Enforcement notice — Conversion of dwellinghouse into two separate flats — Whether immune from enforcement under four-year rule — Town and Country Planning Act 1990 section 172(4)(c)
Two appeals
were heard together relating to the proper construction of section 172(4)(c) of
the Town and Country Planning Act 1990 and whether the immunity from
enforcement after four years (‘the four-year rule’) applied equally to a breach
of planning control consisting of the change of use without planning permission
of a single dwellinghouse into two (or more) separate dwellinghouses as to the
unpermitted use of a building as a single dwellinghouse.
Van Dyck: In 1982-83 2 Oakleigh Park Drive, Southend-on-Sea, was divided
into two self-contained flats. No planning permission was obtained for the
conversion. In 1986 the appellants, Mr and Mrs Van Dyck, acquired a long lease
of the ground-floor flat. In 1989, on discovering the breach of planning
control, they applied to Southend-on-Sea Borough Council for retrospective
planning permission. Permission was refused and the appellants appealed to the
Secretary of State for the Environment, whose appointed inspector dismissed the
appeal. He based his decision on the exacerbation of on-street parking
congestion resulting from the unauthorised conversion and the precedent that
would be set if the appeal were allowed. The appellants applied to quash the
decision on the ground, inter alia, that the change of use into two
flats was immune from enforcement under the four-year rule so that, even if it
constituted demonstrable harm, there would be no change in the parking
situation if planning permission were granted. The application was dismissed by
Sir Frank Layfield QC, sitting as a deputy judge, who held that section
174(4)(c) did not apply to the subdivision of a single dwellinghouse into two
dwellings, so that the inspector was not obliged to take account of an
inability of the council to take enforcement action: [1992] 2 PLR 5. The owners
appealed.
Doncaster: In 1971 16 Markham Avenue, Carcroft, Doncaster, until then a
building occupied as a single dwellinghouse, was converted into two separate
flats. In 1990 Doncaster Borough Council issued an enforcement notice alleging
the making of a material change of use of the land from use for single family
occupation to a use for the purpose of multiple paying occupation providing
flat accommodation. On an appeal against the notice, the inspector accepted
that the change of use occurred in 1971 when the conversion into two flats took
place. He held
flat was a building and should be regarded as a separate dwellinghouse and
therefore entitled to immunity under the four-year rule. The council’s appeal
to the High Court was allowed by Webster J: [1992] 2 PLR 46. He accepted the
submission that section 172(4)(c) did not apply as the enforcement notice was
directed to the property as a whole, not to any individual part of it. The
Secretary of State appealed.
1. Section
172(4)(c), construed in the context of section 55(3)(a) and section 336(1), was
capable of encompassing subdivision within its protection and of being
construed and applied so as to benefit all new separate residences after four
years. Having regard to the broad policy underlying the provision, namely
Parliament’s desire to protect long-established residential occupation, it
should be thus construed and applied: see pp 127F-H, 136D-137C and 141D.
2. The court
could not have regard to the report of the Parliamentary debate in Hansard
to assist in the interpretation of section 172(4)(c), since statements by the
minister lacked the clarity required by the third limb of the test in Pepper
v Hart [1992] 3 WLR 1032: see pp 137E-141C.
Decisions of
Sir Frank Layfield QC in Van Dyck v Secretary of State for the
Environment [1992] 2 PLR 5 and Webster J in Doncaster Borough Council v
Secretary of State for the Environment [1992] 2 PLR 46 reversed.
to in the judgments
Backer v Secretary of State for the Environment (1980) 42 P&CR
98
Birmingham
Corporation v Habib Ullah [1964] 1 QB 178;
[1963] 3 WLR 937; [1963] 3 All ER 668, DC
Burdle v Secretary of State for the Environment [1972] 1 WLR 1207,
DC
Ealing
Corporation v Ryan [1965] 2 QB 486; [1965] 2
WLR 223, DC
Impey v Secretary of State for the Environment (1984) 47 P&CR
157, DC
Okereke v Brent London Borough Council [1967] 1 QB 42; [1966] 2 WLR
169, CA
Peacock
Homes Ltd v Secretary of State for the
Environment (1984) 48 P&CR 20, CA
Pepper v Hart [1992] 3 WLR 1032; [1993] 1 All ER 42; [1993] ICR
291, HL
Rawlins v Secretary of State for the Environment [1990] 1 PLR 110
Trevors
Warehouses Ltd v Secretary of State for the
Environment (1972) 23 P&CR 215
Wood v Secretary of State for the Environment (1973) 25 P&CR
303, DC
Worthing
Borough Council v Secretary of State for the
Environment [1992] 2 PLR 40; (1991) 63 P&CR 446; [1992] JPL 353
Appeals
against decisions of Sir Frank Layfield QC and Webster J
In Van Dyck
v Secretary of State for the Environment, the appellants, Peter Louis
Van Dyck and Janice Elizabeth Van Dyck, appealed against the decision of Sir
Frank Layfield QC (sitting as a deputy judge of the Queen’s Bench Division)
dated October 2 1991, [1992] 2 PLR 5, whereby he dismissed their application
under section 288 of the Town and Country Planning Act 1990 to quash the
decision dated October 5 1990 of the Secretary of State, by his inspector, who
had dismissed their appeal against the refusal by Southend-on-Sea Borough
Council to grant retrospective planning permission to use the house at 2
Oakleigh Park Drive, Southend-on-Sea, as two self-contained flats.
