Established use — Enforcement notice varied to delete established use — Whether Mansi principle applies to established use
In February
1988 the appellant local planning authority issued an enforcement notice
relating to land at Peel View, Drumacre Lane, Longton, Preston, alleging a
material change of use. The use from which the land had been changed was a
mixed use of residential, forestry/agricultural, and general dealing use; the
use to which the land was being put was mixed
William Swires, and others, were required to cease using the land for haulage,
industrial sales and storage uses.
The inspector,
who heard the appeals against the enforcement notice, varied the notice such
that the haulage, industrial sales and storage uses had to cease save that on
the western part of the site use for a haulage business with a minor use for
trading was excluded from the notice to the extent that such use was found
established by a previous decision of the Secretary of State for the
Environment in September 1977. The inspector referred to the principle in Mansi
v Elstree Rural District Council (1964) 16 P&CR 153. The appellant
local planning authority contended that, in the light of decided cases since
1964, the principle did not apply to established uses but was limited to uses
existing prior to July 1 1948.
The Mansi
principle has not been affected by the decisions in LTSS Print & Supply
Services Ltd v Hackney London Borough Council [1976] QB 663; Young
v Secretary of State for the Environment [1983] AC 662 and Thrasyvoulou
v Secretary of State for the Environment [1990] 2 PLR 69: see pp 36-37.
A single judge should not be obliged to cast doubt on a principle first stated
25 years ago, followed consistently and standing unchallenged. The principle is
not inconsistent with section 23(9) of the Town and Country Planning Act 1971;
the statutory provision is concerned with reverter to a use, whereas the
principle is concerned with the continuance of a use since before 1964: see pp
37G-38.
to in the judgment
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
Choudhry v Secretary of State for the Environment (1982) 265 EG 384,
[1983] 1 EGLR 160; [1983] JPL 231
Cynon
Valley Borough Council v Secretary of State for
Wales (1986) 85 LGR 36; 53 P&CR 68; [1986] 2 EGLR 191; 280 EG 195;
[1986] JPL 760, CA
Denham
Developments Ltd v Secretary of State for the
Environment (1983) 47 P&CR 589; [1984] JPL 347
Haigh v Secretary of State for the Environment [1983] JPL 40
Lee v Bromley London Borough Council (1982) 45 P&CR 342;
[1983] JPL 778, DC
LTSS
Print & Supply Services Ltd v Hackney London
Borough Council [1976] QB 663; [1976] 2 WLR 253; [1976] 1 All ER 311;
(1975) 74 LGR 210; 31 P&CR 133; 240 EG 711, [1976] 2 EGLR 148, CA
Mansi v Elstree Rural District Council (1964) 62 LGR 172; 16
P&CR 153; [1964] EGD 366; 189 EG 341, DC
Newport v Secretary of State for the Environment (1980) 40 P&CR
261; [1980] JPL 596, DC
North Sea
Land Equipment v Secretary of State for the
Environment [1982] EGD 1210; (1981) 262 EG 668, [1982] 1 EGLR 173; [1982]
JPL 384
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
Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273;
[1990] 2 WLR 1; [1990] 1 All ER 65; (1989) 59 P&CR 326; [1990] 2 PLR 69;
[1990] 1 EGLR 197; [1990] 13 EG 69, HL
Trevors
Warehouses Ltd v Secretary of State for the
Environment (1972) 23 P&CR 215, DC
Young v Secretary of State for the Environment [1983] 2 AC 662;
[1983] 3 WLR 382; [1983] 2 All ER 1105; (1983) 81 LGR 779; 47 P&CR 165;
[1984] EGD 1030; 269 EG 219, [1984] 1 EGLR 166, HL
Appeal under
section 246 of the Town and Country Planning Act 1971
This was an
appeal under section 246 of the Town and Country Planning Act 1971 (section 289
of the Town and Country Planning Act 1990) by the applicant local planning
authority to quash a decision of the first respondent, the Secretary of State
for the Environment, by his inspector, to vary an enforcement notice issued by
the applicants on an appeal by the second respondent, William Swires.
