Neutral Citation Number: [2009] EWHC 634 (Admin)
Case No: CO/4749/2008
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date:  31 March 2009

Before :

RABINDER SINGH QC
Sitting as a Deputy High Court Judge
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Between :

	                                Peter Ellis	Claimant	
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	  Secretary of State for Communities and Local  
                              Government
- and –
                    Chiltern District Council	1st Defendant

2nd Defendant	

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Ms Saira Kabir Sheikh (instructed by Bristows) for the Claimant
Mr Jonathan Moffett (instructed by The Treasury Solicitor) for the 1st Defendant

Hearing dates: 30 January and 23 February 2009
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Judgment
Mr Rabinder Singh QC : 
INTRODUCTION

1.	By this application under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) the Claimant seeks to challenge two decisions of an inspector appointed by the First Defendant (“the Inspector”) dated 7 April 2008 (“the decisions”). Both decisions relate to Chenies House Cottage, Chenies, Buckinghamshire (“the cottage”). By those decisions, the Inspector, first, dismissed an appeal under section 195 of the 1990 Act brought by Dr Richard Hine against the refusal of Chiltern District Council (“the Council”) to grant a certificate of lawfulness of existing use or development (“CLEUD”); and, secondly, dismissed Dr Hine’s appeal under section 78 of the 1990 Act against the Council’s refusal to grant planning permission. The Inspector gave her decisions in a single decision letter. It would appear that at the material time Dr Hine was the owner of the cottage and the Claimant is his successor in title.  The Council is the Second Defendant in these proceedings but played no part in the hearing before me.

FACTUAL BACKGROUND

2.	The cottage is a dwelling located within a site which lies in the Green Belt. Planning permission for the cottage was granted in 1961, subject to a condition in the following terms (“the occupancy condition”):

“the occupation of the [cottage] shall be limited to persons employed or last employed locally in agriculture, as defined in section 119(1) of the Town and Country Planning Act 1947, or in forestry, and the dependants of such persons.”

3.	Between 1961 and June 2000 the cottage was occupied in breach of the occupancy condition. From June 2000 to October 2001 the cottage was vacant while it was being renovated.  From October 2001 to July 2003 the cottage was again occupied in breach of the occupancy condition. From July 2003 to October 2003 the cottage was unoccupied during a gap between tenants.  From October 2003 to November 2006 the cottage was again occupied in breach of the occupancy condition.  From November 2006 to March 2007 the cottage was unoccupied.

4.	On 13 March 2007 Dr Hine applied to the Council, pursuant to section 191 of the 1990 Act, for a CLEUD in relation to the occupation of the cottage by a person who does not comply, and who has not complied, with the occupancy condition. The application was made pursuant to section 191(1)(c) of the 1990 Act. The ground on which the application was made was stated to be that “the use, operation or activity in breach of condition began more than ten years before the date of this application”.  Dr Hine’s application was rejected by the Council on 9 May 2007.  It is important to note that, at the time the application was made, the cottage was unoccupied.

5.	On 16 July 2007, Dr Hine applied for planning permission for the development of land without compliance with a condition subject to which planning permission had been granted, the relevant condition being the occupancy condition. In essence, Dr Hine sought the removal of the occupancy condition. The Council rejected this application on 9 October 2007.

6.	Dr Hine appealed to the Secretary of State against the Council’s refusal of both applications. The gist of Dr Hine’s appeal against the rejection of the CLEUD appeal was that, by July 2000, there had been at least ten years of occupancy of the cottage in breach of the occupancy condition and therefore the breach had gained immunity against enforcement proceedings. The Council contended that, as the cottage was unoccupied at the date of the application for the CLEUD, there was at that date no subsisting breach of the occupancy condition and therefore the application had to fail.

7.	The gist of Dr Hine’s appeal against the refusal of his application for planning permission was that there was no longer a need for the occupancy condition because there was very poor demand for properties with such a condition.

8.	The Secretary of State appointed the Inspector to determine the appeals.  The Inspector held a public inquiry on 19 and 28 March 2008 and made a site visit on the former date. She dismissed both appeals by way of her decisions dated 7 April 2008, which, as I have noted, were set out in one decision letter.

9.	The Inspector’s reasoning in relation to the CLEUD appeal was based primarily on the decision of this Court in Nicholson v Secretary of State for the Environment & Maldon District Council (1998) 76 P&CR 191, to which I will make more detailed reference later.   At paragraph 7 of the Decision Letter the Inspector said: 

“Nicholson … distinguishes between conditions such as an agricultural occupancy condition that contains a continuing requirement of commitment and those which contain a ‘once and for all requirement’.  The decision establishes that there can be a series of separate breaches against the former, and each breach has to continue uninterrupted for ten years before immunity is achieved in respect of that breach.  But if the breach ceases, then a further breach will not be lawful until another ten years of continuous non-compliance has taken place.  The lawfulness of a first breach will not provide a defence against a subsequent breach.” 