In Doncaster
Borough Council v Secretary of State for the Environment, the
Secretary of State for the Environment, appealed against the decision of
Webster J dated November 7 1991, [1992] 2 PLR 46, whereby he allowed an appeal
under section 289 of the 1990 Act by Doncaster Borough Council against the
decision dated April 11 1991 of an inspector, who had quashed an enforcement
notice issued by the council in respect of an alleged breach of planning
control at 16 Markham Avenue, Carcroft, Doncaster.
Newcombe (instructed by L Dawson & Co) appeared for the appellants, Mr and
Mrs Van Dyck.
(instructed by the Treasury Solicitor) appeared for the Secretary of State for
the Environment in both appeals.
(instructed by Sharpe Pritchard, agents for W R Bugler, of Doncaster) appeared
for the respondents, Doncaster Borough Council.
respective second respondents, Southend-on-Sea Borough Council and A Dunnill,
did not appear and were not represented.
following judgments were delivered.
SIMON BROWN
LJ:
CHAPTER I
There are
before the court two appeals which I shall call respectively the Doncaster
appeal and the Van Dyck appeal. Both turn upon the same short point of
law: The proper construction and application of section 172(4)(c) of the Town
and Country Planning Act 1990 (now re-enacted in substantially similar form as
section 171B(2) by section 4 of the Planning and Compensation Act 1991). More
particularly the issue raised by these appeals is this: does the immunity from
enforcement notice proceedings after four years provided by section 172(4)(c)
(hereafter called the four-year rule) apply equally to a breach of planning
control consisting of the change of use without planning permission of a single
dwellinghouse into two (or more) separate dwellinghouses (hereafter called
subdivision) as to the unpermitted use of a building as a single
dwellinghouse? The appellants (including
the Secretary of State in the Doncaster appeal) submit that it does;
Doncaster Borough Council submit not.
In late 1991 there
were in quick succession three decisions on the point: two, the two now under
appeal, holding that the four-year rule does not apply to the subdivision of a
single dwellinghouse; the third — Worthing Borough Council v Secretary
of State for the Environment [1992] 2 PLR 40 (Worthing) — holding
that it does.
Before
considering the facts of these cases it is convenient first to set out the
statutory framework within which the point of law arises and to give a brief
indication of the rival contentions.
The relevant
provisions of the 1990 Act are as follows:
55.–(1) . . . ‘development’ means . . . the making of any material
change in the use of any buildings or other land.
(3) For the avoidance of doubt it is hereby
declared that for the purposes of this section —
(a) the use as two or more separate
dwellinghouses of any building previously used as a single dwellinghouse
involves a material change in the use of the building and of each part of it
which is so used . . .
172.– (1) Where —
(a) it appears to the local planning authority
that there has been a breach of planning control after the end of 1963; and
(b) the authority consider it expedient to do
so . . . they may issue a notice [an ‘enforcement notice’] requiring the breach
to be remedied.
(3) There is a breach of planning control —
(a) if development has been carried out . . .
without the grant of the planning permission required . . .
(4) An enforcement notice which relates to a
breach of planning control consisting in —
. . .
(c) the making without planning permission of
a change of use of any building to use as a single dwellinghouse . . .
may be issued
only within the period of four years from the date of the breach . . .
336.– (1) In this Act, except in
so far as the context otherwise requires
. . .
‘building’
includes any structure or erection, and any part of a building, as so defined .
. .
174.–
(1) A person having an interest in the
land to which an enforcement notice relates or a relevant occupier may appeal
to the Secretary of State against the notice . . .
(2) an appeal may be brought on any of the
following grounds —
. . .
(d) in the case of a notice to which section
172(4) applies, that the period of four years from the date of the breach of
planning control to which the notice relates had elapsed at the date when the
notice was issued . . .
The
appellants’ argument focuses particularly on sections 55(3)(a), 172(4)(c) and
336(1) and essentially amounts to this: when a single dwellinghouse is
subdivided, say into two flats, there is a breach of planning control
consisting of a material change of use of each part of it: section 55(3)(a) so
states. Having regard to section 336(1) (the interpretation section), section
172(4)(c) can and should be read as stating: ‘the making without planning
permission of a change of use of any building or any part of a building
[emphasis supplied] to use as a single dwellinghouse’ may be issued only within
four years of the breach. ‘Building’ is plainly apt to include a dwellinghouse;
likewise ‘any part of a building’ is apt to include that part which becomes a
flat following subdivision, and the flat itself becomes a separate and
accordingly a ‘single’ dwellinghouse. Even assuming that it is theoretically
possible to address the enforcement notice to the whole house as well as to
each flat following its subdivision, the planning authority cannot thereby
deprive the occupiers of the individual flats of the ground of appeal otherwise
available to them under sections 172(4)(c) and 174(2)(d).
The
respondents’ contrary argument is essentially as follows: section 55(3)(a)
exists merely so that no one may argue that the subdivision of
material change of use. It casts no light on the proper construction and
application of section 172(4)(c). For the purposes of this latter section it is
wrong to judge whether there has been a material change of use to use as a
single dwellinghouse by reference to the change which the unauthorised
development has brought about; rather, the occupiers only acquire immunity
under this provision when each part of the building converted was itself
properly to be regarded as a distinct planning unit before the development took
place. That at least is how I understand the respondents’ argument although I
confess to having found it on occasion somewhat elusive.