Gilbart (instructed by the solicitor to South Ribble Borough Council) appeared
for the appellants.
(instructed by the Treasury Solicitor) appeared for the first respondent, the
Secretary of State for the Environment.
Sauvain (instructed by Marland Quigley, of Preston) appeared for the second
respondent, William Swires.
following judgment was delivered.
JUDGE J: In this appeal South Ribble Borough Council seeks an order that the
decision of an inspector of the Secretary of State for the Environment to vary
an enforcement notice dated February 15 1988 should be quashed. The enforcement
notice related to land at Peel View, Drumacre Lane, Longton, near Preston in
Lancashire.
The appellants
are the local planning authority for the purposes of section 87 of the Town and
Country Planning Act 1971 as amended. The breach of planning control alleged was
a material change in the use of the land without the grant of planning
permission. The use from which the land had been changed was a mixed use of
residential, forestry/agricultural, haulage and general dealing use. The use to
which the land was being put was mixed residential, haulage, industrial, sales
and storage use. The steps required to remedy the breach were to cease the use
of land for haulage, industrial, sales and storage uses and remove from the
land all items and equipment used in connection with these uses.
The
enforcement notice was issued to William Swires, the second respondent, and
others. It related to the whole planning unit on the site. The notice was one
of 18 notices issued simultaneously. For present purposes it is the only
relevant one. In the course of his decision letter, the inspector determined
the appeals by varying the enforcement notice. The effect was that the site
should be divided into an eastern and western half. On the eastern half the use
of the land for haulage, industrial, sales and storage uses should cease
altogether, and all items and equipment connected with such uses should be
removed. On the western side of the site such uses should also cease, and items
of equipment used in connection with such uses should be removed, save for the
use of a haulage business with a minor use for trading in vehicles to the
extent found established by a previous decision of the Secretary of State on
September 14 1977. From the inspector’s decision letter it followed that the
western half of the site could be used for a haulage business with a minor use
for trading in vehicles. This conclusion is at the heart of the present appeal.
There was, in addition, an uncontroversial extension of time as the period for
necessary compliance.
In the course
of his decision letter, the inspector referred to the principle in Mansi v
Elstree Rural District Council (1964) 16 P&CR 153. That principle is
well established and has been repeatedly recognised. The basic argument for the
appellants was that the decision in Mansi was wrong or has been
misunderstood. Its application since 1964 has represented an inappropriate
departure from the statutory framework laid down by the town and country
planning legislation. Decisions of the Court of Appeal and House of Lords have
now demonstrated the error and, some 25 years after it was first promulgated,
the Mansi principle should be regarded as overruled, at any rate in so
far as it is applied to ‘established use’ immunities. Its application is
limited to uses which existed before the ‘appointed day’, that is July 1 1948,
which are in consequence lawful uses.
In order to do
justice to this argument it will be necessary in due course to refer to the
statutory provisions and decided cases in some detail.
The site at Peel
View has a fairly complicated planning history. Since the appointed day in 1948
it has always been a single planning unit with a mixed use. However, the
history of the eastern and western halves of the site has not been identical.
The narrative which follows is based on the agreed chronology of events
prepared by counsel for the appellants and the second respondent, together with
additional material derived from the agreed bundle.
Between 1949
and 1953 Mr Rayton established a haulage and general dealing business on the
site. In 1959 he applied for planning permission for a bungalow and haulage
business on the whole site, describing the land at that time as ‘agricultural
land not suitable for crops’. In March 1960 the planning application failed. In
1960 Mr Swires purchased the site together with Mr Rayton’s business. From then
until 1968 he carried on haulage and general dealing business. The eastern area
of the site, although used for storage in connection with Mr Swires’ business,
remained a field. In December 1968 Mr Swires stated that the eastern area had
recently been used for the storage of old vehicles, slates, timber and diesel
storage tanks. These would be removed and the land on the eastern side would be
used for no purpose other than agriculture. The remaining part of the site had
been used for the purpose of ‘haulage and repairs’ for the past 16 years. In a
statutory declaration on May 22 1970 Mr Swires declared that the business of
agricultural and haulage contractors had been operated by him since February
1960 ‘continuously and without interruption’ and, to the best of his knowledge
and belief, that business had been in existence for four years or more before
his purchase of the property in 1960.
