Enforcement notices — Mansi doctrine — Town and Country Planning Act 1990 — Town and Country Planning (General Permitted Development) Order 1995 — Whether inspector required to amend enforcement notice to safeguard uses permitted by GPDO 1995
In 1997 the second respondent council issued an enforcement notice
alleging a material change in use, without planning permission, of the whole of
a planning unit owned by the appellant to a mixed use of agriculture, the
parking of motor vehicles and the holding of markets and/or car boot sales. The
appellant’s appeal to the first respondent Secretary of State was dismissed by
an inspector, who upheld the enforcement notice. The appellant appealed, under
section 289 of the Town and Country Planning Act 1990, on the ground that the
inspector failed to amend the enforcement notice to provide for uses permitted
by the Town and Country Planning (General Permitted Development) Order 1995.
Dismissing the appeal, Judge Rich QC decided that although the rule in Mansi
v Elstree Rural District Council (1964) 16 P&CR 153 remained good
law, it was not necessary to amend an enforcement notice to take account of
temporary uses permitted under the GPDO 1995. The appellant appealed.
The cornerstone of the judgment in R v Harfield
[1993] 2 PLR 23 is that no enforcement notice can take away legally permitted
rights. All else flows from that central proposition. It is based upon the Mansi
rule; Mansi remains good law and those guiding principles governed the
case. There was no need to amend the enforcement notice to refer to the GPDO
because it operates as a matter of law within parameters defined by the order.
A purposive construction of section 179 of the 1990 Act is to be preferred. The
purpose to be served was to confine the activity that was to cease to the
activity that constituted the breach of planning permission. That was the
holding of permanent markets and/or car boot sales. The notice could not
be lawfully construed so as to make a criminal offence out of lawful activity.
GPDO activity is lawful activity. The purpose of section 181 is to make plain
that the enforcement notice operates permanently and does not cease to have
effect once there has been compliance with its terms. The appellant was
entitled to use his land for GPDO purposes once he had ceased the permanent
purposes prohibited by the enforcement notice. The enforcement notice was clear
and required no amendment.
Mansi v Elstree Rural District Council (1964) 62
LGR 172; 16 P&CR 153; [1964] EGD 366; 189 EG 341, DC
R v Harfield [1993] 2 PLR 23; [1993] JPL 914, CA
Appeal against the judgment of Judge
Rich QC (sitting as a judge of the High Court)
This was an appeal by Ronald M Duguid against a decision of Judge
Rich QC (sitting as a judge of the High Court) dismissing his appeal against
the decision of the Secretary of State for the Environment, Transport and the
Regions, by his inspector, dismissing an appeal against an enforcement notice
issued by West Lindsey District Council.
for the appellant, Ronald M Duguid.
the first respondent, the Secretary of State for the Environment, Transport and
the Regions.
WARD LJ:
Problem
When he allowed the appellant leave to appeal, Judge Rich QC
(sitting as a High Court judge of the Queen’s Bench Division) stated as his
reasons for that decision that there was an ‘arguable point on new provisions
of [the Town and Country Planning Act 1990] of some general importance’ to a
recurrent problem of how to safeguard an established or permitted use of land
to which a landowner could revert after an enforcement notice had required him
to discontinue other uses of the land in breach of planning control.
Lie of the land
We are concerned with part of the old RAF airfield at Hemswell in
Lincolnshire. The RAF still occupies part of the property, but much of it has
passed into private ownership. The appellant, Mr Ronald Duguid, acquired some
18ha of the disused airfield in 1983. It was put to agricultural use, which is
the permitted use for the land. In about November 1989 part of the land was
first used for the purpose of car parking to serve the former technical site on
the airfield. An application for planning permission for the construction of a
car park was, however, refused. Nevertheless, the car parking continued and, in
1992, hard-standing roadways were constructed to facilitate that use. Part of
the site also became used by a tenant for Sunday markets, and, when the tenancy
ended towards the end of 1993, the appellant later reopened the operation
himself and continued to use the site for Sunday markets and the parking of
motor vehicles. An application for permission to continue
use of the land for car parking was refused in November 1995. On 12
February 1996 the local council, West Lindsey District Council, issued an
enforcement notice to stop the use of the land for the holding of the markets
and car boot sales. The appellant appealed against that enforcement notice and
a public inquiry was held, but, on 12 March 1997, the inspector dismissed that
appeal.
