Inspector upholding enforcement notice but only after ordering extensive variation of terms of notice – Appellant contending that inspector had exceeded variation powers conferred by Town and Country Planning Act 1990 – Appeal dismissed
The appeal site, formerly part of a colliery, formed an enclave of development in rural surroundings in the Nottinghamshire green belt. An established use certificate (EUC) granted in 1970 certified that the land was a “haulage and storage depot”. On July 7 1995 the council issued an enforcement notice alleging unauthorised change of use “for the purposes of several businesses engaged in a multiplicity of commercial activities”. The notice required the appellant to cease using the land for the purposes so described and to remove certain structures.
On appeal to the Secretary of State for the Environment the appellant, arguing that no material change of use had taken place, contended,inter alia, that the notice was fundamentally defective in that it was not clear what the appellant had to do. The inspector, having recorded the presence of a number of businesses devoted to activities falling outside the EUC, accepted that the notice was imprecise but considered that he was capable, without injustice, of upholding the enforcement process by the making of certain corrections to the notice. On that basis he ordered the deletion of the general expressions (as instanced by the words quoted above) and specified both the breach and the required steps to be taken in terms of particular buildings and the activities carried on therein. In his appeal to the High Court the appellant, partly relying on Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196 and paras 176.03 and 176.04 of vol 2 of the Encyclopaedia of Planning Law and Practice, contended that the purported variation, being one which went to the substance of the matter, fell outside the correction and variation powers given by section 176 of the Town and Country Planning Act 1990 to the Secretary of State whose inspector could not therefore effectively construct a completely new notice.
Held The appeal was dismissed.
Whatever the position under earlier legislation, the powers given by section 176 were given in the widest and most flexible terms subject only to the requirement that the inspector had to be satisfied that no injustice would be caused: see R v Secretary of State for the Environment, ex parte Ahern [1989] 2 PLR 96 and Hammond v Secretary of State for the Environment [1997] JPL 724. There was accordingly no support for the qualification suggested in the passages in the Encyclopaedia relied upon by the appellant, nor was there any evidence that the variation complained of would cause injustice.
Paul Bleasdale (instructed by Andersons, of Nottingham) appeared for the appellant; Nathalie Lieven (instructed by the Treasury Solicitor) appeared for the first respondent, the Secretary of State for the Environment; Thomas Hills (instructed by the solicitor to Broxstowe Borough Council) appeared for the second respondents.