10.	Following on from this, she concluded that a CLEUD could only be granted where a particular breach had subsisted for at least ten years as at the date of the application for the CLEUD (para. 8 of the Decision Letter) and that, as it was accepted by Dr Hine that the cottage had not been occupied in breach of the condition for a continuous period of ten years up until the date of the application, such a breach could not be established in respect of the occupancy condition (para. 9 of the Decision Letter). Further, she rejected the contention that Dr Hine could rely upon the occupation of the cottage in breach of the occupancy condition for a period of at least ten years prior to 2000, because any immunity that attached to that breach was lost when it ceased in 2000 (para. 11 of the Decision Letter).

11.	Turning to the planning permission appeal, the Inspector dealt with this at paras. 16-29 of the Decision Letter.  Her main reason for dismissing that appeal was that Dr Hine had failed to demonstrate that there was no continuing need for the occupancy condition (para. 29 of the Decision Letter). 
 
12.	At para. 20 the Inspector noted that the relevant development plan policy was policy GB20 in the Chiltern District Local Plan (including alterations adopted in 2001 and 2004), which had been preserved by the Secretary of State by a direction under para. 1(3) of Sch. 8 to the Planning and Compulsory Purchase Act 2004.  That policy provided that the Council would only grant planning permission for the occupation of a new dwelling in the Green Belt without compliance with an agricultural occupancy condition where it could convincingly be demonstrated that there was no current or longer term requirement for an agricultural dwelling on the holding or to meet the needs of the local agricultural community.  The Inspector went on to observe that, in accordance with the policy: “In order to establish whether there is a longer term need for an agricultural dwelling the Council will have regard to, for example, the number of planning applications received for new agricultural dwellings and will require a marketing exercise aimed at the agricultural community.”  (Emphasis added)  At para. 21 of the Decision Letter the Inspector observed that Circular 11/95 on the Use of Conditions in Planning Permissions, at para. 105, advises that agricultural occupancy conditions should not be removed unless it is shown that the existing need for dwellings for agricultural workers in the locality no longer warrants reserving the house for that purpose.

13.	At para. 22 of the Decision Letter the Inspector noted that Dr Hine admitted that no marketing exercise had been undertaken but he had provided two letters from Chartered Surveyors, which concluded that there was very poor demand in the area for properties with an agricultural occupancy condition.  At para. 23 the Inspector accepted that Planning Policy Statement 7 on Sustainable Development in Rural Areas (“PPS 7”) does not require a marketing exercise but also noted that policy GB20 was a saved policy and did require such an exercise.  At para. 25 she expressed her opinion that the two letters submitted by Dr Hine fell “far short” of the marketing exercise requirements of the policy and that the writers of the letters had not attended the inquiry so that the content of their letters could be amplified and tested by cross-examination.

14.	Paras. 26-27 of the Decision Letter, with a transcription error corrected in a witness statement by the Inspector dated 14 January 2009,  stated:

“26.	The Cottage shares a driveway with the House and the Appellant contends that it is unsuitable for occupation in compliance with the condition but the contention was not substantiated by any evidence.  During the time the Appellant owned the appeal site the Cottage was let to people who had a variety of occupations, such as, a Human Resources Director, people involved in car repairs/trading, people in the restaurant business and people involved in architecture.  Given the different occupations of the recent occupants I fail to understand why someone engaged, or last engaged, in agriculture would be an unsuitable tenant.

27.	The Council provided evidence of a small number of applications for new agricultural dwellings within five miles of the appeal site over the past five years.  Taking into account local policy requirements and national advice, it is not surprising that these were dwellings that satisfied the functional need test.  There appears to me to be some demand for agricultural dwellings and, in any event, there is no marketing exercise upon which any conclusion one way or the other can be reached.”

In the uncorrected version of the Decision Letter, it continued with the following (old) para. 27:

“Under the current policy regime relating to development in the Green Belt, it seems to me that planning permission would not be granted for the Cottage unless its occupancy was restricted to, for example, those mainly employed in agriculture or staff mainly employed at Chenies House and gardens.”

MATERIAL LEGISLATION

15.	The grant of CLEUDs is governed by section 191 of the 1990 Act, which, so far as material, provides:

“191. Certificate of lawfulness of existing use or development

(1)	If any person wishes to ascertain whether –

(a)	any existing use of buildings or other land is lawful;
(b)	any operations which have been carried out in, on, over or under land are lawful; or
(c)	any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,

he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.
…

(3)	For the purposes of this Act any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful at any time if –

(a)	the time for taking enforcement action in respect of the failure has then expired; and
(b)	it does not constitute a contravention of any of the requirements of any enforcement notice or breach of condition notice then in force.

(4)	If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application.

(5)	A certificate under this section shall –

(a)	specify the land to which it relates;
(b)	describe the use, operations or other matter in question (in the case of any use falling within one of the classes specified in an order under section 55(2)(f), identifying it by reference to that class);
(c)	give the reasons for determining the use, operations or other matter to be lawful; and
(d)	specify the date of the application for the certificate.

