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Defined parts of the land and breaches of planning conditions

The Court of Appeal has confirmed the approach taken in St Anselm to the breach of conditions, writes George Mackenzie.

In Royale Parks Ltd v Secretary of State for Housing, Communities and Local Government & Anor [2021] EWCA Civ 1101 the Court of Appeal has confirmed that the approach (to breaches of planning conditions on part of an area of land that benefits from planning permission) taken by Sullivan J (as he was) in St Anselm v First Secretary of State [2003] EWHC 1592 (Admin) was correct, notwithstanding the reservations expressed in that judgment by Sullivan J. 

Royale Parks concerned a 15-unit caravan site with planning permission enabling the caravans to be used for holiday purposes. A condition secured the holiday use of the caravans and prohibited the use of the caravans for residential purposes. In breach of that condition, four of the caravans on the site had been used for permanent residential accommodation for over 10 years and had established immunity from enforcement. The local planning authority had issued LDCs confirming that those four caravans, together with a small amount of curtilage surrounding them, could be used for permanent residential accommodation. 

The site owner applied for an LDC which sought to certify that the site as a whole could be used for caravans in a permanent residential use. The basis of that contention was that since four caravans had already breached the relevant condition on the operative planning permission, and had accrued immunity from enforcement, the condition had been breached for in excess of 10 years and was incapable of being enforced across the Site as a whole as a result. 

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The Court of Appeal rejected this argument and, in particular, rejected the contention that a breach of condition on a “well defined and identifiable” part of the land had to be treated as a breach of that condition across the land as a whole. 

The court held that under the planning code it would have been possible for enforcement and/or breach of condition notices to target physically discrete parts of a site. Accordingly, since the caravans which did not benefit from LDCs comprised “well defined plots” the Inspector had been entitled to conclude as a matter of fact and degree that the caravan site as a whole had not become immune from enforcement just because four caravans/plots on it had accrued immunity.

George Mackenzie is a barrister at Francis Taylor Building. He acted for the Secretary of State and was instructed by Shahnaz Zaidi of GLD.

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