Town and Country Planning Act 1971–Appeal from decision of McNeill J after previous history of litigation–Enforcement notice–Works carried out to a small building used for the business of a scrap-metal merchant and breaker–Works involved jacking up roof, then carrying out operations to the walls in turn, then at a later stage works to the roof itself–Secretary of State upheld enforcement notice served by planning authority, holding that the structure had been improved out of existence and had become a new building–McNeill J upheld Secretary of State’s decision–On appeal to the Court of Appeal the appellant complained that the Secretary of State had failed to take into account a circular published by his own department about encouraging small businesses in the green belt; that there had been a breach of the rules of natural justice as a new issue had been raised without a fresh inquiry, namely, whether there was a new building as distinct from an alteration of external appearance; and that a series of improvements to an old building could not result in the creation of a new building–The Court of Appeal rejected all three grounds–Sainty v Minister of Housing and Local Government and C W Larkin v Basildon District Council discussed–Appeal dismissed
This was an
appeal by Ernest Henry Hewlett against a decision of McNeill J dismissing an
appeal against the decision of the Secretary of State upholding an enforcement
notice served by Brentwood District Council. The subject premises consisted of
a structure in the green belt at Coxtie Green Road, Brentwood, Essex.
J C Harper
(instructed by Collyer-Bristow, agents for Landons of Brentwood) appeared on
behalf of the appellant; D Hands and E Caws (instructed by the Treasury Solicitor)
represented the Secretary of State, the first respondent; the second
respondent, Brentwood District Council, were not represented and took no part
in the proceedings.
Giving
judgment, SIR JOHN DONALDSON MR said: This is an appeal from a decision of
McNeill J given in a planning matter on September 23 1982. I have no idea why
it has taken over two years to come to this court, but that is a matter which
can be investigated separately, as it has no bearing on this appeal.
The
subject-matter of the appeal was an enforcement notice given on June 30 1977.
It related to a very small building in the ‘green belt’ at Coxtie Green Road,
Brentwood, Essex. Not only was the building small, but it had the unusual
feature that it had only three walls, the remaining space being used apparently
as a means of access for various lorries which were repaired under its shelter.
There was an existing use certificate relating to the site, which permitted the
owner, Mr Hewlett (the appellant in this appeal), to carry on business as a
scrap-metal merchant and breaker, and no objection has yet been taken to his
running a haulage business. The objection taken was to works which he did to
this building. They apparently involved jacking up the roof, then undertaking
certain operations to the walls in turn, and at a later stage probably working
on the roof itself.
Mr Hewlett has
throughout maintained that none of these operations, either individually or
collectively, constitutes development for the purposes of the Town and Country
Planning Act 1971 because of the beneficent provisions of section 22(2)(a)
which provide as follows:
The following
operations or uses of land shall not be taken for the purposes of this Act to
involve development of the land, that is to say —
(a) the carrying out of works for the
maintenance, improvement or other alteration of any building, being works which
affect only the interior of the building or which do not materially affect the
external appearance of the building . . .
His case is
that these operations, however extensive they may be, did not materially affect
the external appearance of the building and were merely improvements; in
particular, they did not amount to the creation of a new building.
Mr Hewlett
appealed against the enforcement notice, and an inspector was appointed to
consider the matter in 1978-79. The inspector had four possible conclusions
available to him. The first was that there never had been a building here at
all, so there could be no question of improvement. The second was that while
there had been a building, all these works could reasonably be regarded as
coming within section 22(2)(a) as being ‘maintenance, improvement or other
alteration’ of that building not materially affecting the external appearance.
The third was that the external appearance had been materially altered. The
fourth was that the work of maintenance, improvement or alteration had reached
the point at which the previous building had been improved out of existence and
had become a new building.
The
inspector’s decision was challenged in a Divisional Court in which I presided
with McNeill J. We decided that the inspector’s decision was defective because
he did not make it sufficiently clear what exactly it was that he was finding
other than the fact that there was a building there previously. In particular,
we were troubled that he might have been deciding that there was a material
alteration in the external appearance of the building at a time when the
building works were in progress–as, of course, it is very difficult to improve
a building without materially altering its external appearance on a temporary
basis as part of the work. Accordingly we quashed his decision and remitted it
for reconsideration.