(6)	The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed.
…”

16.	Dr Hine’s application to the Council for a CLEUD was made pursuant to section 191(1)(c), on the basis that the occupancy of the cottage in breach of the occupancy condition was lawful by virtue of section 191(3)(a), i.e. that the time for taking enforcement action against the breach of the occupancy condition had expired.

17.	The reference in section 191(3)(a) to the time for taking enforcement action is a reference to the time limits imposed by section 171B of the 1990 Act, as amended. So far as relevant, sections 171A and 171B provide:

“171A. Expressions used in connection with enforcement

(1)	For the purposes of this Act –

(a)	carrying out development without the required planning permission; or
(b)	failing to comply with any condition or limitation subject to which planning permission has been granted,

constitutes a breach of planning control.

(2)	For the purposes of this Act -
(a)	the issue of an enforcement notice…; or
(b)	the service of a breach of condition notice…,

constitutes taking enforcement action.

(3)	In this Part “planning permission” includes permission under Part III of the 1947 Act, of the 1962 Act or of the 1971 Act.

171B. Time limits

(1)	Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.

(2)	Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.

(3)	In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach.

(4)	The preceding subsections do not prevent –

(a)	the service of a breach of condition notice in respect of any breach of planning control if an enforcement notice in respect of the breach is in effect; or
(b)	taking further enforcement action in respect of any breach of planning control if, during the period of four years ending with that action being taken, the local planning authority have taken or purported to take enforcement action in respect of that breach.”

18.	In the present case, as the relevant breaches of planning control were breaches of the occupancy condition, it is the time limit of ten years provided for in section 171B(3) which was applicable.

19.	The grant of planning permission for development already carried out without complying with conditions attached to a planning permission is governed by section 73A of the 1990 Act, which provides:

“73A. Planning permission for development already carried out

(1)	On an application made to a local planning authority, the planning permission which may be granted includes planning permission for development carried out before the date of the application.

(2)	Subsection (1) applies to development carried out –

(a)	without planning permission;
(b)	in accordance with planning permission granted for a limited period; or
(c)	without complying with some condition subject to which planning permission was granted.

(3)	Planning permission for such development may be granted so as to have effect from –

(a)	the date on which the development was carried out; or
(b)	if it was carried out in accordance with planning permission granted for a limited period, the end of that period.”

20.	In view of the history of the cottage in the present case, it is important to refer to relevant provisions of the planning legislation that preceded the 1990 Act, as amended.
Town and Country Planning Act 1947

21.	Planning permission for the erection of the cottage was granted in 1961. At that time, the Town and Country Planning Act 1947 (“the 1947 Act”) was in force. Pursuant to section 14(1) of that Act, a local planning authority had the power to grant planning permission to develop land, either unconditionally or subject to such conditions as it thought fit. In this context, “development” was defined as the carrying out of operations in, on, over or under land, or the making of any material change in the use of any buildings or land (section 12(2)).

22.	Pursuant to section 18(3) of the 1947 Act, where planning permission was granted for the erection of a building but no purpose for the building was specified in the planning permission, the planning permission was to be construed as including permission to use the building for the purpose for which it was designed. In the present case, the planning permission for the cottage permitted “the erection of a dwelling”. Accordingly, the use for which permission was granted was use as a single dwelling-house.

23.	Pursuant to section 23(1) of the 1947 Act, where development had been carried out without the grant of permission or where any conditions subject to which permission was granted had not been complied with, then a local planning authority had a power to serve an enforcement notice within four years.

24.	As the cottage was only occupied in breach of the occupancy condition from 1961 onwards, the four year period provided for by the 1947 Act had not expired before that Act was repealed with effect from 1 April 1963. Accordingly, for so long as the 1947 Act remained in force, the failure to comply with the occupancy condition could have been the subject of enforcement action.

Town and Country Planning Act 1962

25.	The Town and Country Planning Act 1962 (“the 1962 Act”) came into force on 1 April 1963 (section 225(1)), less than two years after planning permission had been granted for the cottage. The provisions relating to the definition of development, the grant of planning permission, and enforcement notices were (insofar as is material) to similar effect as those previously contained in the 1947 Act (sections 12(1), 17(1), 45(1) and (2)).

26.	In particular, section 45(2)(b) provided that, where an enforcement notice related to non-compliance with a condition, the period for service of the notice was four years from the date of the alleged failure to comply with the condition. By virtue of the relevant transitional provision, the four year period referred to in section 45(2)(b) was to be treated as commencing at the same time as the four year period previously referred to in section 23(1) of the 1947 Act had commenced (section 223 and Sch 14, para 3). Accordingly, for the purposes of section 45(2)(b) of the TCPA 1962, the four year period in respect of the cottage was deemed to have commenced in 1961.