It would appear that the appellant continued to use the enforcement
site for the parking of motor vehicles after the time for compliance had
passed, but at least he relocated the market and car boot sale enterprise to
another area of his land, to the west of the site that had been identified in that
enforcement notice. He installed portable toilets and connected septic tanks.
On other parts of his property he continued the agricultural use, growing
cereals and other arable crops.
As the director of development services reported to the planning
committee on 6 August 1997:
22. From investigations carried out by the enforcement officer,
immediately before and after the compliance date within the previous
enforcement notice, it appears that, by fact and degree the current use of the
site is a material change of use and the whole planning unit has a mixed
agricultural cereal growing use and use for car parking and Sunday markets…
23. Whilst the site owner has relocated the market to land outside
the area covered by the previous enforcement notice, I am of the opinion that a
breach of planning control continues to take place. To prevent the market and
parking being shifted to different areas within the site it is recommended that
the whole planning unit be enforced against as indicated on the plan
accompanying this report.
His recommendation was accepted, and the council considered it
expedient to issue an enforcement notice on 23 December 1997 relating to the
appellant’s land at Gainsborough Road, Hemswell Cliff, Lincolnshire.
The relevant terms of that notice were as follows:
3. THE MATTERS WHICH APPEAR TO CONSTITUTE THE BREACH OF PLANNING
CONTROL.
Without planning permission, change of use of the land from use
for agriculture to mixed uses of:– (i) agriculture (ii) parking of motor
vehicles and (iii) holding markets and/or car boot sales.
4. REASONS FOR ISSUING THIS NOTICE.
It appears to the Council that the above breach of planning
control has occurred within the last ten years.
The site is located within an area of open countryside wherein it
is the policy of the District Planning Authority that development will be
strictly controlled… and will only be permitted where essential to the needs of
agriculture… or which otherwise is in accordance with specific adopted
policies. The use of the site for holding Sunday markets, car boot sales and
car parking is in conflict with Structure Plan policy 97 and West Lindsey Local
Plan Deposit Draft Policy C1, and is alien and highly intrusive, completely
destroying the open character of the site itself, and seriously detracting from
the appearance of the wider rural area.
The Council do
not consider that planning permission should be given, because planning
conditions could not overcome these objections.
5. WHAT YOU ARE REQUIRED TO DO.
(i) stop using any part of the land for the purpose of parking
motor vehicles
(ii) stop using any part of the land for the purposes of holding
markets and/or car boot sales
(iii) remove from the land the portable toilet… and the connected
septic tank
(iv) remove from the land the four hardstanding roadways and
linking roads constructed in connection with motor vehicle parking…
(v) following the removal of the hardstanding roadways and septic
tank… seed the said parts of the land with grass.
6. TIME FOR COMPLIANCE
(i) and (ii) 1 month after this notice takes effect.
(iii) 6 weeks after this notice takes effect.
(iv) 3 months after this notice takes effect.
(v) 9 months after this notice takes effect.
7. WHEN THIS NOTICE TAKES EFFECT.
This notice takes effect on 16th February 1998, unless an appeal
is made against it beforehand.
Mr Duguid exercised that right of appeal on the grounds provided by
section 174(2)(a), (b), (c), (d), (f) and (g) of the 1990 Act. Mr William J
Weeks FRICS was appointed by the Secretary of State for the Environment to
determine the appeal. He held an inquiry into the appeal on 11 August and 2
September 1998. He made two inspections and he dismissed the appeal, upheld the
notice, varied only by extending the periods for compliance, and he refused to
grant planning permission on the application deemed to have been made under
section 177(5) of the Town and Country Planning Act 1990, as amended.
For present purposes, it is material to record how the planning
enforcement officer dealt with a ground of the appeal that there was no breach
of planning control. In his written evidence to the inspector he said:
5.1 By fact and degree the activities taking place on the land
within the enforcement site on Sundays, the use of the land on other days and
the permanent appearance of the land used for the market and parking, ie
planting of hardwearing turf, white painted lines, advertisements displayed,
located toilet connected to a septic tank, the white metal post, the hardcore
and compounded earth roadways have the appearance of a permanent market site.
5.2 The use is not seen as a temporary use granted planning
permission by Article 3 and Class B of Part 4 of Schedule 2 of the Town and
Country Planning (General Permitted Development) Order 1995, but a material
change of use.