In 1970 a
garden area was created between the eastern and western accesses to the site.
In 1971 Mr Swires applied for planning permission to widen the existing access.
The application plan put in by him showed the eastern part of the site divided
from the west by an existing fence. In April 1973 he applied to replace
existing derelict piggery buildings with a workshop, garage and store. The plan
defined the area the buildings were to serve and excluded the eastern area. In
November 1973 an amended plan showed the proposed building with a smaller curtilage
than shown on the original application. It also showed the eastern area divided
from the western area by a fence line. Conditional planning permission was
granted on December 17 1973. One of the conditions was that the use of the
proposed building should be limited to a garage and ancillary workshop. The
reason for the condition was that ‘The local authority would not be prepared to
grant permission for the establishment of any other use unconnected with the
haulage business on this site.’ In
addition, the tree planting and screening scheme on the eastern side of the
site was to be implemented.
In the
meantime, during 1968 or 1971, a company known as Lancashire Landscapes Ltd
started to use the eastern part of the appeal site in connection with a landscaping
business. A 10-year lease was taken. Mr Swires imported top soil for the
purpose of the business. Eastern access was used jointly for his haulage and
vehicle dealing business and for the business of Lancashire Landscapes.
Lancashire Landscapes continued to use the eastern part of the site in
connection with their business until 1977. It was then reoccupied by Mr Swires,
who stored up to 100 fire-damaged combine harvesters.
In November
1975 an enforcement notice alleging unauthorised use of the site for a haulage
business was issued. There was a public local inquiry into appeals against the
enforcement notice. On September 14 1977 the Secretary of State produced his
decision letter. The appeal succeeded. The reasons for the decision are
significant. In summary, it was concluded that before 1960 the whole property
was a single planning unit with a mixed use for residential,
acquired the land it continued as a single planning unit, but in lieu of
general dealing uses there was some selling of vehicles. No material change in
the scale of haulage business use or in the use of the planning unit as a whole
had taken place. The mixed uses continued until about 1968 when attempts were
made to restore the eastern portion of the property to some form of
agricultural use. This eventually resulted in the lease to Lancashire
Landscapes Ltd. The company continued to share the hard-standing areas on the
western part of the property. There was no clear division of the planning unit.
At that point the mixed uses of the planning unit were residential,
forestry/agricultural, haulage business use and a minor use in trading in
vehicles. There had been intensification of the haulage business but not sufficient
to change the mixed use of the planning unit and amount to a material change of
use.
By the time of
the inspection (as opposed to the date of the enforcement notice) the view was
taken that the character of the mixed use of the planning unit had reached the
point where the balance was so affected that any further intensification of
haulage business use would amount to development requiring planning permission.
However, as there had been no change of use requiring planning permission since
the end of 1963, the appeal succeeded on what was then section 88(1)(d)
of the 1971 Act.
Shortly before
the decision letter, on August 29 1977, further enforcement notices were issued
which alleged unauthorised storage of vehicles. The whole site was taken as the
planning unit. The alleged unauthorised storage and the material change related
to the eastern half of the site. In April 1978 one notice was withdrawn. The
other was quashed as defective. The view was expressed that the point of
criticism should have been intensification of use.
Between 1977
and 1980 a battle was fought by the second respondent about planning permission
for the retention on the site of a poultry cabin known as ‘building D’.
Eventually, the High Court quashed the decision letter which had dismissed his
appeal against refusal of planning permission. The building is in the eastern
half of the site.