27.	On the basis that the failure to comply with the occupancy condition that had commenced in 1961 subsisted thereafter, at some point in 1965 the local planning authority no longer had power to serve an enforcement notice. In effect, therefore, from 1965 onwards, the failure to comply with the occupancy condition that had commenced in 1961 was immune from enforcement under the 1962 Act.  So much was expressly conceded on behalf of the Secretary of State in the proceedings before me.

28.	The relevant sections of the 1962 Act were repealed with effect from 1 April 1969.

Town and Country Planning Act 1968

29.	The relevant provisions of the Town and Country Planning Act 1968 (“the 1968 Act”) came into force on 1 April 1969.

30.	Pursuant to section 15(1), where there was a breach of planning control after the end of 1963, a local planning authority had a power to serve an enforcement notice. A “breach of planning control” was defined in section 15(2). Accordingly, the four year period for serving an enforcement notice that had applied pursuant to the 1947 and 1962 Acts was abolished. The 1968 Act did not make any transitional provisions for the abolition of the four year period.

31.	Pursuant to section 16(1)(d), it was a ground of appeal against an enforcement notice that the breach of planning control alleged by the notice occurred before the beginning of 1964 (i.e. where it had occurred at least four years before the 1968 Act came into force). 

32.	Accordingly, on the basis that the failure to comply with the occupancy condition that had commenced in 1961 subsisted thereafter, that failure was (in effect) immune from enforcement under the 1968 Act.  This too was expressly conceded on behalf of the Secretary of State in the proceedings before me.

33.	The relevant sections of the 1968 Act were repealed with effect from 1 April 1972. 

Town and Country Planning Act 1971

34.	The Town and Country Planning Act 1971 (“the 1971 Act”) came into force on 1 April 1972 (section 294(1)). Sections 87 and 88 of the 1971 Act re-enacted the enforcement provisions of the 1968 Act to which I have referred above.

35.	Again, therefore, on the basis that the failure to comply with the occupancy condition that had commenced in 1961 subsisted thereafter, that failure was (in effect) immune from enforcement under the 1971 Act.  This again was conceded on behalf of the Secretary of State in the proceedings before me.

36.	The 1971 Act was repealed with effect from 14 August 1990.

Town and Country Planning Act 1990 (as originally enacted)

37.	The Town and Country Planning Act 1990 (“the 1990 Act”) came into force on 14 August 1990. As originally enacted, sections 172 and 173 largely replicated the enforcement provisions of the 1971 Act.

38.	Again, therefore, on the basis that the failure to comply with the occupancy condition that had commenced in 1961 subsisted thereafter, that failure was (in effect) immune from enforcement under the 1990 Act (as originally enacted).  This too was conceded on behalf of the Secretary of State in the proceedings before me.

Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991)

39.	The present provisions relating to enforcement are the result of amendments made to the 1990 Act by the Planning and Compensation Act 1991 (“the 1991 Act”), sections 1 and 4, with effect from 2 January 1992.

40.	The only relevant transitional provision made by the 1991 Act itself was to preserve any immunity from enforcement that had arisen by virtue of section 172(4)(b) of the 1990 Act as originally enacted (1991 Act, section 4(2)). That section is not relevant for present purposes. Section 84(1) and (3) of the 1991 Act empowered the making of commencement provisions which included transitional provisions. The Planning and Compensation Act 1991 (Commencement No 5 and Transitional Provisions) Order 1991 (SI 1991 No 2905), article 5 made transitional provisions for the commencement of the new enforcement regime, but none of those transitional provisions is relevant for present purposes.

41.	Accordingly, the 1991 Act and the relevant commencement orders were silent as to how the amendments that that Act made to the 1990 Act would affect the immunity from enforcement that was in effect previously conferred by section 174(2)(e) (i.e. where the breach of planning control alleged by the notice occurred before the beginning of 1964).

42.	However, this issue was considered in Panton & Farmer v Secretary of State for the Environment, Transport and the Regions (1998) 78 P&CR 186, at p.193, where it was held to be “clear … that an immunity accrued under the previous statutory provisions was not prejudiced by the 1991 provisions” (Mr Christopher Lockhart-Mummery QC, sitting as a deputy High Court judge).  Earlier in the same passage, the deputy Judge said that: “if it were necessary, section 16 of the Interpretation Act 1978 would seem to protect the immunity acquired under the previous legislation.”  Section 16 of the Interpretation Act provides that: “ … where an Act repeals an enactment, the repeal does not, unless the contrary intention appears, … (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment; …”.  The decision in Panton is one to which I shall have to return for other reasons later.

43.	In the proceedings before me it was accepted by the Secretary of State that, on the basis of Panton, the breach of the occupancy condition which acquired immunity from enforcement action in 1965 continued to enjoy immunity after the 1991 Act came into force.