Under that order (the GPDO), a temporary change of use is
authorised for any purpose for not more than 28 days in total in any calendar
year, of which not more than 14 days in total may be for the purposes of the
holding of a market or car boot sale. As I understand it, no application was
made to the inspector to amend the enforcement notice in order
specifically to deal with any use of the land pursuant to the GPDO.
With the leave
of Mr Malcolm Spence QC (sitting as a deputy High Court judge of the Queen’s
Bench Division), Mr Duguid none the less appealed, contending in his notice of
application:
3. The evidence led by the West Lindsey District Council… was to
the effect and purpose that the market enforced against was a permanent market
held on the land on Sundays and other days. That is, a use not seen as a
temporary use granted planning permission by (the GPDO) but a material change
of use without the benefit of planning permission to a permanent use for
markets.
4. In the circumstances of the case and by reason of the rule in Mansi
v Elstree RDC [1964] as applied or extended in Monomart (Warehouses)
Ltd v SS (1977) 34 P&CRP 305; DU & Others v SS
(1980) 78 LGRP 27; NeMTort v SS (1980) 40 P&CR p 261; Cord
v SS & Torbay BC [1981] JPL p40; this was a case where the inspector
was required in law to see to it that the requirements of the enforcement
notice did not prohibit any use or activity which Mr Duguid was or is entitled
to carry on the land by virtue of any provision of the relevant legislation
namely, the Town and Country Planning Act 1990; including the holding of 14 one
day markets on the land by virtue of planning permission granted under Section
58(1)(a) and… (the GPDO).
5. Accordingly the decision of the Secretary of State by his
inspector should be remitted by the court to the Secretary of State… for
rehearing and determination by him with the court’s opinion that the
requirements of the enforcement notice to stop using any part of the land for
the purpose of holding markets and/or car boot sales be amended in such a
manner as to safeguard from that prohibition the permitted development rights granted
under (the GPDO) to use the land for the holding of markets on not more than 14
days in any calendar year.
On 12 November 1999 Judge Rich QC dismissed that appeal, but gave
leave to appeal to us, as I have already set out.
Judgment of Judge Rich QC1
The learned judge considered the cases referred to and also R
v Harfield [1993] 2 PLR 23, where the Court of Appeal (Criminal
Division) concluded that the enforcement notice, properly construed, did not
make the permitted ancillary use a use in contravention of the notice. He said
at p709:
This refusal, I think, leaves Mansi as good law…
The Court did not refer to section 93, which seems to me clearly
to justify the distinction, which it in fact made. But for that section,
discontinuance of the use would satisfy the requirements of the enforcement
notice and resumption would not constitute a contravention of the notice.
Section 93(1) however provides that the discontinuance of the use ‘shall not
discharge the enforcement notice’ and by subsection (2) it is provided that ‘…
any provision of an enforcement notice requiring a use of land to be
discontinued shall operate as a requirement that it shall be discontinued
permanently to the extent that it is in contravention of Part III of this
Act; and accordingly the
resumption of that use… after it has been discontinued in
compliance with the enforcement notice shall to that extent be in contravention
of the enforcement notice (again my [Judge Rich’s] italics). The enforcement
notice prohibited the resumption of the use only to the extent that it is in
contravention of Part III, which because of the permission for the petrol
station use, parking ancillary to the use of the land as a petrol station was
not.
There is no contravention of Part III, if planning permission has
been granted whether on application or by the GPDO or for resumption after
enforcement of the last lawful use: see section 57 of the Act.
So far as the use with which the Appellant in this case is
concerned, a GPDO permission for a temporary use can only begin in a calendar
year when there have not already been more than 14 days of market use. It
follows that it would be necessary to discontinue the more permanent market use
against which the enforcement notice was directed before the permitted temporary
use could be begun. Thus on the basis of the decision of the Court of Appeal in
Harfield, no risk of prosecution would arise if such temporary, 14-day
use was begun, after discontinuance of the more permanent use, and there would
be no need to amend the enforcement notice in order to safeguard the
possibility of such use…
That conclusion is independent of any identification of a material
difference between the market use enforced against, which the Inspector
accepted had indicia of permanence some of which the enforcement notice
also required to be removed, and the permitted 14-day use. Such distinction may
well, on the facts of this case, have justified the failure to incorporate into
the enforcement notice words safeguarding the materially different 14-day use,
irrespective of the effect of section 181(2) of the Act of 1990 as section
93(2) of the Act of 1971 has now become.
