Council serving enforcement notice requiring appellant to cease permanent use of site as market area – Inspector upholding enforcement notice – Whether inspector erred in failing to amend notice so as to safeguard appellant’s right to carry on temporary market use – Appeal dismissed
In 1983 the appellant acquired 18ha of a disused RAF airfield at Hemswell, Lincolnshire. Initially, the appellant used the land for its permitted use, namely agriculture, but in November 1989 it started to use the land for the purpose of car parking to serve the former technical site on the airfield. The appellant’s application for planning permission for the construction of a car park was refused, but the car parking continued and in 1992 hardstanding roadways were constructed to facilitate that use. A tenant used part of the land for Sunday markets and, when the tenancy ended towards the end of 1993, the appellant reopened the operation himself and continued to use the site for Sunday markets and the parking of motor vehicles. In November 1995 an application for permission to continue use of the land for car parking was refused.
In February 1996 the second respondents, West Lindsey District Council issued an enforcement notice requiring the appellant to stop the use of the land for the holding of markets and car boot sales. The appellant’s appeal against the notice was dismissed. The appellant relocated the market and car boot sale enterprise, but continued to use the site for parking. He also installed portable toilets and a septic tank. In December 1997 a second enforcement notice was served requiring the appellant: (i) to stop using the land for the purpose of parking motor vehicles; (ii) to stop using the land for the purposes of holding markets and/or car boot sales; (iii) to remove from the land the portable toilet and connected septic tank; and (iv) to remove from the land the four hardstanding roadways and linking roads constructed in connection with motor vehicles. An inspector dismissed the appellant’s appeal against the notice.
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 section 58(1)(a) of the Town and Country Planning (General Permitted Development) Order 1995 (the GPDO), namely the holding of 14 one-day markets on the land in any calendar year. The judge dismissed the appeal, holding that the relevant ancillary use was not a contravention of the enforcement notice, properly constructed.
Held: The appeal was dismissed.
1. The so called Mansi doctrine in Mansi v Elstree Rural District Council (1964) 189 EG 341, namely, that no enforcement notice could take away legally permitted rights, had survived the changes made to the Town and Country Planning Act 1990 by the Planning and Compensation Act 1991 and remained perfectly good law: R v Harfield [1993] 2 PLR 23 considered.
2. The appellant was, therefore, entitled to use his land for GDPO purposes once he indicated that he had ceased to use it for the permanent purposes prohibited by the enforcement notice. The enforcement notice was clear and certain and required no amendment. Accordingly, the inspector had not erred in omitting to amend the enforcement notice to expressly provide that the use of the land it required to be stopped did not include use of the land in accordance with the GPDO.
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.
Thomas Elliott, barrister
