Established use — Temporary planning permission — Whether grant of planning permission determines established use — Whether appellants entitled to established use certificate
Use of the
subject land for repair, maintenance and storage of motor vehicles began
without planning permission after July 1 1948 but before 1964. In 1970 or 1971
a prefabricated building was erected on the land and used as a garage without
planning permission. The appellants acquired the land in November 1981 and made
a permanent structure around the building without planning permission. In April
1987 the appellants were granted planning permission for the continued use of
land, subject to conditions, inter alia, that: the use of land be
discontinued before April 30 1989; the building removed; and the land restored
to its former condition. The appellants’ application for an established use
certificate, under what is now section 191(a) of the Town and Country Planning
Act 1990, was dismissed on appeal by the Secretary of State for the
Environment. The appellants appealed the decision of Mr Gerald Moriarty QC,
sitting as a deputy judge of the Queens’ Bench Division, dismissing their
application under section 288 of the 1990 Act challenging the Secretary of
State’s decision.
Immediately
before the permission granted in April 1987, the use of the land for the
repair, maintenance and storage of motor vehicles was an established use within
section 191(a) of the 1990 Act. Instead of applying for an established use
certificate at that date, the appellants applied for planning permission. The
effect of the permission had been to render lawful what had been unlawful and
to bring the use referred to in section 191(a) to an end. The established use
no longer continued. The appellants’ entitlement to an established use
certificate ceased: see p53F. The decision in Bolivian & General Tin
Trust Ltd v Secretary of State for the Environment [1972] 1 WLR 1481
was upheld and affirmed: see p54.
to in the judgments
Bolivian
& General Tin Trust Ltd v Secretary of State
for the Environment [1972] 1 WLR 1481; [1972] 3 All ER 918; (1972) 71 LGR
39; 24 P&CR 323
Appeal against
decision of Mr Gerald Moriarty QC
This was an
appeal by Alan Charles Bailey and Dorothy Mary Bailey against the decision of
Mr Gerald Moriarty QC, sitting as a deputy judge of the Queen’s Bench Division,
(February 17 1993) in which he dismissed their application under section 288 of
the Town and Country Planning Act 1990 to quash the decision of the Secretary
of State for the Environment dismissing their appeal against the refusal of the
second respondents, Sedgemoor District Council, to grant an established use
certificate.
(instructed by Hawks & Scofield, of Burnham-on-Sea) appeared for the
appellants, Alan Charles Bailey and Dorothy Mary Bailey.
(instructed by the Treasury Solicitor) appeared for the first respondent, the
Secretary of State for the Environment.
respondents, Sedgemoor District Council, did not appear and were not represented.
following judgments were delivered.
NOURSE LJ: This appeal raises a short point of planning law (established use
certificates) on which the appellants seek to have the decision of Bean J in Bolivian
& General Tin Trust Ltd v Secretary of State for the Environment
[1972] 1 WLR 1481 overruled or distinguished.
The appellants
are Mr Alan Charles Bailey and his wife Mrs Dorothy Mary Bailey. As the owners
of land and buildings at Tamarisk, Withy Road, East Huntspill, Highbridge,
Somerset, they applied to the second respondents, Sedgemoor District Council,
for an established use certificate (EUC) in respect of ‘use of the land and
buildings … for repair, maintenance and storage of motor vehicles including
parking of customers’ vehicles or vehicles awaiting repair’. The application
was refused. An appeal against the refusal was dismissed by the Secretary of
State for the Environment on the ground that an earlier temporary permission
had brought the principle of the Bolivian Tin case into play, so that an
established use of the land could no longer be relied on. The appellants then
challenged the Secretary of State’s decision by an application to the High
Court under section 288 of the Town and Country Planning Act 1990. Their
application came before Mr Gerald Moriarty QC, sitting as a deputy judge of the
Queen’s Bench Division, who dismissed it. The appellants now appeal to this
court.
Although the
point is a short one, the history of the matter is of some length. The use of
the land for the repair, maintenance and storage of motor vehicles was begun
without planning permission after July 1 1948 but before the beginning of 1964.
It has continued ever since. In 1970 or 1971 a prefabricated workshop building
was erected on the land, again without planning permission. A subsequent
application for the retention of the building as a garage and repair shop was
refused by the council in August 1971, but no enforcement action was taken. On
November 6 1981 the land was acquired by the appellants. In 1986 they erected
an outer skin of concrete blocks on new foundations around the original
prefabricated building, the original walls being removed and the original roof
trusses and cladding being replaced over the new walls. Those works were also
carried out without the planning permission that they undoubtedly required.
On January 28
1987 the appellants applied for planning permission for the continued use of
the land for the storage and repair of motor vehicles and the retention of the
workshop building. That application was granted by the council on April 28
1987, subject to conditions, inter alia, providing for the use of the
land to be discontinued, the building removed and the land restored to its
former condition before April 30 1989. On February 28 1989 a further
application was made for planning permission to continue the temporary use on a
permanent basis. That application was refused on April 5 1989 and an
enforcement notice issued on June 27 1989. The appellants then appealed to the
Secretary of State against the enforcement notice and the refusal of planning
permission under sections 174 and 78 respectively of the 1990 Act.