I turn now to
the decisions under appeal which I propose to deal with in chronological order,
inserting between them such reference as is helpful to Worthing.
(1) Van Dyck
The facts
In 1982/83 2
Oakleigh Park Drive, Southend-on-Sea was divided into two flats. Planning
permission should have been but was not obtained. In 1986 the appellants, unaware
of the lack of planning permission, acquired a long lease of one of the flats.
Only in 1989 did they discover this breach of planning control and seek to cure
it by an application to the borough council for retrospective planning
permission. It was refused. They appealed to the Secretary of State for the
Environment. An inspector was appointed to determine the appeal. He concluded
that there were two main issues, first, whether the conversion would adversely
affect the character and appearance of the surrounding area, second, whether it
would be detrimental to the safety and free flow of traffic on Oakleigh Park
Drive. The first issue he resolved in the appellants’ favour. As to the second,
however, he expressed himself ‘convinced that the unauthorised conversion of
the house into flats has resulted in more competition for the limited kerbside
parking, exacerbating the congestion and so the potential hazards for drivers
and pedestrians’. He accordingly dismissed the appeal. That was in October
1990. The appellants then applied to the High Court to quash that decision
pursuant to section 288 of the 1990 Act. Essentially their case was that more
than four years had elapsed since the breach of planning control in question
and that it was therefore no longer possible for the planning authority to
enforce against it. Nothing, therefore, was to be gained by refusing the
planning permission sought. At the very least the inspector should have had
regard to the fact that the breach could no longer be enforced against. Clearly
that was a material consideration. Instead, he assumed the contrary, this being
evident from his regretful conclusion that the appellants ‘will have to bear
the consequences and costs of restoring [the property] to a single house’. In
short, the appellants took before the court (although not, it seems, before the
inspector) the point now under appeal.
The
decision under appeal
The point
failed. On October 2 1991 the statutory application was
Bench Division: [1992] 2 PLR 5. The relevant part of his judgement reads as
follows (at pp 8H-9C):
Mr Jay, on
behalf of the Secretary of State, the first respondent, concedes that if the
applicants are correct in claiming that the conversion of each part of the
premises to a self-contained flat is immune from enforcement proceedings by the
operation of section 172(4)(c) of the 1990 Act, then the Secretary of State has
lost the case. It was only upon that section that [counsel] for the applicants,
based his submission of immunity. Mr Jay pointed out, however, that the subject
under review is the subdivision of a single dwelling into two dwellings. That
is not the change to which section 172(4)(c) is addressed. The subsection
applies where there is a breach of planning control which consists of the
making of a change of use of any part of any building to use as a single
dwellinghouse. The breach to which the subsection applies is, I consider, a
quite distinctly different breach which consists in making a change of use of
any dwelling into two dwellinghouses as the wording of section 55(3)(a)
demonstrates. I find, therefore, that section 172(4)(c) does not itself confer
immunity on the change of use made in 1983 at the latest. If I am correct in
that reading, there was no obligation on the inspector to take account of an
inability of the council to take enforcement action.
The sentence
starting ‘The breach to which the subsection applies’ can perhaps usefully be
fleshed out to clarify the meaning which I have no doubt Sir Frank intended:
The breach to
which the subsection [ie section 172(4)(c)] applies is, I consider, a
quite distinctly different breach to [that alleged here] which consists in
making a change of use of any dwelling into two dwellinghouses as the wording
of section 55(3)(a) demonstrates.
(The words in
square brackets are those I have added for clarity.)
What in short
I understand Sir Frank to have been saying was that whereas section 55(3)(a) is
all about subdivision — change of use from use as a single dwellinghouse
— section 172(4)(c) deals with the converse situation — change of use to use as
a single dwellinghouse.
(2) Worthing
The facts
A two-storey
house in Worthing was converted into two flats, respectively a ground-floor flat
and a first-floor flat. Over four years later Worthing Borough Council issued
an enforcement notice alleging a breach of planning control consisting in the
‘unauthorised change of use of land from a single unit of residential
accommodation into two units of accommodation’, and requiring the occupiers, by
way of the steps to be taken to remedy the breach: ‘to discontinue use of the
land as two units of accommodation and to revert the use thereof to a single
unit of residential accommodation’. The occupiers appealed to the Secretary of
State and before the inspector appointed took the point now under appeal —
contending that is, that they were entitled to immunity under
enforcement notice. Worthing Borough Council then appealed to the High Court
under section 289 of the 1990 Act.
The
decision
This time it
was held that the breach of planning control was immune. On November 5 1991 the
planning authority’s statutory appeal was dismissed by Sir Graham Eyre QC,
sitting as a deputy judge: [1992] 2 PLR 40. His reasoning was largely, although
not entirely, that now urged by the present appellants. He emphasised the
importance of reading into section 172(4)(c) the definition of building from
section 336 and continued (at p 45A):
On the
conversion of each self-contained flat each was a part of a building and the
change of use of those parts was each to use as a single dwellinghouse . . . I
note that Sir Frank Layfield appears not to have been taken to the definition
of ‘building’ in section 336 of the Act, which is fundamental to the
construction of section 172(4)(c).
That would seem
to be wrong: the passage I have already cited from Sir Frank’s judgment appears
clearly to recognise that the word ‘building’ in section 172(4)(c) includes
also reference to a part of a building.