CHALLENGES BEFORE THE COURT

44.	There are two challenges before the Court, first, to the Inspector’s decision on the CLEUD appeal and, secondly, to the Inspector’s decision on the planning permission appeal.  I will address each in turn. 
THE FIRST ISSUE: THE CLEUD APPEAL

45.	The Claimant’s principal argument on the First Issue is that the application for a CLEUD should have been granted since the relevant facts satisfied the requirements of section 191(3) of the 1990 Act.  In particular it was said that the breach of the occupancy condition had lasted for a continuous period of at least 10 years by the time of the date of the application to the Council.  It was argued that the Inspector erred in law in regarding Nicholson as being in effect determinative of the issue before her, since that case concerned very different facts and a different issue of law.

46.	For the Secretary of State it was accepted that, if the Inspector erred in law in regarding Nicholson as governing the present case, the matter had to be remitted for reconsideration.  However, it was contended that the Inspector was right to have regard to Nicholson in the present context although the facts were admittedly not identical.

47.	Nicholson also involved an agricultural occupancy condition. In that case the dwelling had been occupied in accordance with the condition between 1962 and 1977. Thereafter it was unoccupied for some seven years until 1984. From 1984 to 1991 it was occupied in breach of the condition and from 1991 to the date of the application for a CLEUD in 1995 it was unoccupied during a period when it was being renovated pending occupation by the applicant.

48.	Mr Robin Purchas QC, sitting as a deputy High Court judge, held that the Secretary of State was right not to grant a CLEUD. He pointed out that the use of the present tense “is” in section 191(1) indicated that the section was directed to the position as at the time the application for a CLEUD was made, an interpretation that was supported by section 191(4), which requires a local planning authority considering an application for a CLEUD to direct its mind to the issue of lawfulness “at the time of the application” (see p. 198). On this basis, he held that the correct approach to an application for a CLEUD was first to identify the failure to comply, secondly to see when as a matter of fact and degree that failure began, and thirdly to decide whether a period of 10 years had since expired (see p. 198).

49.	The deputy Judge then went on to emphasise the importance of having regard to the particular nature of the breach of planning control in question when addressing the three issues identified by him (see pp. 198-199):

“In this context a failure to comply with a condition is not to be confused with the continuation or abandonment of a planning use. Enforcement action against a breach of condition is concerned with the particular breach in question. If non-compliance ceases by discontinuance of the offending activity or otherwise, that breach is at an end. The condition, however, will in an appropriate case continue in force. If there is subsequently renewed non-compliance, that would, in my judgment, be a fresh breach. The period for enforcement against that breach under section 171B(3) will begin to run again. It is not permissible to add the period of one breach to that of a subsequent breach, if as a matter of fact and degree they are separate breaches.

In applying that test under section 191(3)(a) the decision-maker is concerned with the particular non-compliance, the subject of the application for a certificate. That seems to me consistent with a requirement that the non-compliance should exist at the time of the application.

Thus I conclude that, confining myself to a consideration of the provisions in section 191 which deal specifically with failure to comply with a condition, an application can only be made if non-compliance exists at the time of the application. The applicant will then be entitled to a certificate of lawfulness if at that time the failure, the subject of the application, satisfies the definition of lawfulness, that is that a period of 10 years has expired since that breach occurred and that it does not constitute a contravention of any enforcement notice or breach of condition notice.”

50.	It is important to recall that on the facts of Nicholson there had never been a breach of the agricultural occupancy condition in that case for a period of at least 10 years.  There had been occupation of the dwelling in breach of such a condition between 1984 and 1991 but, on the findings of fact made by the inspector in that case, the dwelling had not been occupied at all from 1991 until 25 May 1995, the date of the application for a certificate.  To that extent, the facts of Nicholson are distinguishable from those of the present case, in which it is common ground that there was a breach of the relevant condition for more than 10 years, from 1961 to 2000.

51.	One of the arguments made on behalf of the applicant in Nicholson was that there does not have to be a breach of a condition for at least 10 years provided that the breach started more than 10 years before the application for a certificate.  That argument by counsel for the applicant is summarised in the following passage: “The breach in this case was found by the Inspector and the first respondent [the Secretary of State] to have been in 1984.  Thus the period of 10 years had expired before the application was made.  [Counsel for the applicant] does not challenge the finding of the Inspector and the first respondent that there was no breach between 1991 and the date of the application.  He submits that, once the breach has occurred and the period of 10 years has expired, an applicant is entitled to the issue of a certificate.  There was, therefore, no basis in law for the first respondent’s rejection of an appeal on the ground that there was ‘no existing breach of control which could be said to have gained immunity because it had continued for more than ten years.’” (See pp.196-7 in the judgment).

52.	It is clear that the deputy Judge in that case rejected that argument for the applicant: it is not possible to obtain a certificate where the breach of condition has not taken place for at least 10 years.  I was initially attracted by the Claimant’s submission that that is the only proposition of law for which Nicholson is authority.  However, I have been persuaded by the Secretary of State that the deputy Judge did not stop there.  It was argued before him by counsel for the Secretary of State that the relevant breach of planning control must still be subsisting at the time of the application for a CLEUD (see p.197).  It is also worth noting that counsel for the applicant is recorded at the outset of the judgment to have submitted that “the first respondent erred in holding that it was necessary for the purpose of section 191 of the 1990 Act that there should be a subsisting breach of the condition at the date of the application.” (See p.192).