On May 2 1990,
before a public inquiry into those appeals had been held, the appellants made
their application for an EUC under section 191 of the 1990 Act. On August 29
1990 a public inquiry into the appeals under sections 78 and 174 was held. On
October 24 1990 the inspector dismissed the appeals, subject to an extension
from six to 12 months in the period prescribed by the enforcement notice for
the discontinuance of the use and the demolition of the workshop building. No
appeals against the inspector’s decisions were entered with the time allowed by
sections 289 and 288 respectively of the 1990 Act.
Meanwhile the
appellants’ application for an EUC had been refused. They appealed to the
Secretary of State and a public inquiry into that appeal was held on September
17 and 18 1991. On April 15 1992 the Secretary of State dismissed the appeal.
The appellants’ application under section 228 was dismissed by Mr Moriarty on
February 17 1993. On May 14 1993 the council issued summonses before the
justices in respect of the appellants’ failure to comply with the enforcement
notice. The appellants
inspector’s decision upholding the enforcement notice. On December 3 1993 that
application was dismissed by Mr David Widdicombe QC, sitting as a deputy judge
of the Queen’s Bench Division. The hearing of the summonses before the justices
has been adjourned pending the outcome of these proceedings.
Of these
events it is necessary to emphasise, first, that the use of the land for the
repair, maintenance and storage of motor vehicles was begun before the
beginning of 1964 without planning permission and has continued ever since;
and, second, that temporary permission for that use was subsequently granted.
The statutory
provisions material to a decision of this appeal are those of the Town and
Country Planning Act 1990 before it was amended by the Planning and
Compensation Act 1991. EUCs are dealt with in sections 191 and following of the
Act. So far as material, section 191 provides:
For the
purposes of this Part a use of land is established if–
(a) it was begun before the beginning of 1964
without planning permission and has continued since the end of 1963; …
Section 192(1)
enables a person having an interest in land who claims that a particular use of
it has become established to apply to the local planning authority for a
certificate to that effect. Section 192(4) provides:
An
established use certificate shall, as respects any matters stated in it, be
conclusive for the purposes of an appeal to the Secretary of State against an
enforcement notice …
These
provisions give to an established use of land an immunity from enforcement
action under section 172 of the 1990 Act. They do not, however, go further than
that. The use remains in breach of planning control and is, as such, unlawful.
So the ‘established’ use of land referred to in section 191 is necessarily an
unlawful one.
In the present
case it is agreed that immediately before April 28 1987 the use of the land for
the repair, maintenance and storage of motor vehicles was an established use
within section 191(a). If the appellants, instead of applying for planning
permission, had applied for an EUC, the council would have been bound to grant
it. However, the effect of the planning permission was to render that which had
been unlawful lawful and thus to bring the use referred to in section 191(a) to
an end. In other words, the established use no longer continued, section 191(a)
ceased to apply and with it ceased the appellants’ entitlement to the grant of
an EUC.
This simple
view of the effect of section 191(a) does not require any additional words to
be read into it. However, in the Bolivian Tin case Bean J accepted the
Secretary of State’s argument that section 17(1)(a) of the Town and Country
Planning Act 1968, a provision having precisely the same effect as section
191(a) of the 1990 Act, should be read as if it were worded ‘it was begun
before the beginning of 1964 without planning permission in
1963′. By reading in the words in square brackets, the judge gave the same
effect to the predecessor provision as I would give to section 191(a). It may
well be that Bean J’s approach is preferable to my own. Either way the result
is the same and the consequential anomalies suggested by Mr Jonathan Clay, for
the appellants, if such they be, cannot prevail over the clear effect of the
provision.
I turn to the
appellants’ alternative submission, which is that the facts of the present case
are distinguishable from those of the Bolivian Tin case on the ground
that there the use had never enjoyed immunity from enforcement action and there
had never been a time when the applicants would have been entitled to the grant
of an EUC. As to that submission, I gratefully adopt the words of Mr Moriarty
in the court below:
But in my
judgment, whether it be different from the Bolivian Tin case or not, the
significance of the distinction evaporates when one seeks to apply the words of
section 191(a). Reading those words in the way in which Bean J held that the
words of the predecessor section should be read, it seems to me to matter not
that at some stage a particular use, a contravening use, had acquired immunity
and become entitled to an established use certificate if, before the
application is made for the certificate, that use has ceased to be a
contravening use because it is given a temporary or otherwise limited planning
permission or, indeed, any planning permission. If the use ceases to be a
contravening use it seems to me that the circumstances of the case would not
allow the grant of an established use certificate.
For these
reasons, I am in no doubt that the decision of the learned deputy judge was correct
and ought to be affirmed. That makes it unnecessary to consider a further
ground for affirming his decision which has been raised by way of a
respondent’s notice. I would dismiss the appeal.
HENRY LJ: I agree.
POTTS J: I also agree.
Appeal
dismissed with costs.