In October
1981 planning permission for the erection of the poultry cabin was granted; it
was subject to a condition that the use of the premises should be ‘restricted
to the use applied for unless the prior consent of the local planning authority
is obtained’. In fact, the building was never used for keeping poultry but was
used for the repair of vehicles.
In September
1983 planning permission was granted for earth mounding and landscape schemes
on the eastern area, and the eastern area of the site was hard surfaced.
Starting a little earlier and continuing until 1985 a number of hauliers used
the whole site. The second respondent carried on haulage business and bought
and sold commercial vehicles, and the entire site was used for haulage and
general dealing purposes. There was then a steady increase in the use of the
site. In October 1987 the poultry cabin (building D) was let to another company
and used for its vehicle repair business.
On February 15
1988 the enforcement notice relevant in these proceedings was issued. Following
a hearing and site inspection the decision letter of the inspector was dated
January 26 1989. The critical findings of fact made by the inspector were as
follows.
(1) There was still a composite use within Bridge
J’s second category in Burdle v Secretary of State for the
Environment [1972] 1 WLR 1207, that is a mixed and composite use over the
whole site. It could not be said that there were two or more physically
separate and distinct areas occupied for substantially different and unrelated
purposes which ought to be considered
was a single planning unit with a mixed use.
(2) The current mixed use of the whole area was
mixed use as a haulage yard for repair and spraying vehicles together with a
smaller but identifiable use for general dealing involving sale and storage of
items other than vehicles. There was also a currently suspended residential
use.
(3) Haulage business and general dealing had
taken place on the site and was an ‘established’ use after July 1 1948 rather
than a ‘lawful’ use predating the appointed date. Before 1964 the planning unit
as a whole had a mixed use which included haulage and general dealing. Such
uses were not settled in the eastern part of the site. There was a very
substantial increase in the scale, extent and area covered by the
vehicle-orientated elements of use. Major increases in overall activity had
brought about a fundamental change in the appearance and character of the site
as a whole. As a matter of fact and degree the use on the site was materially
different from the use as it subsisted at the end of 1963, or indeed at the
time of the inquiry in 1976. The change took place between 1977 and 1985. It
was not simply intensification but new and different use for the purpose specified
in the enforcement notice. That amounted to a material change of use and breach
of planning control since the end of 1963.
(4) However, when considering section 88(2)(g)
specifically and the steps required to remedy the breaches of planning control,
the inspector concluded that, although the site was a single planning unit, the
western part of the site had been used for haulage business from before 1960
until the date of the enforcement notice which was served in February 1988. The
enforcement notice should be varied to take account of those conclusions.
The
‘established’ use of the western part of the site, to the extent that it
existed in 1977, when it was found to be immune from enforcement action, should
be saved.
Those are the
essential facts giving rise to the present appeal.
The Town and
Country Planning Act 1971 together with subsequent amendments is a statutory
scheme complete in itself and not subject to accretions in the course of
judicial decisions.
‘Planning
control is the creature of statute . . . Parliament has provided a
comprehensive code of planning control’ per Lord Scarman in Pioneer
Aggregates (UK) Ltd v Secretary of State for the Environment [1985]
AC 132.
Section 23(1)
of the Town and Country Planning Act 1971 provides: ‘. . . planning permission
is required for the carrying out of any development of land.’
Subject to
certain exceptions specified in section 22(2), ‘development’ includes making
any material change in the use of buildings or other land.
Section 23(9)
provides:
Where an
enforcement notice has been issued in respect of any development of land,
planning permission is not required for the use of that land for the purpose
for which (in accordance with the provisions of this Part of this Act) it could
lawfully have been used if that development had not been carried out.
An unlawful
use does not become a lawful use for the purposes of section 23(9) merely
because, having been established before the end of 1963, it could not be
subject to enforcement action under section 87(1).