I still think
that we were right to do so, but whether we were wise to do so is another
matter. At the time I did venture a mild protest at the amount of money that
was being spent on this small building, not with a view to its improvement, but
with a view to establishing new points of planning law. However, that was
clearly a matter for the appellant and not for me. His enthusiasms have now
carried the matter still further. Following our decision, the Secretary of
State decided that he would himself reconsider the matter. He decided to do so
on the basis of the evidence which had been given before the previous inspector
supplemented by the answers to various inquiries which he made of the
appellant. His conclusion as a matter of fact and degree, as he was naturally
keen to emphasise, was that this structure had been improved out of existence
and it had become a new building. On that basis he upheld the enforcement
notice.
Mr Hewlett has
appealed again. On this occasion the appeal was heard by McNeill J sitting
alone. He upheld the Secretary of State’s decision. Mr Hewlett now appeals from
that decision.
Before us and
in relation to the new decision, there are three complaints and three
complaints only. The first, a new one, is based upon the fact that, after the
date when the original order was quashed and before the new decision, the
Secretary of State had published a circular, no 22 of 1980, of which Mr Hewlett
says he took no account.
To my mind
there are two very short answers to this. The first is that the real complaint,
when analysed, is that the Secretary of State did not mention that he took
account of it. There is no evidence as to whether he did or did not, and for my
part I see no reason to assume that the Secretary of State failed to take
account of his own policy circulars, of which there must be a large number, in
so far as they are relevant. The second answer is that for my part I am quite
unable to see that the circular was relevant anyway. It dealt with the
encouragement of small businesses in ‘green belt’ areas. It said in terms that
nothing therein contained was to affect the ‘green belt’ policy, but did
suggest that redundant buildings might perhaps be used for small businesses and
that other measures might be taken to encourage small businesses, and to that
extent it might be possible in appropriate cases to relax the planning policy.
This point, of
course, arises only in relation to a deemed application for planning
permission, which is implicit in every appeal against an enforcement notice. I
cannot see that that circular took the matter any further. The Secretary of
State was well aware of the facts here, and it is not for me to express any
view as to whether he was right or wrong, provided that he acted within the
limits of his own discretion. Suffice it to say that I can well understand his
refusing to grant planning permission.
The second
objection was that there had been a breach of the rules of natural justice in
that the Secretary of State had failed to reopen the inquiry or order a new
inquiry. It was said that he should have done so because he was concerned with
an entirely new issue, namely whether this was a new building as contrasted
with whether the external appearance was altered. For my part I do not regard
that as a new issue; it was an issue which was clearly adumbrated at the
original inquiry and was, with reasonable clarity, adumbrated in my own
judgment in the Divisional Court. I cannot see that the appellant was in any
way taken by surprise.
The third
ground of appeal concerns whether this building could be a new building. It is
submitted on behalf of the appellant that if it can be shown that each stage of
the work was an improvement of the old building, the fully improved building
must, as a matter of law, be the same building albeit in an improved form.
Therefore, unless the old building had been knocked down in the course of the
works, the Secretary of State could not hold that this was a new building.
That
submission would in fact involve overruling two decisions of the Divisional
Court: Sainty v Minister of Housing and Local Government (1964)
15 P&CR 432, and C W Larkin v Basildon District Council [1980]
JPL 407. The submission is none the worse for that, but Lord Parker CJ in Sainty’s
case, on which Larkin’s case was to some extent founded, said this at p
434:
In my
judgment, it may well be that it is possible to arrive at what in effect is a
new erection by stages, each stage of which can be said to be an improvement.
That certainly is not this case and I should imagine that it would be a case
which could very rarely occur. It would be difficult to think how it could be
done economically or over a period long enough to be able to say that each
stage was merely an improvement, and that the whole thing was not just a
rebuilding.
It is quite
clear that Lord Parker was contemplating precisely the problem which has arisen
here. For my part I would entirely agree with the learned Chief Justice that it
is very difficult to think how you can rebuild by stages in such a way as to
produce what is in effect a new building and still be able to maintain that it
was merely the old building in an improved form unless, as was pointed out in
argument, there is a very substantial separation between the stages–a century
or so was suggested. In such a case it may indeed be possible to say that it
remains the same building. But it is essentially a question of fact and degree–not
a question of law–and the Secretary of State has decided it as a matter of fact
and degree.
I would
dismiss the appeal.
Agreeing,
OLIVER LJ said: I do not think there is anything I can usefully add save to say
this, that the matter of natural justice was dealt with by McNeill J in a very
careful judgment in which he closely analysed the correspondence and the issues
before the Secretary of State. I for my part am quite unable to see that he
came to the wrong conclusion, and I think the appeal should be dismissed.
ROBERT GOFF LJ
also agreed and did not add anything.
The appeal
was dismissed with costs.