Enforcement notices — Planning unit — Land used by travelling showmen — Alleged breach of planning control — Several occupiers on same site — Whether one enforcement notice can be issued in respect of land divided into small plots for occupation by caravans valid
The appellants in these two appeals are
travelling showmen and their families who have placed their caravans,
fairground rides and equipment, machinery and vehicles upon former agricultural
land in the green belt in Surrey. In each case four enforcement notices were
issued under section 87 of the Town and Country Planning Act 1971 by the
respective local planning authority alleging a breach of planning control by
the development of the site without planning permission.
On appeal from the decision of Sir Graham
Eyre QC, sitting as a deputy judge of the Queen’s Bench Division, the
appellants contended that an enforcement notice issued in respect of a piece of
land which is divided into small plots for occupation by caravans is not valid
and that section 87 of the 1971 Act requires a separate notice to be issued in
respect of each plot of land. In the first appeal there was a 17-acre site
partially divided into separate plots registered at the Land Registry and with
a common access road and other areas, and the notice required the removal of
all the caravans and equipment and the return of the land to agriculture. In
the second appeal the plot boundaries were less clear but the same principles
arose. It was contended that on a strict interpretation of section 87 an
enforcement notice had to be issued in relation to the ‘owner and the occupier
of the land’, a reference to the land of each occupier; and second, it could
not have been the intention of Parliament that an enforcement notice could
cover multiple occupations.
The appeals were dismissed.
In the court below the deputy judge
considered the appropriateness of taking a large unit when there were
individual plots in separate ownerships, and concluded that a planning
authority took a larger site at its peril and that it would generally be easier
to establish a material change of use on a smaller site. He was entitled to
accept the views of the inspectors in these two appeals that each site had
undergone a fundamental change as a result of the change of use: see p 114A.
A local planning authority was entitled
to issue an enforcement notice in respect of a site consisting of several
owners and occupiers and section 87 of the 1971 Act did not require that an
enforcement notice was required to be issued in respect of each planning unit.
Although such a practice was usual, the present cases have unusual if not
exceptional features and characteristics in common which justify the less usual
procedure adopted, but which do not appear to have arisen before and are
therefore unlikely to arise frequently: see p 114D-F.
Burdle v Secretary of State for the
Environment [1972] 1 WLR 1207; [1972] 3 All ER 240; (1972) 70 LGR 511; 24
P&CR 174; [1972] EGD 678; 223 EG 1597, DC
Johnston v Secretary of State for the
Environment (1974) 28 P&CR 424, CA
Pioneer Aggregates (UK) Ltd v Secretary of State for
the Environment [1985] AC 132; [1984] 3 WLR 32; [1984] 2 All ER 358; (1984)
82 LGR 488; 48 P&CR 95; [1984] EGD 1094; 272 EG 425, [1984] 2 EGLR 183;
[1984] JPL 651, HL
Appeal against decisions of Sir Graham
Eyre QC
These were appeals from decisions of Sir
Graham Eyre QC, sitting as a deputy judge of the Queen’s Bench Division, who
had dismissed appeals under section 246 of the Town and Country Planning Act
1971 against two decisions of the first respondent, the Secretary of State for
the Environment, by his inspector, who had dismissed appeals against a number
of enforcement notices issued by the second respondents in the first appeal,
Reigate and Banstead Borough Council, and by the second respondents in the
second appeal, Tandridge District Council.
by Clinton Davis & Co) appeared for the appellants.
Solicitor) appeared for the first respondent, the Secretary of State for the
Environment, in each appeal.
appeal did not appear and were not represented.
BUTLER-SLOSS LJ: These two appeals raise the
same issue and were heard together by Sir Graham Eyre QC, sitting as a deputy
judge of the Queen’s Bench Division, on January 21 1988. In each case the
appellants are travelling showmen and their families who have placed their
caravans, fairground rides and equipment, machinery and vehicles upon sites
formerly agricultural in use and found by the inspector to be in green belt
areas of Surrey. In each case, four enforcement notices were issued under
section 87(1) of the Town and Country Planning Act 1971 by the local planning
authority on the basis that there had been a breach of planning control by the
development of each site without planning permission. On appeal by the
appellants to the Secretary of State for the Environment, different inspectors
came to the same conclusion and dismissed each appeal. The deputy judge
dismissed both appeals from the inspectors.
Before this court one issue arises. Is
one enforcement notice issued in respect of a piece of land which is divided
into small plots for occupation by caravans a valid notice under section
87? Or does the section require a
separate notice for the owner and occupier of each plot of land?
In the first appeal, which I shall call
the ‘Rawlins’ case, there was a 17-acre field situated in mainly agricultural
and woodland countryside. The inspector found that the site had been developed
as a whole as a base mainly in the winter months for travelling showmen and
their families, some of whom remained there while the others went to
fairgrounds during the summer months. Each enforcement notice related to the
whole site and the breaches alleged included the use of the land as a caravan
site, the construction of a road, the construction of hardstandings on the
land, the use of the land for the parking, storage, maintenance and repair of
motor vehicles, fairground rides, plant, equipment and machinery. Each
enforcement notice required removal and that the land be left in a condition
fit for agricultural/forestry purposes. In the decision letter, at para 12, set
out by the deputy judge in his judgment, the inspector considered the point at
issue, that the enforcement notices were not directed at the correct planning
units.
