Planning condition enforceable in spite of PINS letter asserting it was “erroneous”
Borderlands Fencing sentenced for breach of conditions attached to a planning permission by DJ Robinson sitting in the East Hampshire Magistrates Court on 31 January 2023
On 8 October 2021 a planning inspector granted permission for activities related to fencing limited by a condition providing that the height of any material stacked on site should not exceed 1.8 metres. On 2 February 2022 a breach of condition notice was issued by Fareham Borough Council and on four subsequent occasions Borderland fencing breached its terms. The Defendant had pleaded guilty to breaching two of three conditions at an earlier hearing. The issue remaining for DJ Robinson was whether condition 4 was valid and enforceable, and if so whether the decision to prosecute it was an abuse.
DJ Robinson held that, the conditions having been imposed on a permission granted by a Planning Inspector pursuant to section 177(1) of the 1990 Planning Act following a Planning Inquiry, section 284(3) of that Act precluded any challenge save through the statutory route. The Defendant had made no such challenge. The conditions were an inseparable part of planning permission and condition 4 could not be challenged. Even were that not the case, as the Defendant contended, it was for the Planning Inspector to judge all the issues. A district judge sitting in the Magistrates Court could not hear all the evidence and any validity challenge would be limited to Wednesbury grounds. The Inspector had justified the imposition of the condition in broad terms to be reasonable because the alternative would be worse for residents. It would involve stacking materials higher and more use of the site for storage. Whatever test applied, irrationality or the test set out in the Framework for the imposition of conditions, the Inspector was entitled to impose the height restriction and determine geographical spread as appropriate.
In relation to the application to stay proceedings as an abuse, the Planning Inspectorate had written (after the end of the statutory appeal period) stating the condition to be erroneous and purporting to uphold a “complaint” made in a letter written on behalf of the Defendant. No statutory appeal was lodged. The Planning Inspectorate had failed to acknowledge or respond to a letter from the prosecutor querying the basis for the letter and whether the Planning Inspector himself had been consulted. The letter stated that it could give no clarification of the condition and that the Inspector’s decision was a legal document. DJ Robinson found no abuse. The Planning Inspector made a decision to impose the condition in a legal document. The Prosecutor was entitled to consider it and their decision was that the condition was valid and could be prosecuted. They acted in good faith. Prosecuting did not bring the system into disrepute.
Condition 4 was valid and enforceable, and the prosecution was not stayed. Borderlands was convicted and fined £5,600 with costs of £10,840. The total of £16,621 including £181 surcharge payable in 28 days.
David Lintott acted for the Local Planning Authority in the Inquiry. Scott Stemp acted for the Defendant. Cornerstone Barristers regularly acts for both Local Planning Authorities and Developers in a wide range of planning matters. For more information please contact 020 7242 4986 or email clerks@cornerstonebarristers.com.