53.	The deputy Judge endorsed the submission for the Secretary of State on this point.  In a passage which I have already quoted more fully, he stated that: “In applying [the] test under section 191(3)(a) the decision-maker is concerned with the particular non-compliance, the subject of the application for a certificate.  That seems to me consistent with a requirement that the non-compliance should exist at the time of the application. … I conclude that, confining myself to a consideration of the provisions in section 191 which deal specifically with failure to comply with a condition, an application can only be made if non-compliance exists at the time of the application.”  The deputy Judge went on to state that conclusion was consistent with other “linked” provisions in the 1990 Act too.  

54.	It may not matter whether, strictly speaking, that part of the Judge’s reasoning is part of the ratio decidendi or obiter dicta,  since even the ratio would not be binding on me as another single judge sitting at first instance.  However, I have been persuaded by the Secretary of State that the approach taken by the deputy Judge in Nicholson was part of the ratio and that, in any event, I should follow it.  The point was fully argued in that case.  It appears to me to have been one of the essential steps in the reasoning of the deputy Judge himself even if it was not the only basis for his decision.  I am also very conscious of the deputy Judge’s extensive experience in the field of planning law.  Finally, I bear in mind that Nicholson has been cited with approval in the Court of Appeal, although the precise legal issue in that case was not the same as in the present case: Swale BC v First Secretary of State and another [2005] EWCA Civ 1568, at para. 6 (Keene LJ).

55.	However, the Claimant contends that a period of breach of condition for 10 years or more in the past is capable of “crystallising” immunity from enforcement and in such a case that immunity can only be lost if there has been abandonment, material change of use or a change in the planning unit. In support of this contention, the Claimant relies, first, on the statutory language, in particular the provisions of section 171B and section 191 of the 1990 Act, which, submits the Claimant, make plain that the immunity provisions and accrual of lawfulness apply to breaches of planning condition in the same way as to other breaches of planning control such as a material change of use made without planning permission.  In addition the Claimant relies upon a number of authorities.
56.	I do not consider that the decision in Panton & Farmer v Secretary of State for the Environment, Transport and the Regions (1998) 78 P&CR 186 supports the Claimant’s submission, as was contended.  That case related to an application for a CLEUD for particular uses of a three-storey mill building. Accordingly, the breaches of planning control in question were material changes of use. Panton did not concern a breach of condition as the present case does.  The deputy Judge held that, if immunity from enforcement is acquired in respect of a material change of use, that immunity could only be lost by abandonment, by the formation of a new planning unit or by a further material change of use (see p. 193).  That was based upon well-established principles of planning law: see Hartley v Minister of Housing and Local Government [1970] 1 QB 413, at pp. 420-421 (Lord Denning MR); and Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132, at pp. 143-144 (Lord Scarman).  However, I accept the submission for the Secretary of State that material changes of use are to be treated in a different way from breaches of condition and that this distinction was recognised in Panton itself.

57.	The deputy Judge in Panton expressly stated his view that his decision was not inconsistent with Nicholson (see p. 194). He did so having summarised the relevant passage from Nicholson and having directly quoted the comments in that case about the need not to confuse a breach of condition with a material change of use.  The deputy Judge expressly had in mind the part of the judgment in Nicholson which addressed the timing of the relevant breach of planning control and said that: “Mr Purchas held that a [CLEUD] could only be granted where the non-compliance with the planning condition was current at the date of the application.  As Mr Purchas pointed out, if there were a period, following non-compliance, of compliance with the condition, the breach would be at an end, and a later breach would constitute a fresh breach, in relation to which time would begin to run again under section 171B(3).”  Later on the same page, the deputy Judge said: “The burden of Mr Purchas’s reasoning is that there must be, at the date of the application, a use or operation at the land upon which an enforcement notice could ‘bite’.”  Far from disagreeing with Nicholson on the timing point, it is clear that Panton endorses it.

58.	I consider, therefore, that Panton and Nicholson are consistent with each other and that Panton does not require the Secretary of State to take a different approach in a breach of condition case from the one taken in Nicholson.

59.	I also observe that Mr Lockhart-Mummery was also the deputy Judge in North Devon District Council v Secretary of State for the Environment and Rottenbury (Unreported, 28 April 1998), in which he again made reference to the distinction between material changes of use and breaches of condition and the importance of not eliding the two concepts in that case. The deputy Judge also referred to Nicholson and noted that the issue in that case “was whether a breach needed to be subsisting at the time of the application”: this reinforces me in my own conclusion that that was indeed one of the issues decided in Nicholson.