Sir Graham
then differed from Sir Frank as to the relevance of section 55(3)(a), himself
expressing the view that it afforded no assistance to the proper construction
of section 172(4)(c).
(3) Doncaster
The facts
In 1971, Mr
Dunnill, the second respondent to this appeal, subdivided 16 Markham Avenue, a
two-storey house which he owned in Doncaster, into two self-contained flats,
creating thereby, as in the Worthing case, essentially a ground-floor
flat and a first-floor flat. These flats he thereafter let, mostly to young
couples, so that they remained in continuous occupation. On June 4 1990
Doncaster Borough Council served upon Mr Dunnill an enforcement notice alleging
as the breach of planning control ‘the making of a material change in the use
of the land from a use for single family occupation to a use for the purpose of
multiple paying occupation providing flat accommodation’ and requiring Mr
Dunnill ‘to discontinue the use of the land for the purpose of multiple paying
occupation’.
Mr Dunnill
appealed to the Secretary of State and, as in Worthing, successfully
took the immunity point under section 172(4)(c). The inspector, while noting
the particular allegation made by that enforcement notice, concluded that it
was clearly referable to flat accommodation and further that the two flats ‘are
not separate planning units’. He accepted that each flat was a separate
dwellinghouse and therefore entitled to immunity under the four-year rule. He
accordingly quashed the enforcement notice. Doncaster Borough Council, like
Worthing Borough Council, appealed under section 289.
The
decision under appeal
This time it
was held that the breach of planning control was not immune. On November
7 1991 Webster J allowed the planning authority’s statutory appeal: [1992] 2
PLR 46. He agreed with Sir Frank Layfield; disagreed with Sir Graham Eyre.
Having noted the Secretary of State’s arguments — substantially the same as
those advanced before us — he continued as follows (at pp 49H-50D):
There is, in
my view, much force in many of those contentions. However, they overlook both
the mischief aimed at by the relevant provisions and the obviously intended
effect of section 172(4)(c). The mischief aimed at to the extent that it is not
protected by section 172(4)(c) is that of converting one building, or part of
it, whether or not it was a dwellinghouse before the conversion, into two or
more dwellinghouses. The obviously intended effect of section 172(4)(c) is to
give limited protection where a building, or part of it, is converted into one
dwellinghouse.
In this case,
the enforcement notice related to the whole of one dwellinghouse which, in
breach of planning control, had been converted not into one but into two
dwellinghouses. The enforcement of planning control was enforced against the
house as a whole, the unit which had been developed, and not against each flat
which had not existed before the conversion.
The reply to
Mr Havers’ [counsel then appearing for the Secretary of State] submission that,
in effect, the breaches were two breaches and not one, consisting of the
conversions of two separate parts of the use into two separate flats, each of
which conversions would, if viewed separately, have been protected by section
172(4)(c), is that the development actually carried out was not the conversion
of any separate part of the house, but the conversion of the house as a whole.
Moreover, it would, in my view, have been impossible to identify the relevant
use for planning purposes of either of the two parts of the house, which were
converted into the flats, before that conversion took place. Although the Act,
as it applies to a building, is to be taken to apply to a part of a building,
the definition section does not provide that when it applies to a dwellinghouse
it is to be taken to apply to a part of the dwellinghouse. I can think of no
way of describing the use of either of the two parts of the house before
conversion for planning purposes other than simply as, in each case, a part of
the dwellinghouse.
It will be
noted that Van Dyck came before the Secretary of State as a planning
appeal; the Worthing and Doncaster cases as appeals against
enforcement notices. This, I have no doubt, explains the difference in approach
taken by the various inspectors. It was only the inspector in the planning
section who adopted an approach inconsistent with that for which the Secretary
of State now contends. That, however, is by the way; the important question is:
which approach is right?
It seems to me
necessary first to consider what if any assistance one gets from the judge-made
concept of the planning unit. This, after all, is the concept underlying the
respondents’ arguments.
As is well
known, the planning unit concept evolved as a means of determining the most
appropriate physical area against which to assess the materiality of change —
to decide, therefore, whether or not in any particular case there has been a
breach of planning control consisting of a ‘material change in the use of any
buildings or other land’.
The classic
exposition of this doctrine is to be found in the judgment of Bridge J in Burdle
v Secretary of State for the Environment [1972] 1 WLR 1207, from which
the following short passage (at p 1213A) will for present purposes suffice:
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 in substance to a separate use both physically and
functionally.
Counsel for
the respondents drew our attention to Wood v Secretary of State for
the Environment (1973) 25 P&CR 303 in which the Divisional Court were
concerned with the varying uses of different parts of a smallholding which at
all material times remained in the appellant’s sole occupation. The particular
question raised was whether it was right to treat a conservatory extension of
the farmhouse as a separate planning unit. Giving the judgment of the
Divisional Court, Lord Widgery CJ, at p 309, referred to a number of decisions
in which ‘one finds a disinclination to cut up a holding into penny packets and
treat them as separate planning units’, cited from the passage from Burdle
to which I have already referred, and continued:
That
authority seems to me to support the view, which I would think to be right
without such assistance, that it can rarely if ever be right to dissect a
single dwellinghouse and to regard one room in isolation as being an
appropriate planning unit for present purposes.
Relying on
that decision, Mr Wood submits that the court should be reluctant to conclude
that the appropriate planning units in the case of a subdivided house are the
flats resulting rather than the single dwellinghouse previously existing.