This principle
was established in LTSS Print & Supply Services Ltd v Hackney
London Borough Council [1976] QB 663. Cairns LJ said at p 672:
If a state of
affairs or an activity has been infringing statutory provisions, then I do not
consider that it can ever be said to be lawful in accordance with the
provisions unless something has supervened to make it lawful. Mere immunity
from process does not make it lawful.
Lawton LJ said
at p 676:
It follows .
. . that the phrase ‘lawfully used’ in section 23(9) of the 1971 Act means a
use for which planning permission had been granted or was not required under
section 23(2), (3), (4) and (7). A use for which there was no planning
permission nor any statutory exception from planning permission would be one
which arises out of an unlawful development.
However, he
continued:
If it came
within section 87(3) of the Act of 1971, although unlawful, it would be one
which was immune from enforcement proceedings.
Accordingly,
immunity from the enforcement notice procedure does not create a lawful use for
the purposes of section 23(9) having the effect that planning permission to
carry out development would not be required.
Where an
enforcement notice has been issued there can only be reverter to the use
current immediately before the development which is the subject of the
enforcement notice. If that use was not itself lawful, planning permission
would be required: Young v Secretary of State for the Environment
[1983] 2 AC 662.
The effect of
section 23(9) was comprehensively summarised in Thrasyvoulou v Secretary
of State for the Environment [1990] 2 WLR 1* at p 12. Lord Bridge of
Harwich said:
The effect of
this subsection is that when an owner or occupier of land discontinues a use of
land in compliance with the requirements of an enforcement notice, it is not
enough to entitle him to resume the immediate preceding use to show that,
before the unauthorised change, that use was immune to enforcement procedure,
having been begun before 1964; he may only resume a previous use which was
itself begun lawfully ie without any breach of planning control.
*Editor’s
note: Also reported at [1991] 2 PLR 69.
In Cynon
Valley Borough Council v Secretary of State for Wales (1986) 53
P&CR 68 the Court of Appeal considered premises which had in 1958 been used
as a fish and chip shop with planning permission. For a period between 1978 and
1983 the premises were let as an antique shop. In 1983 it was proposed to
resume use of the premises as a take-away food shop. The owner was informed
that she required fresh planning permission. The inspector held that there was
no development which required planning permission. One reason applied by the
inspector was that the change of use from fish and chip shop to antique shop
did not mean that the benefit of the 1958 planning permission had been lost.
The single judge upheld this reasoning. In the Court of Appeal it was held that
this change back from antique shop to take-away food shop was outside
development permitted by the General Development Order 1977. Although the
appeal from the decision of the judge was dismissed, it was on a narrow ground
of construction of section 23(8). The reasoning of the inspector and the judge
that the benefit of the 1958 planning permission had not been lost was
rejected. In this case there was plainly no ‘continuous’ use: the premises
ceased to be used for the purpose for which planning permission had originally
been granted.
These three
decisions, followed by the decision in the Cynon Valley case, were
fundamental to the appellants’ submission that the Mansi principle had
been substantially overruled. The argument was that the right to make a
material change of use without planning permission under section 23(9) is
restricted to the use obtaining before the act of development alleged in the
enforcement notice to constitute breach of planning control. An earlier lawful
use may not be resumed if the use before the relevant act of development was
itself unlawful. Such change of use is an act of development itself requiring
planning permission. Without such permission there is a breach of planning
control.
The decision
in Mansi v Elstree Rural District Council was not referred to in
any of the judgments or speeches. There is a note at p 663 of the report in Young
that Mansi was cited in argument. The note of counsel’s respective
arguments makes no reference to Mansi. It seems reasonable to infer that
when Mansi was cited it was at best a fleeting or passing reference
which counsel who cited it did not consider justified a reference in the note
of argument. Beyond that rather vague reference, Mansi does not appear
to have been cited in any of the decided cases. I note also that these
decisions were not directly concerned with section 87, section 88 or section 94
of the Act.
The decision
in Mansi was based on the terms of section 46 of the Town and Country
Planning Act 1962. This enabled the minister, inter alia, in an
appropriate case to vary the terms of an enforcement notice in favour of the
appellant.
