Council serving enforcement notice requiring appellant to cease permanent use of site as market area – Appellant appealing – Inspector upholding enforcement notice – Whether inspector erred in failing to amend notice so as to safeguard appellant’s right to carry on temporary use – Appeal dismissed
West Lindsey District Council (the second respondents) issued an enforcement notice, which required the appellant, amongst other things, to stop using certain land for the purposes of holding markets and/or car boot sales. The appellant appealed against the notice to an inspector, who dismissed the appeal. The appellant sought to quash the inspector’s decision pursuant to section 289 of the Town and Country Planning Act 1990. The sole ground of appeal was that the inspector had failed to amend the enforcement notice so as to safeguard the permitted use rights, granted by virtue of the Town and Country Planning (General Permitted Development) Order 1995 (the GPDO), for temporary use of the land for the holding of markets for not more than 14 days in any calendar year.
Held: The appeal was dismissed.
Section 179(1) of the Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) had to be read subject to section 181(2) of the 1990 Act. Resumption of a use would contravene the enforcement notice only to the extent that it was “in contravention of Part III” of the Act. If a use was not in such contravention, it would not, when resumed, be “the activity required by the notice to cease” for the purposes of section 179(1). Nor would it be the same activity which “is being carried on” for the purposes of section 179(1).
In the present case, the GPDO permission for a temporary use could only begin in a calendar year when there had not already been more than 14 days of market use. Therefore, it would be necessary to discontinue the more permanent use, against which the enforcement notice was directed, before the permitted temporary use could be begun. Applying R v Harfield [1993] 2 PLR 23, there was no risk of prosecution if the temporary use was begun after discontinuance of the permanent use. There was therefore no need to amend the notice in order to safeguard the appellant’s right to carry on a 14-day market.
Timothy Comyn (instructed by Chattertons, of Horncastle) appeared for the appellant; Alice Robinson (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondent did not appear and was not represented.
Sarah Addenbrooke, barrister