He further
points to Rawlins v Secretary of State for the Environment [1990]
1 PLR 110 where this court upheld the planning authority’s selection of an area
greater than that against which they might have sought to enforce, and greater
certainly than that of the individual areas of occupation within it. The
unsuccessful appellants there were travelling showmen occupying individual
caravan plots. The enforcement notices were directed 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’. The court recognised the
well-established principle that the question of what is the proper planning
unit is essentially a matter of fact and degree and accepted that it was
permissible in that case for the authority to have taken a large unit even
though within it were individual plots in separate ownership.
Rawlins was relied upon also by Mr Katkowski for the Secretary of State, in
particular the following passage from Butler-Sloss LJ’s judgment (at p 114C):
. . . I do not
see these appeals as setting aside the existing long-established practice of
issuing and serving enforcement notices on a planning unit,
for the Environment (1974) 28 P&CR 424 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 . . .
cases have unusual if not exceptional features and characteristics . . . which
justify the less usual procedure adopted, but which do not appear to have
arisen before and are therefore unlikely to arise frequently.
The burden of
the appellants’ submissions on the planning unit issue is that the cases of
subdividing dwellinghouses, unlike Rawlins, are not exceptional so that
the ordinary practice should apply; that is, enforcement action should be
targeted at the unit of occupation, here each individual flat. For good
measure, submits Mr Katkowski, the inspector in Doncaster in any event
expressly found that the two flats ‘are now separate planning units’. In so far
as the question is one of fact and degree, therefore, it was a question for him
and he resolved it against the planning authority. Each individual unit should,
therefore, he submits, be held entitled to the benefit of the four-year rule.
Having
considered these competing submissions at some length I have reached the
conclusion that the concept of the planning unit in fact affords no assistance
to either side. As stated, the purpose of the concept — the only point in
deciding upon the appropriate planning unit — is to decide whether or not there
has been a material change of use. Here, undoubtedly, there has been: section
55(3)(a) so declares. There is, accordingly, no possible need to invoke the
doctrine of the planning unit to decide the question. Here, moreover, it was
the very act of creating two separate units of occupation out of a single
pre-existing unit which constituted the making of the material change of use.
How inappropriate, therefore, that one should seek assistance from a doctrine
substantially founded on units of occupation to illuminate the nature of the
breach of planning control in question or to determine the appropriate target
for enforcement. In short, none of the planning unit cases to which I have
referred has, I believe, any application whatever to the situation presently
confronting this court.
I turn next to
a brief consideration of the three judgments already given upon the point at
issue.
1. Van Dyck
I cannot accept
Sir Frank Layfield’s apparent view that because subdivision is within section
55(3)(a) it is not therefore within section 172(4)(c). Section 55(3)(a) is, one
must note, only concerned to declare that a particular change of use is a
breach of planning control. Section 162(4)(c) dictates simply for how long a
particular change of use is vulnerable to enforcement. Beyond pointing out
merely the first blush difference between the two provisions, Sir Frank seems
to me to give no reasoning for his conclusion that: ‘. . . the subdivision of a
single dwellinghouse into two dwellings . . . is not the change to which
section 172(4)(c) is addressed’.
2. Worthing
Sir Graham
Eyre reached the opposite conclusion from Sir Frank Layfield, essentially by
putting aside section 55(3)(a) and adopting a possible literal reading to
section 172(4)(c) after building in the definition of ‘building’.
3. Doncaster
Webster J’s
thoughtful reasoning is to be found in the long passage which I have already
set out (p 131B-F ante). There seem to me, however, fundamental
difficulties within it. First, I have difficulty with the learned judge’s
suggestion that’ . . . the development actually carried out was not the
conversion of any separate part of the house, but the conversion of the house
as a whole’. The development here in question, it must be remembered, was not
the conversion (whatever precisely that may be) at all — it was rather the
material change of use occasioned by ‘the use as two . . . separate
dwellinghouses’ of the building previously used as a single dwellinghouse: see
section 55(3)(a). Obviously, whoever converts such a house (if by conversion is
meant the physical creation of separate living facilities) initiates the
situation in which the material change of use can then occur. But the actual
breach of planning control only commences when separate dwellinghouses exist
and, indeed — subject only to the decisions in Impey v Secretary of
State for the Environment (1984) 47 P&CR 157 and Backer v Secretary
of State for the Environment (1980) 42 P&CR 98 — only when these
separate dwellinghouses actually come to be used as such.
Second, I
cannot share the judge’s view that ‘it would . . . have been impossible to
identify the relevant use for planning purposes of either of the two parts of
the house, which were converted into the flats, before that conversion took
place’. As it seems to me, section 55(3)(a) answers that too: the material
change of use is declared to have taken place in regard to each part of the
building; accordingly the previous use of each part was that of a (different)
dwellinghouse.
None of these
three decisions, therefore, do I find compelling in their reasoning.
What
additional arguments have been advanced before this court? Let me turn first to those which for my part
I have found ultimately unhelpful in resolving this case.
Mr Katkowski
drew our attention to the statutory provisions requiring enforcement notice to
be served on all owners and occupiers (section 172(6)) and enabling any
occupier, including even a licensee, to appeal to the Secretary of State
(section 174(1),(6)). So be it. This seems to me a slender basis for contending
that the four-year rule must therefore apply to each part of the subdivided
dwelling. Why should that be? Of course
I recognise that there are individual interests involved and equally obviously
that there will often be acute problems of enforcement. Take a case where the
owner has divided his house into two self-contained flats (or, indeed, two
separate vertical freeholds) and sold each to a different buyer. But even were
the four-year rule to apply in such circumstances, the planning authority would
still be entitled to enforce within that period and problems would still arise.