…
Sub-section (6) of section 179 had, as originally enacted, so far
as material reproduced section 489(5) of the 1971 Act. It thus had imported,
for the purpose of identifying a contravention of the notice, section 181,
which reproduces section 93 of the 1971 Act, which remains unamended. Section
179 as now substituted by the 1991 Act is in completely different terms. It
defines breach of an enforcement notice in subsection (1) as follows:
‘Where, at any time after the end of the period for compliance
with an enforcement notice… any activity required by the notice to cease is
being carried on, the person who is then the owner of the land is in breach
of the notice.’
By subsection (2) it is provided that ‘where the owner of land is
in breach of an enforcement notice he shall be guilty of an offence.’ The
formulation of the definition of breach by reference to the carrying on of the
activity ‘at any time’, seems to render unnecessary the provision of section
181 in continuing the effect of the notice after initial compliance, so as to
make resumption ‘to the extent that it is in contravention of Part III’ a
contravention of the enforcement notice.
If, however section 179 as now substituted were construed as
rendering section 181(2) otiose, it would be necessary, in order to safeguard
even a GPDO use, to exclude such use from the ‘activity required by the notice
to cease’. I have searched the Carnwath Report (Enforcement of Planning
Control HMSO, February 1989) on which the relevant parts of the 1991 Act
were based, to identify some mischief which might justify such construction. I
do not think that the substitution of the new section 179 was intended to have
such effect, and would not so construe it unless there were no other proper
construction. I think that the difficulty is resolved if one asked
what is meant by ‘is being carried on’? Section 181(2) remains in force and
must be given meaning and effect. It has no other function than to define the
uses that may not be resumed without involving a contravention of the
enforcement notice. It is only resumption ‘to that extent’, (that is ‘to the
extent that it is in contravention of Part III’), that constitutes a
contravention of the enforcement notice. If the use is not in such
contravention then, in my judgment, when it is resumed, it is not, for the
purposes of section 179(1), ‘the activity required by the notice to cease’, and
therefore on resumption it is not the same activity which ‘is being carried
on’.
For these reasons I conclude that it is not necessary to amend the
enforcement notice in order to safeguard the Appellant’s right to carry on a
14-day market as permitted by the GPDO and accordingly the appeal should be
dismissed.
1[2000] JPL 704
Issues arising on the appeal
I cannot dispel the nagging fear that there is an Alice in
Wonderland quality to this appeal, although I hasten to add that I do not
intend to be critical of counsel and their instructing solicitors in saying so.
The formal issue has to be whether the inspector erred in not somehow amending
the enforcement notice expressly, to provide that the use of the land that it
was required should stop did not include use of the land in accordance with the
GPDO. Since the appeal to him on ground (f) of section 174(2) did not advance
any argument that the notice should be amended, he can hardly be blamed for not
doing so, and, on one view of the matter, that is the end of any appeal against
his decision letter. The real reason for this appeal is said to be to protect
the appellant from a risk of prosecution for use of the land within the GPDO,
Mr Timothy Comyn submitting that, in the light of the learned judge’s judgment,
there are now doubts as to whether Mansi and Harfield can stand
authoritatively after the amendments made to the 1990 Act. The air of unreality
pervading the appeal arises because counsel, if I have correctly understood
them, seem virtually agreed that these doubts are quite unfounded.
Legislative provisions
The Town and Country Planning Act 1990 replaced the Town and
Country Planning Act 1971. For all practical purposes relating to this appeal,
the relevant provisions are not materially different in substance and effect.
The changes that troubled the judge arise from the amendments to the 1990 Act
made by the Planning and Compensation Act 1991, which implemented certain
recommendations made by Robert Carnwath QC, as he then was, in his report
entitled ‘Enforcing Planning Control’ (HMSO February 1989). I must pinpoint
those changes. I will, however, state the law as it is, that is to say, the
1990 Act as amended. The scheme of Part VII dealing with enforcement is as
follows:
Section 172
(1) The local planning authority may issue a notice (in this Act
referred to
as an ‘enforcement notice’) where it appears to them —
(a) that there has been a breach of planning control…
Section 171A
(1) For the purposes of this Act —
(a) carrying out development without the required planning
permission…
…
constitutes a breach of planning control.
Section 173
(1) An enforcement notice shall state —
(a) the matters which appear to the local planning authority to
constitute the breach of planning control…
…
(3) An enforcement notice shall specify the steps which the
authority require to be taken, or the activities which the authority require to
cease, in order to achieve, wholly or partly, any of the following purposes.