It is accepted that normally it is not
appropriate to go beyond one ownership, but this is not a normal case in that:
(i)
The site was in common ownership until individual plots were sold during
1986.
(ii)
The common parts of the site — certainly the roadway and probably the
bunding — remain in that single ownership of Mrs Reid. The whole set up on site
would be unusable without the roadway.
(iii)
The whole development has plainly been thought out and carried through
as a concerted whole with a single common purpose.
(iv)
The area was not in fact physically sub-divided until November 1986.
Even now many parts of the site remain undivided.
The judge pointed out the significance of
November 1986 as being the date of issue and service of the last enforcement
notice. The inspector visited the site and was able to see the way in which the
subdivision occurred. We were told that there were individual plots owned by
separate individuals or families, registered in the Land Registry and
separately rated.
The second appeal, which I shall call the
‘Gregory’ case, concerned a separate piece of land in a different part of
Surrey, but the appellants are also travelling showmen in mobile homes and the
facts are very similar. Four enforcement notices were issued, each relating to
the entire site as one unit. According to the inspector, on his site visit the
limits of every plot were not clearly defined on the ground. The same issue
therefore arises.
Mr Payton’s submission is that the issue
is a matter of the proper interpretation of section 87(1) and (5). Part V of
the 1971 Act relates to the enforcement of planning control under the Act.
Section 87(1) deals with the power to issue an enforcement notice:
Where it appears to the local planning
authority that there has been a breach of planning control after the end of
1963, then, subject to the following provisions of this section, the authority,
if they consider it expedient to do so having regard to the provisions of the
development plan and to any other material considerations, may issue a notice
requiring the breach to be remedied and serve copies of the notice in
accordance with subsection (5) of this section.
By subsection (3) there is a breach of
planning control if development has been carried out without the grant of the
appropriate planning permission. Subsection (5) sets out who is to be served:
A copy of an enforcement notice shall be
served, not later than 28 days after the date of its issue and not later than
28 days before the date specified in the notice as the date on which it is to
take effect —
(a) on the owner and on the occupier of the land to which it
relates; and
(b) on any other person having an interest in that land, being an
interest which in the opinion of the authority is materially affected by the
notice.
Mr Payton argues, first, that as a matter
of strict interpretation the words ‘owner and . . . occupier of the land’ refer
to the piece of land of which each appellant is owner and occupier and cannot
refer to the large area occupied by the group of appellants, other than in a
sham arrangement. He prays in aid the words ‘in that land’ in subsection (5)(b)
as showing it must be the individual piece of land and not ‘those lands’. He
accepts, however, that the owner and occupier include, for instance, joint
owners and joint occupiers. He also accepts that any other person having an
interest in that land includes licensees.
In support of his argument that this is a
matter of strict interpretation and that the answer is to be found in section
87 of the Act, Mr Payton drew our attention to the speech of Lord Scarman in Pioneer
Aggregates (UK) Ltd v Secretary of State for the Environment [1985]
AC 132. At pp 140 and 141 he states that planning control is a creature of
statute and provides a comprehensive code into which judges must not introduce
principles or rules derived from private law, unless the code does not cover
the situation. But the problem of what is a planning unit is not covered in the
code. Lord Widgery CJ in Johnston v Secretary of State for the
Environment (1974) 28 P&CR 424 said
a material change is to look at the planning unit concerned.
. . . one must begin by deciding what is
the planning unit.
This is something in which one gets no
assistance from the statute because the learning, such as it is, on the
identification of the planning unit is entirely judge-made law and, as is to be
expected, the rules which have been laid down for guidance are generally not
rigid rules but guidelines or pointers.
Mr Payton urged on us that the expression
‘planning unit’ is a convenient way of identifying the relevant land which
could properly be included in one allegation of a breach of planning control
but not appropriate to extend the relevant land beyond that authorised by the Act.
He said that no one had suggested that a single enforcement notice could
properly be issued and served on all purchasers of, for instance, a development
of a residential estate which would be contrary to the rationale in the few
decisions on what is a planning unit. Bridge J in Burdle v Secretary
of State for the Environment [1972] 1 WLR 1207 set out some broad
categories for the identification of a planning unit and concluded:
It may be a useful working rule to assume
that the unit of occupation is the appropriate planning unit, unless and until
some smaller unit can be recognised as the site of activities which amount to a
separate use both physically and functionally.
None of the previous decisions related to
an aggrieved appellant claiming that too large a unit had been chosen. The
point at issue has not, therefore, previously arisen for decision.
The deputy judge did not accept the
proposition that the matter should be resolved by the construction simply of
section 87 in its context in Part V of the 1971 Act. He adopted the words of
Lord Widgery CJ in the Johnston case at p 427:
In any event, one must remind oneself
that an appeal to this Court is on a point of law only. The question of what is
the proper planning unit is essentially a matter of fact and degree. The
decision of the Secretary of State on it is not a decision which we can upset
here unless it is quite clear that he has disregarded something which he ought
to have regarded or regarded some factor which he ought to have disregarded, or
has otherwise reached a conclusion which no reasonable person in his position
could have reached.
