Town and country planning – Planning permission to retain house subject to condition relating occupancy to equestrian facilities to be built on-site – Non-compliance with condition – Application for lawful use certificate refused and appeal dismissed – Appellant local planning authority issuing breach of condition notice – Respondent bringing claim for declaration of invalidity of notice – Whether claim constituting abuse of process – Appeal allowed
In 1997, the respondent obtained retrospective planning permission, on an appeal against an enforcement notice, for the retention of a house built on his land in breach of planning control. The appellant council were the local planning authority for the area. A condition attached to the permission required the house to be occupied only by persons who were working at or enjoying the facilities of a proposed stables and cross-country course on the respondent’s land; a related agreement, under section 106 of the Town and Country Planning Act 1990, required the stables and cross-country course to be built within specified periods.
The respondent did not comply with the condition. In 2007, he applied for a lawful use certificate, under section 191 of the 1990 Act, on the ground that the 10-year time limit for enforcement in respect of his breach of condition had expired. The appellants refused that application and, in 2008, issued a breach of condition notice under section 187, requiring the permanent cessation of occupation of the house other than as specified by the condition. In early 2009, an inspector dismissed the respondent’s appeal against that notice. He determined that the condition could not come into effect until the completion of the equestrian facilities to which it was linked and that since the facilities had not been completed 10 years before the application, the respondent had not been in breach of condition for the requisite 10-year period.
The respondent commenced proceedings, seeking a declaration that: (i) the breach of condition notice had been served on him more than 10 years after the breach alleged; and (ii) consequently, the failure to comply with the condition had become lawful by the time the notice was served because the time for taking enforcement action had expired. The appellants applied to strike out the claim as an abuse of process on the ground that the appropriate means of challenge to the validity of the notice was by way of judicial review and not by private law proceedings; that application was dismissed. The appellant appealed.
Held: The appeal was allowed.
Under the “exclusivity principle”, it was an abuse of process to challenge the validity of public law actions or decisions other than by judicial review: O’Reilly v Mackman [1983] 2 AC 237 applied. The considerations behind that principle included the streamlined procedure for judicial review, the requirement for leave and the short time limit for commencing proceedings. Since it was often difficult to maintain a clear division between public and private law, the rigidity of the rule had been relaxed accordingly, particularly in respect of private law disputes that involved public law authorities. Accordingly, private law rights could be enforced by civil action even though they might involve a challenge to a public law decision or action: Roy v Kensington and Chelsea Family Practitioner Committee [1992] 1 AC 624 applied. However, that did not undermine the principle that purely public law acts should be challenged by way of judicial review and that it was in the public interest that the legality of the formal acts of a public authority should be established without delay; that principle was confirmed by the retention in CPR 54 of the requirement that an application to bring judicial review proceedings must be made promptly. The existence of factual disputes was not a reason for an exception to the exclusivity principle. Although the need to resolve such disputes did not often arise in judicial review proceedings, when it did so it did not create any particular conceptual or procedural problems. The permission stage gave the court full control of the proceedings and it could give any necessary directions for the attendance of witnesses and cross-examination under CPR 8.6(2) and (3): R (on the application of G) v Ealing London Borough Council (No 2) [2002] EWHC 250 (Admin); [2002] MHLR 140 applied.
The exclusivity principle applied to the instant case. The service of a breach of condition notice was a public law act. There was strong public interest in its validity, if in issue, being established promptly, both because of its significance to the planning of the area and because it turned merely unlawful acts into criminal conduct. It was an archetypal example of a public law action and did not come within the categories that required a more flexible approach. Public action did not lose its “public” character merely because it involved, as most public action did, interference with private rights and freedoms. It was only where there was an overlap with private law principles, such as contract or tort, that procedural exclusivity might become difficult to maintain.
Although a breach of condition notice could be challenged by way of a defence to a prosecution for non-compliance, that exception to the exclusivity principle did not assist the respondent on the facts of the case: Dilieto v Ealing London Borough Council [1998] 2 PLR 98 distinguished. The appellants were under no duty to bring a prosecution but might decide to rest on the effect of the breach of condition notice. They could take the view that the blight so created for the owner was sufficient sanction without the need for a criminal penalty and could reasonably prefer to avoid the factual disputes that might arise if the notice were challenged by way of defence to criminal proceedings. The appellants were not obliged to give the respondent a platform on which to challenge the validity of their action.
Nor was the court under any duty to offer the respondent a route out of the procedural limbo in which it found itself by reason of the risk that any judicial review proceedings that it might bring would fail as being brought outside the normal time limit. The 10-year rule was a concession to illegality not a reward for endurance. The court owed no duty to assist the lawbreaker to bring himself within it. Once a breach of condition notice was served, the recipient, if it wished to regularise its planning position, had a choice of seeking judicial review promptly to challenge the validity of the notice or to apply to the authority under section 73 of the 1990 Act to discharge the condition. If it did neither, it had to accept the consequent uncertainty affecting its property and the limbo would be entirely of its own making.
Peter Wadsley and Sarah Knapton (instructed by Veale Wasbrough Vizards, of Bristol) appeared for the appellants; James Findlay QC and Emma Dring (instructed by Battens Solicitors, of Yeovil) appeared for the respondent.
Sally Dobson, barrister