(4) Those purposes are —
(a) remedying the breach by… discontinuing any use of the land or
by restoring the land to its condition before the breach took place…
…
(5) An enforcement notice may, for example, require —
(a) the alteration or removal of any buildings or works;
…
(c) any activity on the land not to be carried on except to the
extent specified in the notice…
It will be seen that ‘the activities which the authority require to
cease’ must be for the purpose of ‘discontinuing any use of land’. The language
of the unamended 1990 Act is different. Section 173, before the amendment,
provided that:
(2) An enforcement notice shall also specify —
(a) any steps the local planning authority require to be taken in
order to remedy the breach;…
…
(3) In this section ‘steps to be taken in order to remedy the
breach’ means… steps…
…
including —
(ii) the discontinuance of any use of land…
The nomenclature has changed, but there is no significant change of
substance.
Section 174 gives a right of appeal to the inspector, and the
relevant ground is in section 174(2)(f):
that the steps required by the notice to be taken, or the
activities required by the notice to cease, exceed what is necessary to remedy
any breach of planning control which may be constituted by those matters…
Section 179 creates the offence where the enforcement notice is not
complied with. It provides:
(1) Where, at
any time after the end of the period for compliance with an enforcement notice,
any step required by the notice to be taken has not been taken or any activity
required by the notice to cease is being carried on, the person who is then the
owner of the land is in breach of the notice.
(2) Where the
owner of the land is in breach of an enforcement notice he shall be guilty of
an offence.
…
(4) A person who has control of or an interest in the land to
which an enforcement notice relates (other than the owner) must not carry on
any activity which is required by the notice to cease or cause or permit such
an activity to be carried on.
(5) A person who, at any time after the end of the period for
compliance with the notice, contravenes subsection (4) shall be guilty of an
offence.
Section 179 was originally couched in different language similar to
section 89 of the 1971 Act. The original provision was:
179(1).– Where…
(a) a copy of an enforcement notice has been served… and
(b) any steps required by the notice to be taken (other
than the discontinuance of a use of land) have not been taken within compliance
period,
then… that person shall be guilty of an offence.
…
(6) Where, by virtue of an enforcement notice —
(a) a use of land is required to be discontinued…
…
then, if any person uses the land… in contravention of the notice,
he shall be guilty of an offence.
Once again, I cannot see any material difference between the
offence established by carrying on an activity required by the notice to cease
and making some use of the land that was required to be discontinued. I will
deal later with the significance, if any, of the addition in the amended
section 179 of the words ‘at any time’.
Section 180 deals with the effect of planning permission etc on
enforcement or breach of the enforcement notice. It provides that where, after
service of the notice, planning permission is granted for any development
carried out before the grant of that permission, the notice shall cease to have
effect so far as inconsistent with that permission, although the liability of
any person for an offence in respect of a previous failure to comply is
unaffected. I must look at section 181 in more detail. It provides:
(1) Compliance with an enforcement notice, whether in respect of —
(a) the completion, removal or alteration of any buildings or
works;
(b) the discontinuance of any use of land; or
(c) any other requirements contained in the notice,
shall not discharge the notice.
(2) Without prejudice to subsection (1), any provision of an
enforcement notice requiring a use of land to be discontinued shall operate as
a requirement that it shall be discontinued permanently, to the extent that it
is
in contravention of Part III; and accordingly the resumption of
that use at any time after it has been discontinued in compliance with the
enforcement notice shall to that extent be in contravention of the enforcement
notice.
The 1991 Act made no amendment of any significance — it substituted
‘removal’ for ‘demolition’ in section 181(1)(a).
Relevant authorities
I do not propose to examine the several cases referred to in the
notice of application for leave to appeal against the decision letter, nor to
comment upon Judge Rich’s analysis of them. Counsel did not demand that of us.
