First Secretary of State v Arun District Council


The Message

An enforcement notice served by a local authority in respect of a breach of planning was held to be invalid as it was served out of time.

The Case

This case raises an important issue relating to the statutory time limit for enforcement by a local planning authority of a breach of planning control.

A planning permission was granted by Arun District Council for an extension to a house to form extra accommodation. The permission was subject to a number of conditions, a key one being that the extension should be used for purposes incidental to the house as a single dwelling house and should at no time be occupied or disposed of as separate residential accommodation.

After some years, it came to the Council’s attention that the extension was being used as a “separate” house in breach of the condition in the permission and it served an enforcement notice in April 2004 on Karen Brown, the owner of the house. Brown appealed against the notice.

A planning inspector appointed by the Secretary of State upheld Brown’s appeal. The inspector found that the breach occurred in 1996 and the enforcement notice was not valid as it had not been served within the relevant statutory time limit. The High Court, however, disagreed with the inspector and the Secretary of State appealed the High Court’s decision.

The issue for the Court of Appeal was where there was a failure to comply with a condition in a planning permission restricting the change of use to use as a single dwelling house, did the local authority have 4 years from the date of the breach or instead 10 years in which to enforce the breach?

Under the Town and Country Planning Act 1990, the making of any material change in the use of land constitutes “development” and development without the required planning permission is a breach of planning control. Equally, a failure to comply with a condition or limitation subject to which the permission is granted is a planning breach.

The time limit for the local authority to enforce the breach depends on whether the breach is development without permission or non-compliance with a condition in the permission. Where the breach is the change of use to use as a single dwelling house, the time limit is 4 years from the date of the breach. With certain exceptions, in the case of other planning breaches, the time limit is 10 years from the breach. 

The Court held that the breach was enforceable for a period of 4 years only after the breach.

The change of use (in breach of the condition in the permission) was a breach of planning control comprising the change of use from residential use ancillary to the main house to use as a separate single dwelling house. That breach had a 4 year time limit for enforcement and the Council was, therefore, out of time in serving the enforcement notice 8 years after the breach.