The facts were
that land was used as a plant nursery. This use went back to 1922. There were a
number of glass houses, one of which was used for retail sales of nursery
produce. In 1959 that use intensified. The glass house was used as a shop. The
enforcement notice alleged that the glass house had changed from use for
agricultural purposes to use for the sale of goods and required its
discontinuation. The matter came before the divisional court for a decision on,
among other questions, whether the enforcement notice went further than it
legitimately might by prohibiting even retail sales. On this Widgery J said
that the argument was ‘Quite unanswerable’. He said:
There was a
very old established use affecting these premises for the sale of goods by
retail. True that use is a limited and restricted one, but nevertheless the
planning Acts gave no power to the local planning authority to restrict or
remove that use, such as it was . . . he ought to have amended the notice under
the powers given to him so as to make it perfectly clear that the notice did
not prevent the appellant from using the premises for the sale of goods by
retail, provided that such sale was on the scale and in the manner to which he
was entitled in 1959 . . . True that use was a subsidiary one, but nevertheless
it should be protected . . . so as to safeguard the appellant’s established
right as found by the Minister.
After Lord
Parker CJ and Paull LJ had indicated their agreement with his conclusions,
Widgery J continued:
I wish to
make it clear that the appellant is entitled under the planning Acts to
continue the user as it was in 1959 and may also, of course, have a right under
the planning Acts to intensify that user provided he does not thereby occasion
a material change in use.
In passing, I
note that the critical date was twice stated to be 1959, not 1922.
The equivalent
statutory provisions in sections 45 and 46 of the 1962 Act are to be found in
section 87 (power to issue an enforcement notice) and sections 88, 88A and 88B
(appeals against and power to vary enforcement notice) of the 1971 Act, as
substituted.
In particular
an appeal may be brought against an enforcement notice on the ground ‘that the
steps required . . . exceed what is necessary to remedy any breach of planning
control’ (section 88(2)(g)). Mansi v Elstree Rural District
Council is described in the current Encyclopedia of Planning Law and
Practice as a ‘leading case’. It has been frequently applied. In Trevors
Warehouses Ltd v Secretary of State for the Environment (1972) 23
P&CR 215, the divisional court accepted that it had been the ‘practice’ of
the
planning control. In Newport v Secretary of State for the Environment
[1980] JPL 596 it was said to be ‘perfectly legitimate’ for use to be continued
as long as it did not exceed what was being carried on prior to 1964. It was
said that there was ‘some right, albeit a limited and restricted right, that
ought to be preserved and that the use of the premises beyond that right, which
is, of course, a breach of planning control, must be discontinued’ (per
Stephen Brown J). Other examples of the application of the principle include Lee
v Bromley London Borough Council (1982) 45 P&CR 342, Choudhry
v Secretary of State for the Environment [1983] JPL 231, North Sea
Land Equipment v Secretary of State for the Environment [1982] JPL
384 and Haigh v Secretary of State for the Environment [1983] JPL
40.
In Denham
Developments Ltd v Secretary of State for the Environment (1983) 47
P&CR 589 Glidewell J considered the Mansi principle in the context
of the decisions in LTSS Print & Supply Services Ltd v Hackney
LBC and Young v Secretary of State for the Environment. The
facts were that at the end of 1963 there were premises with a mixed use
throughout the site for fence making and a builders’ yard. In 1980 the fence
making use was terminated. Thereafter, there was a single use for the storage
of builders’ materials and plant. The enforcement notice required cessation of
such use. The appeal was brought under section 88(2)(e) and (g).
The inspector held that the single use after 1980 had ‘wholly supplanted’ the
previous mixed use and that storage use was different in character from use as
a builder’s yard. Before Glidewell J it was argued on behalf of the Secretary
of State that the decisions in the LTSS and Young cases provided
authority for the meaning and application of section 23(9). The use for which
the appellant sought protection was based on pre-1964 but post-July 1 1948 use.
