Courts refuse to help law breakers use loophole

Posted 24/01/2011

Councils get go ahead to use powerful weapon in planning permission enforcement

Individuals who try to bend the rules on planning permission have been dealt a blow following the outcome of a recent case in the Court of Appeal.

The case of Trim v North Dorset District Council highlights the need to take immediate action when a planning authority seeks to enforce conditions in a planning permission, even if the breach complained of started more than ten years earlier. Failure to do so could mean that the property is blighted, with a breach of condition notice hanging over it.

Mr Trim lived in a house that had been built without proper planning permission. In 1996 an enforcement notice was served by the local council, and eventually, in 1997, retrospective planning permission was granted on condition that the house was used solely in connection with equestrian facilities.

Eleven years later, North Dorset District Council considered that this condition had not been complied with and in 2008 served a breach of condition notice on Mr Trim, who then invited the Council to prosecute him for the breach – but the Council refused to do so.

Because the breach of condition notice would be noticed by any prospective purchaser of the property, making his house less valuable, Mr Trim felt he had to do something even if the Council refused to prosecute him. As a result, in December 2009 he applied to the Court for a declaration that the breach of condition notice had been served more than ten years after the alleged breach, that the Council was therefore barred by lapse of time from taking enforcement action, and that he was not obliged to comply with it.

The Council asked the Court to strike out the claim on the ground that it was an abuse of the legal process because public law actions or decisions can only be challenged by a procedure known as judicial review. The High Court rejected the Council’s claim, but the Court of Appeal disagreed with much of the reasoning of the High Court judge and found in favour of the Council.

The Courts, said Lord Justice Cornwarth, have no duty to assist the law-breaker to bring himself within the law. Once the Council had served the breach of condition notice Mr Trim should have taken the correct steps and, said the judge, “if he did not do so, he had to accept the subsequent uncertainty affecting his property. The limbo was entirely of his own making.”

Ashtons Legal planning law expert Bob McGeady says: “The important point about this case is that Mr Trim was slow to react to the breach of condition notice and the courts refused to help him out. An application for judicial review must be made promptly, and at the latest within three months of the act or decision to be reviewed.

“Mr Trim’s delay meant that the correct course of action was barred and the Court of Appeal refused to allow him to try a different approach. The judgement concerns anyone whose property might not be strictly compliant with the planning rules because it means that, even after the time for enforcing planning regulations has passed, local authorities have a powerful weapon at their disposal and, if they use that weapon, failure to take advice immediately could result in your property being blighted. ”