60.	The Claimant also relies upon Secretary of State for the Environment, Transport and the Regions v Thurrock Borough Council [2002] 2 PLR 43, which  was concerned with whether or not the local planning authority could issue an enforcement notice in respect of a material change of use or whether that change of use was immune from enforcement. The Court of Appeal held that the relevant issue when considering whether a local planning authority may issue an enforcement notice in respect of a material change of use was that of whether the material change of use identified in the enforcement notice had occurred more than ten years before the issue of the enforcement notice (p 52 per Schiemann LJ and pp 56-57 per Chadwick LJ). The Court of Appeal expressed the view that Thurrock was not concerned with the type of issue that had arisen in Panton (i.e. where an immunity against enforcement might have arisen at some earlier stage). Although some aspects of the judgment of the deputy Judge in Panton were disapproved in Thurrock, they did not concern the issue which has arisen in the present case: see paras. 57-59 (Chadwick LJ).  Again, therefore, I accept the Secretary of State’s submission that Thurrock does not advance the Claimant’s case.

61.	The Claimant also criticises the Inspector’s treatment of North Devon District Council v First Secretary of State and Stokes [2004] 3 PLR 62. That case involved a condition restricting the occupation of bungalows to the period between March and November each year. A CLEUD was sought in circumstances where the bungalows had been occupied all year round for a period of ten years. The local planning authority asserted that there were separate breaches every year and relied upon Nicholson to support a submission that those breaches could not be aggregated to constitute the necessary ten year period. Sullivan J rejected that submission, holding that it was not appropriate “mechanically” to apply the dicta in Nicholson to cases involving conditions that could not be breached throughout the year (see para 27). I readily accept Sullivan J’s salutary warning in a passage upon which the Claimant relied that: “Judicial dicta must be interpreted and applied in the context of the issue that was before the court.  They should not be treated as though they were contained in an enactment of general application.” (para. 16) However, North Devon does not call into question the appropriateness of applying the approach adopted in Nicholson to cases involving conditions such as the occupancy condition in the present case, still less the general principle that the relevant breach of planning control must still be subsisting at the date of the application for a CLEUD.

62.	The Claimant also relied upon the decision of the Court of Appeal in Arun District Council v First Secretary of State and another [2007] 1 WLR 523, in particular a passage at para. 49, where Carnwath LJ said: “As long as it involves a ‘change of use’, it matters not which type of breach it is: whether development without planning permission or a failure to comply with a condition.”  However, the legal issue in that case was not the same as the one which has arisen in Nicholson and in the present case.  The passage relied upon has to be understood in its context.  What Carnwath LJ was addressing was the interpretation of section 171B(2) of the 1990 Act.  That provision imposes a four year time limit for enforcement action where the breach of planning control consists in “the change of use of any building to use as a single dwellinghouse”.  In that case there had been a condition attached to the grant of planning permission for an extension to a house which prohibited its use as a separate dwelling if it ceased to be occupied by a dependent relative (as indeed happened).  In one sense, the breach of planning control could have been characterised as a breach of condition, with the result that the time limit would have been 10 years: that was the decision reached by Judge Mole QC sitting as a deputy High Court judge at first instance in Arun.  The Court of Appeal reversed that decision, holding that, if the breach of planning control consists in a change of use to a single dwellinghouse, it falls within the terms of section 171B(2), so that the time limit is four years: it does not matter that the breach could also be characterised as a breach of condition.

63.	The last of the principal authorities upon which the Claimant placed reliance is Fairstate Ltd v First Secretary of State and another [2005] EWCA Civ 283.  As Ward LJ put it at para. 4 of his judgment (with which Carnwath LJ and Lord Slynn of Hadley agreed), the “interesting question” which arose in that case was “what if any breach of planning control occurs where the use to which a London flat was put changed over three stages, 1) for more than ten years as temporary sleeping accommodation which made that use lawful, but 2) with a change for about five months to longer-term residential occupation, and finally 3) reverting back for the next four years to temporary sleeping accommodation.”  It is important to note that it was common ground in that case that, at stage 1, use of the flat for temporary sleeping accommodation had become a lawful use by virtue of section 191(2) of the 1990 Act: see para. 15.  Nevertheless, it was held by the Court of Appeal that the change from stage 2 to stage 3 (from permanent back to temporary sleeping accommodation) was a breach of planning control in respect of which enforcement action could be taken.  This was the consequence of section 25 of the Greater London (General Powers) Act 1973, as amended, which in subsection (1) provided that: “For the purposes of [section 55(1) of the 1990 Act], the use as temporary sleeping accommodation of any residential premises in Greater London involves a material change of use of the premises and of each part thereof which is so used.”  That was a deeming provision to which the Court of Appeal had to give effect: see in particular paras. 21 and 25.