The deputy judge went on to say:
That is the test which I must apply to
this particular decision
— the Rawlins case —
. . . In my judgment, his [the inspector’s]
test of the approach adopted by the planning authority when it issued the
notices was quite impeccable.
I, for my part, cannot fault the deputy
judge in his approach to these appeals, and agree with him that it is not a
matter of pure construction but, as Lord Widgery said: ‘[It] is essentially a
matter of fact and degree’.
Mr Payton advanced two arguments as to
the interpretation of section 87. The first one, which I have already referred
to, dealt with strict construction. The second point, to which I now turn,
relates to the necessity of giving proper effect to the intention of
Parliament. He argues that the consequences of issuing enforcement notices
covering multiple ownerships and occupation in this way are likely to cause
injustice to individual owners and occupiers whose special circumstances may be
overlooked in the general considerations. Since injustice may be caused by this
approach, he argues that Parliament would not have intended notices to be
issued in this way. He does not, however, assert nor
from the procedure adopted by the planning authorities in either of the present
appeals. Nor in these appeals is he concerned about the possibility of a
prosecution under section 89.
The judge considered the appropriateness
of taking a large unit when there were individual plots in separate ownerships
and concluded that a planning authority took the larger site at its peril and
that it would generally be easier to establish a material change of use on a
smaller site. He accepted the views of the inspectors that in these two cases
it was the whole site which had undergone a fundamental change of character as
a result of the change of use. Further, as I have already mentioned, he
considered that the inspection of the site might well be an important feature
of the exercise.
Despite Mr Payton’s concern that to allow
one enforcement notice to be issued and served will deprive individual owners
of plots of an adequate remedy in future planning disputes, I do not see these
appeals as setting aside the existing long-established practice of issuing and
serving enforcement notices on a planning unit, which is, as Lord Widgery CJ
said in the Johnston case at p 427: ‘. . . the area occupied as a single
holding by a single occupier’ — using single occupier in the collective sense
so that it would include two or more joint occupiers.
These two cases have unusual if not
exceptional features and characteristics in common which justify the less usual
procedure adopted, but which do not appear to have arisen before and are
therefore unlikely to arise frequently. No doubt the possibility of causing
injustice by issuing one enforcement notice where the site is divided into
different ownerships would be in the minds of the planning authorities when
exercising their powers under section 87. If a recipient of a notice was in the
opinion of the inspector likely to be prejudiced, the inspector would have the
power to vary the notice, split up the notice or, indeed, to exclude the land
of that occupier from the enforcement notice altogether.
In my view, on the facts and in the
circumstances of these two appeals the inspectors were entitled to accept the
enforcement notices. Consequently, neither the deputy judge nor this court has
any ground upon which to set aside these decisions. I would dismiss these
appeals.
McCOWAN LJ: Mr Payton asked this court to say that an
enforcement notice cannot relate to an area greater than an individual
ownership or occupation. At the same time, he placed great reliance on the
decision of the Divisional Court in Johnston v Secretary of State for
the Environment (1974) 28 P&CR 424. If, however, his proposition were a
sound one, the Divisional Court could have decided the case on that simple
ground. In fact, far from so deciding, the court held that, in the words of
Lord Widgery CJ:
The question of what is the proper
planning unit is essentially a matter of fact and degree.
Mr Payton’s proposition was, he said,
based on the words of section 87(5) of the Town and Country Planning Act 1971.
This reads, in so far as it is relevant:
A copy of an enforcement notice shall be
served, . . .
(a) on the owner and on the occupier of the land to which it
relates; and
(b) on any other person having an interest in that land, being an
interest which in the opinion of the authority is materially affected by the
notice.
Mr Payton conceded that if (a)
stood on its own it would be permissible to
relates’, the land there referred to being the entire site in question and not
just a part in individual ownership or occupation. However, he argued that when
one goes on to consider (b), ‘in that land’ cannot be read as ‘in those
lands’. Hence, he submitted, the effect of (b) is to restrict (a)
to ‘the owner and . . . the occupier of the land’. Assuming that he is right
that ‘in that land’ cannot be read as ‘in those lands’, which I doubt, I see no
problem in reading (b) as ‘any other person having an interest in that
land or any part thereof’. Mr Payton was driven to concede that that was a
possible interpretation. Accordingly, I see no force in the point of
interpretation which was the foundation of his argument.
I agree that the appeals should be
dismissed.
NEILL LJ: I also agree.
In first
appeal, appeals dismissed. The appellants Queenie Cole and David Edward Rowe to
pay one fourteenth of first respondent’s costs. No order for costs against
legally aided appellants. Legal aid taxation.
In second
appeal, appeals dismissed. Gregory to pay one tenth of first respondent’s costs
up to October 16 1989. The appellants Messham, Matthews, Birch and Irvin to pay
one tenth of first respondent’s costs. No order for costs against legally aided
appellants. Legal aid taxation.
