the carrying out of (building) operations', within section 172(4) and that only conditions which related to the structure of the building and had something to do with its physical and visible characteristics were protected by the time limit imposed by section 172(4).

John Steel QC (Sharpe Pritchard for Council Solicitor) for the council; Tobias Davey (Treasury Solicitor) for the Secretary of State; Christopher Whybrow QC (Orchehill Chambers, Gerrards Cross) for Mr and Mrs Marsh.

LORD JUSTICE RUSSELL said that it was impossible to accept the proposition that all conditions properly attached to a planning approval for building operations enjoyed the protection of the four-year limitation period. If the intention was to create protection for all conditions which might be of an incorporeal nature, then the phrase 'which relates to the grant of planning permission' as opposed to 'which relates to the carrying out of such operations' would be appropriate.

Harvey v Secretary of State for Wales 88 LGR 253, where the occupier's appeal against an enforcement notice was allowed, was distinguishable on its facts since the condition in Harvey did not relate exclusively to occupancy but was 'demolition based'. Since its purpose was to require demolition it directly related to a building operation. The requirement as to occupancy was no more than a corollary to the requirement to demolish.

The failure of Mr and Mrs Marsh to comply with the condition relating to their occupation did not attract the protection of section 172 (4)(b). The appeal would be allowed.

LORD JUSTICE HIRST agreed.

LORD JUSTICE ROSE, dissenting, said that the court was bound by Harvey and the appeal must be dismissed.

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