Secretary Of State For Environment & Anor v Thurrock Borough Council

Factual and Procedural Background

This opinion concerns appeals from a judgment of Judge Newman regarding two enforcement notices served under the Town and Country Planning Act 1990 by Thurrock Borough Council, the Local Planning Authority (LPA). The notices relate to land at King's Farm, Orsett, Essex, and involve two appellants for each notice: the Secretary of State and the landowner, referred to as the Landowner. The first notice addresses a material change of use of land involving aircraft movements and raises a significant legal question about the time limits for issuing enforcement notices. The second notice concerns the erection of a building and associated works, with an appeal against the grant of planning permission on an enforcement notice appeal. The court considered these two matters separately.

Legal Issues Presented

1. Whether the enforcement notice alleging a material change of use of land was served within the statutory time limits, specifically addressing the interpretation of the ten-year limitation period under section 171B(3) of the Town and Country Planning Act 1990.
2. Whether the Inspector erred in law by quashing the enforcement notice on the basis of abandonment and the proper application of the Panton and Farmer precedent.
3. Whether the Inspector correctly granted planning permission for the development subject to the second enforcement notice, considering the applicability of permitted development rights under Class E of the Town and Country Planning (General Permitted Development) Order 1995.
4. Whether the Inspector adequately considered if there was a realistic prospect of a fallback position involving a new building being erected within the curtilage of the dwellinghouse and whether the building was required for a purpose incidental to the enjoyment of the dwellinghouse.

Arguments of the Parties

Appellants' Arguments

• The breach of planning control alleged in the enforcement notice began more than ten years before the notice was issued, during commercial aircraft operations in the early 1980s.
• The enforcement notice should be construed based on the breach alleged, not by reference to the conditions set out later in the notice.
• Periods of inactivity ("fallow periods") do not interrupt the running of the ten-year limitation period unless there has been abandonment of the use.
• Enforcement action could be taken during fallow periods, and even if it could not, time would continue to run unless abandonment occurred.
• The material change of use had occurred by February 1984, and unless the LPA could show abandonment, enforcement action was time-barred after ten years.
• Regarding the second notice, the Inspector was correct to consider the fallback position that the landowner could erect a permitted building elsewhere on the property, which could be more harmful to the Green Belt.
• The Inspector must have been satisfied that the building was required for a purpose incidental to the enjoyment of the dwellinghouse and that there was a realistic prospect of erecting a replacement building if the enforcement notice were upheld.

Local Planning Authority's Arguments

• The correct approach is to identify the activity complained of and compare what was occurring ten years prior to the notice to determine if a material change of use took place within that period.
• The rationale behind the limitation provisions is that enforcement action must be taken within the relevant period or be lost, reflecting fairness where the LPA has had the opportunity but failed to act.
• Periods during which no breach was occurring cannot count towards the limitation period.
• LPAs often tolerate minor or non-material uses or reduced activity, and it would be undesirable if such tolerance barred enforcement action if the activity resumed or intensified later.
• Regarding the second notice, there was no evidence before the Inspector to support the conclusion that there was a realistic prospect of a replacement building being erected within the curtilage for a purpose incidental to the dwellinghouse.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the enforcement notice alleging a material change of use and the time limits for enforcement action under the Town and Country Planning Act 1990. It found that the Inspector had erred in law by applying the Panton precedent incorrectly, treating a period of unlawful activity in the early 1980s as establishing a lawful use without adequately considering whether the breach continued uninterrupted within the ten years preceding the notice. The court emphasized that the correct legal question was whether there had been a material change of use within the ten years immediately before the enforcement notice, and whether enforcement action could have been taken throughout that period.

The court agreed with the judge that the rationale behind the immunity provisions is to ensure fairness where the LPA has had the opportunity to act but failed to do so within the statutory period. It rejected the Inspector's approach of placing the burden on the LPA to prove abandonment rather than requiring the landowner to prove continuous breach within the limitation period.

Regarding the second enforcement notice, the court found that the Inspector had failed to provide adequate reasoning on whether the building was within the curtilage and used for a purpose incidental to the dwellinghouse, and whether there was a realistic prospect of a fallback building being erected. The court noted the absence of evidence supporting the Inspector's conclusions and emphasized the requirement for clear reasoning in enforcement notice appeals.

Overall, the court upheld the judge's decision on the first enforcement notice and dismissed the appeals against the second, concluding that the Inspector's reasoning was insufficient and that the appeals should be dismissed.

Holding and Implications

The court DISMISSED the appeals by the Landowner and the Secretary of State against the judgment of Judge Newman.

The direct effect is that the enforcement notice alleging a material change of use is upheld, confirming that enforcement action was not time-barred. The grant of planning permission on the second enforcement notice appeal is quashed due to insufficient reasoning and lack of evidence supporting the Inspector’s decision.

No new legal precedent was established; the decision clarifies the proper application of limitation periods and the burden of proof in enforcement notice appeals under the Town and Country Planning Act 1990.