Ellis v Secretary of State for Communities & Local Government & Anor

Ellis v Secretary of State for Communities & Local Government & Anor

A CLEUD cannot be granted unless the breach of condition is subsisting at the date of the application, regardless of whether immunity from enforcement action was previously acquired. The Inspector did not err in law in refusing the CLEUD or in her application of local plan policy regarding the removal of the occupancy condition.

Parties
Claimant: Peter Ellis; 1st Defendant: Secretary of State for Communities and Local Government; 2nd Defendant: Chiltern District Council
Jurisdiction
England and Wales
Judgment Date
31 March 2009
Procedural Posture
Judicial Review (planning) / Judgment on Application Under Section 288 of the Town and Country Planning Act 1990
Outcome
Application refused
Legal Topics
Certificate of Lawfulness of Existing Use or Development (cleud), Breach of Planning Condition, Immunity From Enforcement, Planning Permission, Interpretation of Planning Legislation
Planning Law Administrative Law Certificate of Lawfulness of Existing Use or Development (cleud) Breach of Planning Condition Immunity From Enforcement Planning Permission Interpretation of Planning Legislation

Case Brief

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Parties

Peter Ellis

Claimant

Secretary of State for Communities and Local Government

1st Defendant

Chiltern District Council

2nd Defendant

Procedural Posture

Judicial Review (planning) / Judgment on Application Under Section 288 of the Town and Country Planning Act 1990

Legal Issues

  1. 1 Whether a CLEUD can be granted where the breach of condition is not subsisting at the date of application
  2. 2 Whether immunity from enforcement action for breach of condition persists after cessation of breach
  3. 3 Whether the Inspector erred in law in applying local plan policy requiring a marketing exercise for removal of occupancy condition

Ratio Decidendi

A CLEUD cannot be granted unless the breach of condition is subsisting at the date of the application, regardless of whether immunity from enforcement action was previously acquired. The Inspector did not err in law in refusing the CLEUD or in her application of local plan policy regarding the removal of the occupancy condition.

Court Disposition

Application refused

Orders

  • The application by the Claimant is refused.