Cases - Thurrock BC v Secretary of State

Record details

Name

Thurrock BC v Secretary of State

Date

[2002]

Citation

EWCA Civ 226

Legislation

Town and Country Planning Act 1990

Keywords

Planning control - planning enforcement

Summary

This case establishes that immunity under the 10-year rule only arises if enforcement action could have been taken at any time during the 10 years. In other words, the breach must continue throughout the 10-year period.

An enforcement notice was served in 1999 in respect of the unauthorised use of land as an airfield. A Planning Inspector quashed the notice on the ground that the airfield use had begun more than 10 years ago. The Court of Appeal held that the inspector had made an error of law. It is not sufficient that the use commenced more than 10 years before. The landowner must demonstrate, on the balance of probabilities, that the use has continued throughout the 10 years so that enforcement action could have been taken at any time. The concept of abandonment that the inspector had applied is applicable to established use rights and could only become relevant once immunity had become established after 10 years of continuing breach (when a lawful development certificate can be sought). The Court accepted that an enforcement notice can be issued if the unlawful activity has temporarily ceased 'because it is the weekend or the factory's summer holiday, for instance'. But once the activity has permanently ceased, no enforcement action can be taken and so the use cannot gain immunity.

One of the issues in the case was the alleged right of the landowner under Class E to erect an aircraft hangar on his very large rear garden. Although not deciding the point, Lord Justice Schiemann stated that 'a conclusion that an aircraft hangar is required for the purpose of a dwellinghouse as such is surprising'. Furthermore, he pointed out that Class E would not authorise the erection of a building used for commercial purposes even though it was also required for a purpose incidental to the enjoyment of the dwellinghouse as such.