64.	It seems to me that Fairstate does not assist the Claimant’s case.  First, the applicant in that case in fact lost although immunity from enforcement action had been acquired at an earlier point in time.  This was because of the “destructive effect” (para. 17) of section 25 of the 1973 Act.  That case turned upon the very specific statutory provision which had to be interpreted and applied.  Secondly, that case, like most of the cases upon which the Claimant relies, concerned a material change of use (albeit in that case a deemed material change of use) rather than a breach of condition.  Thirdly, the legal issue which has arisen in Nicholson and in the present case was not before the Court of Appeal in Fairstate: in particular whether the relevant breach of planning control must subsist at the time of an application for a CLEUD. 

65.	At one point during the hearing of this case I was attracted to the alternative submission for the Claimant that the fact that the breach of planning control in the present case began before the beginning of 1964 should lead to the conclusion that a CLEUD should have been granted in any event.  As I have mentioned earlier, it was accepted by the Secretary of State before me that the breach of planning control acquired immunity from enforcement action sometime in 1965 and that the immunity was preserved by the later planning legislation.

66.	However, I have been persuaded by the Secretary of State that that does not affect the crucial question in the present case, which is whether the relevant breach of planning control must still subsist at the date of the application before a CLEUD can be granted.  On that question, I accept, as the Claimant submitted, that the decision in Nicholson is not directly in point because, on its facts, it did not concern a breach which had started before the beginning of 1964 and acquired immunity from enforcement action under the 1968 Act and subsequent legislation.  Nevertheless, I also accept the Secretary of State’s submission that the reasoning in Nicholson, that a breach of condition can cease and a fresh breach begin later, and that the relevant breach of planning control in respect of which a CLEUD is sought must still subsist at the date of the application for it, does apply to the present context.

67.	I accept the Secretary of State’s submission that in the various planning Acts which I have cited above Parliament was concerned with conferring immunity on a particular failure to comply with a condition and not on a type of failure generally. As such, there is no qualitative difference between an immunity from enforcement action that has arisen from a failure to comply with a condition that has subsisted since before the beginning of 1964 and an immunity that has arisen as a result of the passage of the 10 year period referred to in section 171B(3) of the 1990 Act. The reasoning in Nicholson applies to such immunity regardless of how it has arisen.  In particular, that reasoning requires that the relevant breach of condition must still subsist at the time of an application for a CLEUD.

68.	My conclusion on the First Issue is that the Inspector did not err in law as contended by the Claimant.

SECOND ISSUE: THE PLANNING PERMISSION APPEAL

69.	In fairness to the Claimant the Second Issue did not loom large at the hearing before me.  The Claimant submits that the Inspector mechanistically applied policy GB20 in the Chiltern District Local Plan requiring a marketing exercise without considering whether there were any material considerations before her that could enable a decision to be made having regard to the purpose of the local plan policy and national policy guidance in PPS 7, which did not require such an exercise.  The Claimant contends in the alternative that the Inspector’s reasoning was inadequate, in particular that she did not explain why the evidence before her was not sufficient (in the light of national guidance in PPS 7) to determine whether or not the condition was warranted given that no one had ever used it for the purpose of agricultural occupancy.

70.	I was reminded by counsel for the Secretary of State that the duty of an Inspector to give reasons for a  decision is as follows (South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953, para 36 per Lord Brown):

“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such an adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

71.	I am satisfied that the Inspector did not err in law.  I am also satisfied that her reasons are proper, adequate and intelligible.  

72.	The Inspector did not (as the Claimant contends) “mechanistically” applying the local plan policy.  The Inspector expressly recognised that national planning policy in PPS 7 did not require a marketing exercise (para. 23 of the Decision Letter). Consistently with this, she had regard to the two surveyor’s letters produced by Dr Hine (para. 22) and the fact that a small number of new agricultural dwellings had been proposed in the locality during the preceding five years (paras. 26/27). However, the Inspector concluded that this evidence was, without more, insufficient to enable her to reach a firm conclusion as to whether or not there was a continuing need for agricultural dwellings in the locality. This is what the Inspector meant when she said that “…in any event, there is no marketing exercise upon which any conclusion one way or the other can be reached.” She was not saying that a marketing exercise was a prerequisite for establishing the lack of relevant need, she was simply saying that on the evidence before her, the absence of a marketing exercise meant that she could not reach a firm conclusion either way on that issue.

73.	As the Inspector observed, it was for Dr Hine to establish that there was no need for agricultural dwellings in the locality and, therefore, in the absence of conclusive evidence one way or the other, he had failed to discharge that burden (para. 29 of the Decision Letter). 

74.	In (old) para. 27 of the Decision Letter, which was also criticised by the Claimant, the Inspector was simply making the point that, if the question of whether to grant planning permission for the cottage were to be considered afresh at the present day, it was unlikely that any such permission would be granted without some form of occupancy condition being imposed. As Dr Hine was, in effect, contending that the cottage should be freed from any form of occupancy condition, it seems to me that this was a matter that the Inspector was entitled to take matter into account when determining the planning permission appeal.

75.	I conclude that the challenge to the Inspector’s decision on the planning permission appeal also fails.

CONCLUSION

76.	For the reasons which I have set out this application by the Claimant is refused.