Next Mr
Katkowski fixes upon the phrase ‘which relates to’ in the opening clause of
section 172(4): ‘an enforcement notice which relates to a breach of planning
control consisting in . . .’. This phrase was considered with regard to the
provisions of the 1971 Act (although not in the context of a para (c) breach)
in Peacock Homes Ltd v Secretary of State for the Environment
(1984) 48 P&CR 20 where Dillon LJ said (at p 27):
The key words
‘which relates to’ in the phrase ‘a condition or limitation which relates to
the carrying out of such operations,’ are not words of art. They are words
often used in the Act, as in other statutes, in a very general sense . . . They
may often mean little more than ‘which has to do with’.
Let us then
approach section 172(4) as if it read: ‘An enforcement notice which has to do
with a breach of planning control consisting in . . .’. That still leaves for
decision to the critical question whether para (c) is apt to apply to separate
dwellings consequent upon subdivision.
Mr Newcombe
submits, first, that in the case of subdivision, enforcement action can only be
taken against the subdivided parts and not against the original whole;
alternatively that, even if it can be taken against the whole, it should be
found immune after four years by virtue of the immunity of its parts.
On the first
limb of his submission he prays in aid the decision of the Divisional Court in Backer
v Secretary of State for the Environment (1980) 42 P&CR 98 in which
it was held that ‘the question whether section 87(3)(c) (the predecessor
to section 172(4)(c)) applies must be decided as a matter of reality on the
facts and cannot be artificially avoided or by-passed by the choice of words
adopted by the planning authority in the enforcement notice’: per
Skinner J at p 101, finding some support for that view in the use of the phrase
‘which relates to’. But that decision is, to my mind, of no direct value in the
present case because it was there accepted on all sides that the breach would
have fallen squarely within para (c) had only the authority chosen to
enforce against it as a change of use rather than as a breach of condition. In
the present case that is the very point at issue. Here, indeed, the invocation
of substance and reality and the condemnation of artificiality is common to
both sides! In short, Backer
seems to me to beg, rather than answer, the question for decision in the
present appeals.
On the second
limb of his argument, Mr Newcombe refers us to Trevors Warehouses Ltd v Secretary
of State for the Environment (1972) 23 P&CR 215, a case illustrating
the well-known Mansi principle. This is to the broad effect that steps
required to be taken by an enforcement notice to remedy a breach of planning
control should not extend to requiring the discontinuance of ancillary uses or
the cutting down of uses to the extent to which, although unlawful, they are
established and thus immune from enforcement action. Even assuming, the
argument runs, that enforcement action can be issued against the whole
building, the steps required to be taken cannot properly include anything which
involves destroying the rights established after four years which attach to the
constituent parts of the building. Once again, however, this argument
seems to me to beg the central question as to whether section 172(4)(c) applies
to cases of subdivision. If it does, the Mansi principle is not needed;
if it does not, there are no established rights to preserve.
Mr Wood, for
the respondents, submits that subdivision, as opposed to the creation of a
single dwelling, creates particular difficulties of enforcement: it both gives
rise to increased activity (creating, for instance, problems of parking and
congestion as found in the Van Dyck appeal) and yet is difficult to
monitor and detect. Parliament should not readily be thought to have intended
to include such breaches of planning control within the four-year rule. These
arguments, too, I find unconvincing. In the first place there appears a certain
inconsistency in asserting on the one hand that the consequence of subdivision
is all too evident, and yet on the other hand that it is not easily detectable.
And, second, it should not be beyond the wit of the planning authority’s
enforcement section to discover the creation of new separate dwellings, whether
by reference to the electoral register or, indeed, by counting door bells.
Mr Wood’s
central argument is that which I have already attempted to summarise: an
argument depending upon the application of the planning unit concept to the
situation as it stood before the unauthorised development took place. For
reasons I have already endeavoured to indicate, it is not an argument I feel
able to accept.
I come back,
therefore, to the language of section 172(4)(c) itself, language which,
construed in the context of sections 55(3)(a) and 336(1), is, as already
demonstrated, capable of encompassing subdivision within its protection. If a
whole house is divided into two flats, then it is perfectly possible to find
within the terms of the section in respect of each new flat a change of use of
part of the building (the original whole house) to use as a single
dwellinghouse. That, as stated, is the central thrust of the appellants’
arguments. Given that possible construction, why then should it not be adopted
so as to provide immunity to the limited extent of the four-year rule for the
new separate dwellings brought about by subdivision?
Mr Wood, for
Doncaster, submits that such a construction involves a strained reading of
section 172(4)(c), and that it would result in the application of this branch
of the four-year rule (a branch created by the 1968 Act which abolished the
rule in the great majority of cases) in circumstances in which, until
comparatively recently, no one appears to have thought it applied.
The
appellants, however, contend that the self-same considerations underlying the
undisputed application of the four-year rule to the creation of a single
dwellinghouse — namely Parliament’s desire to protect long-established
residential occupation — apply equally to the creation of more than one new residential
unit. There is, they submit, neither sense nor logic in making a distinction
between these categories; the rule should apply to the creation of all new
separate dwellings — although not, of course, to conversions giving rise to
multiple occupation with shared facilities, a different class of case
altogether.