It was therefore merely immune from enforcement proceedings.
Glidewell J
allowed the appeal. The Secretary of State was asked to consider ‘whether it
could properly be said that one or more parts of the site had been used
continuously since after the beginning of 1964 as land on which builders’
materials and plant had been stored for the purposes of a builder’s business’.
The purpose of that question was to enable the Secretary of State to decide
whether the uses carried on from before 1964 had or had not been intermingled
so as to make it impossible to say with clarity that one part of the land had
been used for one purpose and another part for the second purpose. If it could
not, then it followed that there had been no continuity of the second use
throughout the relevant period. If, however, it were concluded that a defined
part of the land had been continuously used for the storage of builders’
materials and plant, then the enforcement notice should be amended to preserve
that use.
This decision
was referred to by all counsel to support their respective submissions. If I
may say so, it is a decision which commands the greatest possible respect, not
least from a single judge considering the present appeal. It is evident from
the decision that Glidewell J did not regard the Mansi principle as
undermined by the decisions in LTSS and Young. Indeed he applied
the Mansi principle. He referred to the distinction between immunity
from enforcement proceedings and a lawful use. He concluded that, provided the
Secretary of State was satisfied that continuous use in a defined part or parts
of the land going back to 1963 was shown, then on the facts that use should be
preserved. In other words, subject to the principles indicated by Glidewell J
the decision was one of fact. I respectfully doubt whether his conclusions
would have been different if the matter had come before him for decision after
the judgment of the Court of Appeal in the Cynon Valley case.
I have already
noted that in LTSS v Hackney Borough Council, Young v Secretary
of State, Thrasyvoulou v Secretary of State and the Cynon Valley
case the Mansi principle was not expressly considered and that sections
87, 88 and 94 were not immediately relevant. Despite those features, I should
be bound by those decisions if their effect were to overrule the Mansi
principle. However, it would be unfortunate, to put it no higher, if a single
judge were obliged to cast doubt on a principle first stated some 25 years ago,
followed consistently since then and standing unchallenged until the present
appeal. The effect would be to create uncertainty and confusion in an area of
law now long regarded as clear and settled.
My conclusion
is that the principle in Mansi v Elstree Rural District Council
has not been affected by those decisions.
In my judgment
there is no inconsistency or difficulty with the Mansi principle nor
with reconciling it with the statutory provisions in section 23(9) of the Act.
Section 23 is concerned with the requirement of planning permission for
development. Section 87 provides powers to enforce against developments which
are in breach of planning control. It is, however, subject to limitations,
rights of appeal and powers to vary (sections 88 and 88A). Section 94 underlines
that the use of land begun before 1964 without planning permission and
continuing since that date may be an ‘established’ use. The Act itself
therefore recognises an unlawful but established use of land. In certain
circumstances a use of land without planning permission may be unlawful but
nevertheless remain immune from enforcement proceedings. Section 23(9) by its
terms, and as construed by binding authority, has the effect that reversion to
a former use after enforcement proceedings is not permitted unless such
former use was ‘lawful’. In other words, an ‘established’ use may not be
revived for the purposes of section 23(9). However, an ‘established’ use which
has been continuous since 1964 and has continued until enforcement
proceedings is immune from such proceedings. In the context of this legislation
the fact that an established use cannot be revived does not carry with it the
further consequence that such a use, if continued since 1964, will lose its
immunity from enforcement.
Whether a
continuing ‘established’ use has been in existence since before 1964, whether
changes on the whole or part of the site have resulted in a break in continuity
and whether the steps required by an enforcement notice to remedy any breach of
planning control are excessive are questions of fact for the particular
inspector.
Applying these
principles there was sufficient material before the inspector to enable him to
reach the conclusions which he did. This appeal fails, and the decision will
not be remitted to the Secretary of State for the Environment for
redetermination.
Appeal
dismissed with costs to the first and second respondents.