Planning conditions often have words at the end of the condition which seek to allow the planning authority some control over the future regulation of the terms of the condition.

Examples include:  

"No trading from the retail shop shall be carried out after 21:00 each day unless otherwise agreed with the local planning authority"

"No use of the floodlighting columns shall take place after 21:00 hours or before 08:00 hours on any day without the prior written consent of the local planning authority".

Tailpieces of this nature were considered in the case of R (on the application of Warley) v Wealden District Council.

The intention of these words was to allow the authority to relax the condition and to allow a degree of flexibility without the need for a formal planning application to amend the permission.

However the court found that it was unlawful, because it made uncertain what had been granted by the permission and would potentially allow development to take place which had not been permitted. The development which could be undertaken had not been assessed or considered, and the tailpiece sidestepped the statutory process for varying conditions.

It was considered that the public was entitled to know from public documents the development for which permission had been granted. The tailpiece left that uncertain and did not indicate who was to determine any variation nor the criteria on which the decision was to be based.

The judge held that it was possible to delete the offending words from the condition in the Wealden case, leaving the condition and the permission in place. However if it had not been possible to do so, the whole permission would fail.

Does prosecution for breach of an enforcement notice amount to abuse of process?

The High Court has held in R (Altunkaynak) v Northamptonshire Magistrates' Court that it is not an abuse of process to prosecute for a breach of an enforcement notice.

The local planning authority prosecuted Mr A for breach of enforcement notices. Mr A had been advised by his planning agent and architect to make a planning application for permission for his hot food takeaway, rather than appeal the enforcement notices.

Mr A argued before the Magistrates' Court that this was one of the rare cases contemplated by Staffordshire County Council v Challinor (2007), because the prosecution was an abuse of process. This was on the basis that Mr A had a "cast iron" ground of appeal against the notices and that he had an explanation as to why no appeal had in fact been lodged.

In the Staffordshire case, the court found that if reliance was to be placed on a certificate of lawfulness as a ground of challenge to an enforcement notice, it had to be by way of an appeal under the Planning Act. However, it was possible to envisage some rare cases in which this might work as an injustice. This would be confined to a case where there was a defect in the notice which could be established and the landowner had an understandable reason for omitting to pursue an enforcement appeal.

The magistrates found that Mr A did not have a ground of appeal which was certain to succeed and did not have a good enough reason for not lodging an appeal.

Mr A challenged that decision by judicial review. The High Court found that Mr A did indeed have a cast iron ground for an appeal but that his failure to appeal was not accidental and not based on a misunderstanding, but a decision not to act based on the advice of a planning professional.

There was no injustice in the prosecution.

More on Town or Village Greens (TVG)

One of the criteria to be satisfied by an applicant for registration of a TVG is that the use of the land was "as of right". There must have been no permission given to the inhabitants to use the land; rather, their use was of a nature that they acted as if they did have such rights. In other words was the use "by right" or "as if of right" (R (Beresford) v Sunderland City Council (2004))

The point was heard by the High Court in R (Barkas) v North Yorkshire County Council.

A recreation ground was set out by a local authority on a council estate under the Housing Act 1936. The court found that the authority had the legislative power to lay out the recreation ground and if it did so the public had a legal right to use it. It would be a nonsense to say that the public using the recreation ground laid out in such circumstances, were trespassers.

It appears therefore that the courts will give a reasonably generous interpretation of use "by right", and this should be a welcome decision to local authority owners of recreational sites and prospective developers of such sites.

Stop press: Two decisions have been handed down in the Court of Appeal dealing with applications for the removal of land previously registered as a TVG.