The appellants
stress, too, the various anomalies which would result from the narrow
construction contended for by the respondents. Take
used as a dwellinghouse. Section 172(4)(c) would presumably apply: there has
been a change of use of part of the building to use as a single dwellinghouse.
Why should it be any different if two floors, or indeed all three, are converted? Would it be different again if the changes of
use occurred at different times? If so,
why? Instead of horizontal conversion of
this nature, take instead a single office building converted vertically into
one, two or three separate houses, and ask the same questions as before. Why,
in short, should some of these developments be treated differently to
others? The considerations for the new
single owners will certainly be no different.
Although I do
not pretend to have found this an easy problem to resolve, I have finally come
to accept the appellants’ central argument. Section 172(4)(c) is, I believe,
capable of being construed and applied so as to benefit all new separate
residences after four years. That being so, having regard to the broad policy which
I conceive to underlie this provision, in my judgment it should be thus
construed and applied.
It follows
that I for my part would allow both appeals. In the result I would remit
matters to the Secretary of State in the case of Van Dyck for rehearing
and determination by him. In the case of Doncaster, the decision of the
Secretary of State should be restored.
CHAPTER II
Chapter I of
this judgment was written and due to be handed down when along came Pepper
v Hart [1992] 2 WLR 1032. The appeals were promptly relisted for further
hearing and Chapter II is concerned with the arguments addressed to us
following this important decision of the House of Lords.
First, I must
set out the Parliamentary material now placed before us as bearing upon the
proper construction of section 172(4)(c). This appears in the Hansard
report of the debate on May 22 1968 on the Town and Country Planning Bill when
the Minister of Housing and Local Government, Mr Nial MacDermott, was promoting
by way of amendment the provision that eventually became section 172(4)(c). For
the opposition, Mr Hugh Rossi was proposing that para (c) should instead read:
The making
without planning permission of a change of use of any building to residential
use (rather than ‘to use as a single dwellinghouse’).
The relevant
passages in the debate are as follows:
1. At columns
664-665 the minister, explaining para (c)’s reference to a change of use to use
as a single dwellinghouse said:
The reason
for this is that changes of use to multi-occupation can have undesirable social
as well as planning consequences. They come within the general mischief in that
they are often difficult for the planning authority to detect and I understand
that there have in practice been cases of this kind of development in which the
four-year rule has been a barrier, preventing the planning authorities from
exercising the control which is
abuse which can lead to an area’s deterioration into a slum or near slum and I
hope that the House will agree that this is a proper limitation.
2. At column
671 Mr Rossi said:
There is no
such class use in the Planning Acts as a single dwelling-house. The class use
is residential use . . . Is the Minister suggesting that there can be more
concealment for multi-occupation than for single occupation?
3. The
minister responded:
I should have
thought that it is very clear that if a building is used for residential
purposes it is fairly readily observable, but one does not know how many people
are living there.
4. At columns
671-672 Mr Rossi continued:
I concede at
once that multi-occupation, particularly in our running twilight areas, is a
great social evil which must be cured, but I suggest that it must be cured by
redevelopment plans by housing associations or local authorities. . . .
Multi-occupation may be treated in other ways under other legislation. I
believe that the recent White Paper has something to say about problems of
multi-occupation and over-crowding.
I ask the
Minister to consider the case of a shop with storerooms over it, all housed in
one building. If the shopkeeper decides to change the user of part of the
premises for residential accommodation for one or two members of his staff, he
will be in breach of this provision. He will not be protected by the four-year
rule. They are housed within one building, he is creating residential
accommodation, and yet he is not protected by it. I ask the Minister to
consider the further ramifications that the restriction . . . might well have.
5. At column
675 the minister concluded thus:
I have
pointed out the social evil which will result. It is not something new. I am
not inventing the idea of a single dwellinghouse as a separate class. Section
12(3) of the 1962 Act provides:
‘For the avoidance of doubt it is hereby
declared that for the purposes of this section —
(a) the use as two or more separate
dwellinghouses of any building previously used as a single dwellinghouse
involves a material change in the use of the building and of each part thereof
which is so used.’
— That, of
course, is the present section 55(3)(a) —
It already is
a breach of planning control to convert from a single dwellinghouse to a
multiple dwellinghouse, and for the social reasons I have outlined I suggest
that it would be wise not to subject such a breach to the constraint of the
four-year rule.
Before turning
to the argument I must refer to the speeches in Pepper v Hart
and, in particular, the threefold test now held to govern the use of Parliamentary
material of this kind. It appears in the speech of Lord Browne-Wilkinson (with
which the majority of the other members of the House agreed) at p 1061E as
follows:
. . . the
exclusionary rule should be relaxed so as to permit reference to Parliamentary
materials where (a) legislation is ambiguous or obscure, or leads to an
absurdity; (b) the material relied upon consists of one or more statements by a
minister or other promoter of the Bill together if necessary with such other
Parliamentary material as is necessary to understand such statements and their
effect; (c) the statements relied upon are clear.
As to
condition (c), Lord Browne-Wilkinson had a little earlier, at p 1060C, said:
The purpose
of looking at Hansard will not be to construe the words used by the
minister but to give effect to the words used so long as they are clear.
