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Ellis v Secretary of State for Communities & Local Government and Chiltern DC [2009] EWHC 634 (Admin)

DATE: 01 Apr 2009

The High Court has held that an application for a certificate of lawfulness in respect of a breach of an agricultural occupancy condition must fail if the breach is not subsisting at the date of the application, even where a previous breach of the same condition had acquired immunity from enforcement action pursuant to the Town and Country Planning Act 1968 and subsequent legislation.

The Court (Rabinder Singh QC, sitting as a Deputy High Court Judge) concluded that the decision in Nicholson v Secretary of State (1998) 76 P&CR 191 was not directly on point, as that case did not concern a breach that had previously acquired immunity from enforcement action. However, the reasoning in that case (that a breach of condition could cease and a fresh breach subsequently begin, and that the breach in respect of which the certificate was sought had to subsist at the date of the application for it) did apply. The Judge rejected the Claimant's argument that once a breach of condition had acquired immunity from enforcement action then, like an immune use of land, the breach of condition could only lose its immunity by reason of a further material change of use, abandonment or change in the planning unit.

Robert Walton appeared at the public inquiry for Chiltern DC, whose case was accepted by the Inspector and upheld by the Judge.