In my judgment, it is sufficient to inquire, first, whether the so-called ‘Mansi
doctrine’ has survived the 1991 changes. Mansi v Elstree Rural
District Council (1964) 16 P&CR 153 concerned land upon which primary
use was made of a number of glasshouses, but where there was a long-established
subsidiary use of part of the land, including one of the glasshouses, for
retail sales of nursery produce and other articles. The appellant then
intensified the latter use until the glasshouse became primarily a shop. The
local planning authority served an enforcement notice reciting that the
appellant had changed the use of the glasshouse from use for agricultural
purposes to use for the sale of goods, and requiring the appellant to
discontinue the latter use. No reference was made in the notice to the former
subsidiary use, nor was there any provision for its continuance. On appeal, the
appellant contended that the notice purported to restrict the appellant’s
activities further than it legitimately might, by forbidding even the use for
retail sales as a subsidiary use. The judgment of the Divisional Court was
given by Widgery J, who, of course, brought a far greater experience of this field
to his judgments than I have been able to command in mine. Of the issue
identified above, he said at p161:
Mr Shaw’s other point, of course, is on very much stronger ground
— indeed, it seems to me quite unanswerable — when he alleges that the notice
in the form in which it was served went too far. On the Minister’s own finding,
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. It seems to me that when this
matter was before the Minister, the Minister should have recognised that a
notice requiring discontinuance of all sale of goods went too far and that 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, as the Minister himself had
found. True that use was a subsidiary one, but nevertheless it should be
protected and, in my judgment, this appeal should be allowed to the extent
that the decision in question should be sent back to the Minister with a
direction that he ought to amend the notice so as to safeguard the appellant’s
established right as found by the Minister to carry on the retail trade in the
manner and to the extent to which the Minister has found it was carried on in
1959.
(Emphasis added.)
For my part, I entertain no doubt that the passages I have
highlighted remain perfectly good law, and they are crucial to this appeal.
The next authority of relevance is R v Harfield
[1993] 2 PLR 23, a decision of the Court of Appeal (Criminal Division). There,
the appellant was charged on indictment with using his land for the parking of
commercial vehicles in contravention of an enforcement notice, contrary to
section 89(5) of the Town and Country Planning Act 1971, which became section
179(5) of the 1990 Act before its amendment. The requirements of the notice
were to ‘discontinue the use of land for the parking of commercial vehicles’
and to remove from the land all commercial vehicles. An appeal against the
notice was withdrawn, although the appellant reserved his right to contend that
parking commercial vehicles, which was ancillary to use of the land as a petrol
filling station, should be permitted. At his trial, he was not allowed to lead
evidence that the parking alleged in the indictment was such an ancillary use.
Latham J gave the judgment, saying at p30:
In his ruling, the judge was also influenced, as it appears to us,
by the fact that the enforcement notice on its face required the appellant to
remove from the land all commercial vehicles and quite clearly, and on his own
admission, he had not done so. The charge, however, was not brought under
Section 189(1) of the Act, that is a charge of failing to take any steps
required by the notice, but under Section 89(5) of the Act, namely that the
appellant was making a use of the land which he had been required to
discontinue. It is accepted by counsel for the respondent that any use which is
ancillary to a permitted primary use is itself permitted without the need for
any separate planning permission: see Trio Thames Ltd v Secretary of
State for the Environment [1984] JPL 183. No enforcement notice can take
away these legally permitted rights: this has been referred to before us as
the Mansi doctrine. More important, the authorities clearly establish
the proposition that any enforcement notice will be construed so as to
retain any such rights; and although in some appeals against enforcement
notices which appear to have taken away such rights, inspectors, or the
Secretary of State, have inserted a saving clause in respect of ancillary uses,
the courts have made it clear that this is not strictly necessary. The
rights are always retained.
(Emphases added.)
In my view, the judgment has a logical cohesion that enables it to
stand alone, and I do not understand why its integrity is in any way dependent
upon, or linked to, section 93 of the 1971 Act, now section 181. The
cornerstone of the judgment is that no enforcement notice can take away legally
permitted rights. All else flows from that central proposition. It is based
upon Mansi: Mansi remains good law, and those guiding principles
govern the case before us.
Conclusions
If I accept Miss Alice Robinson’s short answer to the appeal, and I
do, then, applying the Harfield approach, and asking whether GPDO rights
are retained, the short answer is that they are, and so the appellant should
not
be at risk of prosecution if, having discontinued the permanent use
of his land for the Sunday markets and car boot sales, he then holds no more
than 14 such markets in any one calendar year.
A longer answer is obtained by working through the statutory
scheme. An enforcement notice can only properly be issued where there has been
a breach of planning control: section 172(1)(a). The activity that the
authority can require to cease is that use of the land that, it must follow,
constitutes that breach of planning control. The local authority would have no
power to require the cessation of any use of the land that is lawful use. Their
powers are limited to, and circumscribed by, the Act. A breach of planning
control is constituted by carrying out development of the land without the
required planning permission: section 171A(1)(a). If he were to act within the
scope of the GPDO, the appellant would act within, not without, permitted
planning permission: sections 58 and 59. Because use within the GPDO is
permitted use, it is lawful use, and we are back to Mansi and Harfield.
