Site occupied by one-man company – Owner of company appealing against enforcement notice – Council disputing appellant’s right to appeal – Whether appellant a “relevant occupier” – Appellant relying on use for more than 10 years – Whether appellant estopped by representations as to use made nine years previously by freeholder
From 1984, land including a workshop at Westhorpe Farm, Little Marlow, Bucks, was occupied by a tenant company, of which the second respondent (B) was the principal shareholder. On 16 June 1986 the landowner, responding to an enquiry from the appellant council, wrote to the planning officer, informing him that the workshop was being enlarged in order to facilitate its existing use for the repair and maintenance of gravel pit machinery used by a mineral operator on the farm. The officer took no further action, having concluded from that letter that the works were ancillary to the permitted use for mineral extraction. In December 1995 the council served an enforcement notice alleging that the workshop was being used for engineering purposes unconnected with such permitted use. B appealed, contending that no enforcement action could be taken as more than 10 years had elapsed since the alleged breach. Before the inspector*, the council argued that: (i) B fell outside the categories of person who were entitled, under section 174(1) of the Town and Country Planning Act 1990, to appeal against an enforcement notice; and (ii) the notice had, in any event, been served within the 10-year period prescribed by section 171B(3) of the Act, because B was estopped by the representations of the landowner from asserting that any breach had occurred before 16 June 1986. The inspector found in favour of B, and the council appealed to the High Court.
Held: The appeal was dismissed.
1. To succeed on their first argument the council had to show that, on a proper construction of section 174(1), B was neither a person having an interest in the relevant land (the first limb), nor a “relevant occupier” as defined in subsection (6) (the second limb). Contrary to the view taken by the inspector, the first limb did not apply. The leasehold interest belonged to the company, not to B. Although the company was effectively a one-man company, a contrary conclusion could not be drawn without a finding (which had not been made) that the arrangements between B and the company amounted to a mere façade. Without such a finding it was not permissible to pierce the corporate veil: Adams v Cape Industries plc [1990] Ch 433 and Woolfson v Strathclyde Regional Council [1978] 2 EGLR 19 applied; DHN Food Distributors Ltd v Tower Hamlets London Borough Council [1976] 2 EGLR 7 explained and distinguished.
2. It was, on the other hand, open to the inspector to find that B occupied the premises at all material times by virtue of a licence from the company, and was accordingly a relevant occupier for the purpose of the second limb. The fact that a director and principal shareholder was carrying on the business of the company from the company’s premises did not preclude a finding in appropriate circumstances that he (unlike an employee) was occupying the premises in his own right.
3. B was not a party to the representations made by the landowner, and would accordingly not be bound by any estoppel that had arisen unless it was capable of running with the land. While an estoppel arising out of a land transaction (proprietary estoppel) was so capable, the same could not be said of an estoppel based on representations relating to the use of the land rather than its ownership. There was, moreover, no finding that B’s resort to his right of appeal was unfair or unconscionable. In those circumstances, it was highly doubtful whether a prior representation could, without more, override or alter accrued rights under the 1990 Act: Thrasyvoulou v Secretary of State for the Environment [1990] 1 PLR 69 considered.
* Editor’s note: Conducting a second hearing of the appeal pursuant to an order made in Buckinghamshire County Council v Secretary of State for the Environment and another [1998] 4 PLR 19.
Benedict Sefi (instructed by the solicitor to the council) appeared for the appellants; David Elvin QC (instructed by the Treasury Solicitor) appeared for the first respondent, the Secretary of State; the second respondent, John Brown, did not appear and was not represented.
Alan Cooklin, barrister