Two other
passages in the speeches I have found helpful in illuminating the proper
approach to condition (c): Per Lord Bridge of Harwich at p 1039H:
It should, in
my opinion, only be in the rare cases where the very issue of interpretation
which the courts are called on to resolve has been addressed in Parliamentary
debate and where the promoter of the legislation has made a clear statement
directed to that very issue, that reference to Hansard should be
permitted.
Per Lord Oliver of Aylmerton at p 1042H:
. . .
relaxation . . . can apply only where the expression of the legislative
intention is genuinely ambiguous or obscure or where a literal or prima facie
construction leads to a manifest absurdity and where the difficulty can be
resolved by a clear statement directed to the matter in issue.
As to
condition (a), I myself have not the least doubt that it is satisfied in the
present case. True, the first submission of each of the three counsel appearing
before us was that para (c) unambiguously surrenders the meaning for which he
contends. But the fact that these contentions are inconsistent with each other
and that various experienced judges at first instance have reached differing
conclusions upon the point, quite apart from the very real doubts which I
myself experienced in writing Chapter I of this judgement, lead me to conclude
that this provision is, indeed, properly to be characterised as both ambiguous
and obscure.
Condition (b)
is plainly satisfied, the statements relied upon being those of the minister
promoting the relevant amendment to the Bill.
It is upon
condition (c) that the argument has centred.
Mr Wood, for
Doncaster, argues that the report of the debate read as a whole clearly reveals
that the minister was using the phrases ‘multi-occupation’ and ‘multiple
dwellinghouse’ to refer to all forms of multiple
submits, not merely accords with the ordinary use of language but is perfectly
apparent from the minister’s concluding remarks in which he quoted what is now
section 55(3)(a) and immediately continued:
It already is
a breach of planning control to convert from a single dwellinghouse to a
multiple dwellinghouse and . . . it would be wise not to subject such a
breach to the constraint of the four-year rule.
(Counsel’s
emphasis.) The minister was clearly
regarding a section 55(3)(a) breach as falling outside the protection of the
four-year rule. For good measure, Mr Wood points out that that response
followed upon the earlier passage in which Mr Rossi, giving the illustration of
the shopkeeper changing the use of part of shop premises to residential
accommodation, made plain his own understanding — consistent with Doncaster’s
case — of the effect of the proposed legislation, an understanding which the
minister’s response conspicuously left undisturbed.
Mr Katkowski,
for the Secretary of State, submits to the contrary that the terminology used
by the minister — his many references to ‘multi-occupation’ and his final
reference to ‘multiple dwellinghouse’ — taken together with the specific
reasons which he gave for excluding certain types of residential use from the
benefit of the four-year rule — first, the difficulty of detecting such change
of use through not knowing how many people live in particular premises; second,
the fear of areas deteriorating into slums — clearly indicate that the
Government’s concern in promoting what is now section 172(4)(c) was to ensure
that the four-year rule applied not to multi-occupation as that term is
generally understood, but only to separate and self-contained units of
occupation.
Mr Newcombe,
on behalf of the Van Dycks, advanced an interesting, if somewhat difficult,
argument which emphasised the distinction between, on the one hand, dwellinghouses
in multiple occupation (such as those considered in what at the date of this
debate were the relatively recent decisions in Birmingham Corporation v Habib
Ullah [1964] 1 QB 178 and Ealing Corporation v Ryan [1965] 2
QB 486) and, on the other hand, houses in multiple occupation such as had been
under consideration in Okereke v Brent London Borough Council
[1967] 1 QB 42. Mr Newcombe’s central contention was that in his final response
the minister was, first, by quoting section 12(3) of the 1962 Act, meeting Mr
Rossi’s suggestion that he had invented the idea of a ‘single dwellinghouse’,
and then, turning to a quite separate matter, identifying multiple occupation (as
opposed to subdivision) of dwellinghouses as the particular feature of
residential user which the Government were intent on excluding from the
protection of the four-year rule.
My conclusions
upon the matter are these:
1. The
minister was clearly under the impression that section 172(4)(c) would not
avail breaches of planning control consisting of subdivision (section 55(3)(a)
cases) or even changes of use of part of a building (Mr Rossi’s
example).
2. That,
however, was no more than an assumption on the minister’s
concerned him and whose exclusion from the four-year rule he was specifically
addressing.
3. The
minister’s final remarks were necessarily extempore responses to various
points raised by Mr Rossi during the debate. Although I reject Mr Newcombe’s
suggestion as unacceptably far-fetched — the suggestion that the minister was
invoking section 12(3) simply to justify his proposed use of the term ‘single
dwellinghouse’ and, when referring to conversion ‘from a single dwellinghouse
to a multiple dwellinghouse’, was then intending to describe some quite
different breach of planning control — I certainly do not find in this crucial
passage the clarity for which Pepper v Hart requires us to
search, still less a clear statement directed to the very matter in issue: the
application or otherwise of the four-year rule, not merely to multi-occupation
generally, but to subdivision into separate flats in particular.
For my part,
therefore, I would hold the Pepper v Hart test to be unsatisfied
here with the result that the Parliamentary material now before us must be put
aside and the appeals determined on the basis indicated in Chapter I of this
judgment.
FARQUHARSON
LJ: I agree with both chapters.
DILLON LJ: I also agree with both chapters.
Appeals
allowed with costs in Court of Appeal and below; legal aid taxation for the Van
Dycks; Van Dyck’s case remitted to the Secretary of State for rehearing and
determination; decision of the Secretary of State in Doncaster restored;
application for leave to appeal to the House of Lords refused.