The enforcement notice cannot take away legally permitted rights of use.
I appreciate that in Mansi the decision in question was sent
back to the minister with a direction that he should amend the notice to
safeguard the appellant’s established right, as found by the minister, to carry
on the retail trade in the manner and to the extent that the minister had found
to have been the old established use. In that case, it made obvious good sense
to do so. Having found what use was to be treated as established use, ’twere
well that the minister define it to avoid any future argument as to the extent
of that which he found. There is, by contrast, absolutely no need at all to
refer to the GPDO, because it operates as a matter of law within parameters
that are certain, being those defined by the order itself. The local planning
authority and the inspector were right to apply the KISS principle to this
notice by keeping it short and simple.
Having already offended that principle myself, both in terms of the
length and content of this judgment, I still have to deal with the amendments
to section 179. Three points arise. The first is the effect of those changes.
They simplified an otherwise quite complex set of provisions, in which there
were distinctions to be drawn between an ‘original owner’ and a ‘subsequent
owner’ and the shifting of liability between them. There was a change to the
format of the offences, but I see no significant difference arising out of the
way the offences are now grouped and defined. Engaging in ‘activity required by
this notice to cease’ is not materially different in substance from making ‘a
use of land’ that was ‘required to be discontinued.’
The second point is that if the section is literally
applied, then the offence may be said to have been committed whenever he held a
market or car boot sale after the cessation of the permanent use, even if it
were within what would have been permitted by the GPDO, because the ‘activity
required by the notice to cease’ was ‘using any part of the land for the
purposes of holding markets and/or car boot sales’. But a literal construction
is the wrong construction. The purposive construction is to be preferred. The
purpose to be served is to confine the activity that is to
cease to the activity that constitutes the breach of planning
permission. That was, it is common ground in this case, the holding of permanent
markets and/or car boot sales. The notice cannot be construed so as to make a
criminal offence out of lawful activity. GPDO activity is lawful activity. It
is legitimate to conduct it.
Third, there is the introduction of the words ‘at any time’, which
troubled the judge and led him to wonder whether section 181 had been rendered
otiose. I do not share that concern. The words simply made clear that time
begins to run after the end of the period for compliance with the enforcement
notice. No offence is committed before then. I confess I have failed to
understand why section 181 has to be ‘imported’ into section 179. Section 181
has its own proper part to play in the scheme. The purpose of section 181 is to
make plain that the enforcement notice operates permanently and does not cease
to have effect once there has been compliance with its terms. It is right that
that should be separately stated. It would be unsatisfactory to leave that
important principle in the air, to be deduced only from the use of the words
‘at any time’ in a section that has the sole function of creating criminal
offences.
Looking at the terms of section 181, it seems to me that the
conclusions I have already reached are supported by the language of the
section, although, in my view, those conclusions are not necessarily solely
dependent upon it. What must be discontinued permanently is that use of the
land that the enforcement notice required to be discontinued, but only ‘to
the extent that it is in contravention of Part III‘. This serves to confirm
the analysis I have already made of the preceding sections, to the effect that
it is breaches of planning permission that are not countenanced, whereas uses
with planning permission are not caught by the enforcement notice. Accordingly,
as section 181(2) provides, ‘resumption of that use’, ie resumption of
the unlawful use in breach of planning control, ‘at any time after it (the
unlawful use) has been discontinued in compliance with the enforcement notice shall
to that extent‘(ie to the extent that it is in contravention of Part III,
or, in other words, to the extent it is use without planning permission,
and, by implication, to that extent only and to no other extent) continue to be
in contravention of the enforcement notice. In my judgment, it all hangs
together.
The result is hardly a surprise. The appellant is entitled to use
his land for GPDO purposes once he has indicated that he has ceased to use it
for, and has in fact discontinued, the permanent purposes prohibited by the
enforcement notice. The enforcement notice is clear and certain and requires no
amendment. If the appellant has gained anything by delaying the inevitable
curtailing of his business, and by such consolations as he can derive from this
judgment, then he will be happy, even though his appeal has to be dismissed. It
must be rare that one wins although one loses.
JUDGE LJ: I agree.
BELL J: I agree.
Appeal dismissed.
