Town and Country Planning Act 1971, section 89(4)–Appeal by planning authority by case stated from decision of
This was an
appeal by Basildon District Council, through their planning officer, John
Charles Prosser, from the decision of magistrates of the petty sessional
division of Billericay dismissing an information preferred by the council
against Ernest James Sharp, alleging that he had committed an offence contrary
to section 89(4) of the Town and Country Planning Act 1971. The offence alleged
related to the use of a site at ‘Kenwood’, Newlands Road, Wickford, Essex.
C Cochrane
(instructed by Hatten, Jewers & Mepham, of Basildon, Essex) appeared on
behalf of the appellant planning authority; P Surrey (instructed by E Edwards,
Son & Noice, of Billericay, Essex) represented the respondent.
Giving
judgment, STEPHEN BROWN LJ said: This is an appeal by way of case stated from
the decision of the justices of the petty sessional division of Billericay on
May 3 1984, when they dismissed information preferred by the Basildon District
Council against Mr Ernest James Sharp alleging that he had committed an offence
contrary to section 89(4) of the Town and Country Planning Act 1971, in that he
had not–since a conviction for a breach of an enforcement notice of February 26
1982–done, as soon as practicable, everything in his power to secure compliance
with the enforcement notice. The Basildon District Council, through their
planning officer, appeal to this court against the justices’ dismissal of that
information.
The facts
giving rise to the proceedings before the magistrates are these. In 1979 two
enforcement notices were served by the appellant authority, as planning
authority, upon the respondent Mr Sharp. The notices referred to the use of
certain land at Wickford, Essex, for the purposes of a caravan site in that on
that land there was a hardstanding and driveway, and a residential caravan.
Notice ‘A’ served on September 20 1979 alleged that there was a breach of
planning control in that a material change of use of the land in question had
taken place in that it was used for the purpose of a caravan site, and the
notice required the removal of the caravan from the land within a period of two
months. The second notice, which the magistrates referred to as ‘B’, alleged
the same breach of planning control and required the digging up and removal of
the concrete hardstanding and driveway. The respondent appealed to the
Secretary of State for the Environment against those enforcement notices and on
September 26 1980 the Secretary of State dismissed those appeals. The appeals
were made pursuant to section 88 of the Town and Country Planning Act 1971.
Notwithstanding
the dismissal of the appeals, it was found that on January 26 1981 there still
remained on the site the concrete hardstanding and a caravan. As a result the
planning authority took proceedings before the magistrates at Billericay. The
magistrates convicted the respondent of a breach of the requirement to comply
with the enforcement notice. He was given a conditional discharge. That
conviction was on February 26 1982.
Thereafter the
planning authority discovered that there still remained on the site, on the
same concrete hardstanding, a caravan. It appears to have been a different
caravan: in fact the magistrates’ finding of fact indicates that it was a large
caravan, which suggests that it was a larger caravan than the caravan
originally on the site when the enforcement notice had been served in September
1979. The planning authority, therefore, preferred an information on December
20 1983 alleging an offence by the respondent contrary to the provisions of
section 89(4) of the Town and Country Planning Act 1971.
Section 89(4)
provides:
If, after a
person has been convicted under the preceding provisions of this section, he
does not as soon as practicable do everything in his power to secure compliance
with the enforcement notice, he shall be guilty of a further offence and liable
. . .
to certain
penalties. That was the matter which came before the magistrates on May 3 1984
and which, as I have indicated, resulted in the dismissal of that information.
The case shows
that the magistrates found the following facts–facts evidently material to
their decision. Having recited the earlier proceedings (that is to say the
service of the original enforcement notices, the appeals to the minister and
the proceedings for failure to comply with the enforcement notice) in subpara
(e) of para 2 of the case the magistrates state that they found:
On September
15 1983 an enforcement officer of the council inspected the site and found that
electrical light had been laid on to the wooden building which was being lived
in.
That,
apparently, was a wooden building adjacent to the concrete hardstanding and the
caravan, which, according to their finding in subpara (c) of para 2, had been
unoccupied in January 1981.
In subpara (e)
the magistrates found as a fact:
A large
caravan was present on the site on the concrete hardstanding . . . the officer
agreed that it was not the same caravan as had been on the site on January 26
1981.
They state
that they found further:
On February
29 1984 an enforcement officer of the council visited the site and found that
the wooden building appeared to be lived in, also a large caravan measuring
approximately 26 ft by 9 ft adjacent to the property and a touring caravan . .
. and agreed that the caravan on the site was not the same caravan as had been
on the site on January 26 1981.
The
magistrates further found:
Planning
permission for use of the wooden building as a dwelling had been refused by the
council and an appeal against this refusal was dismissed by the Secretary of
State for the Environment on February 8 1982.
In subpara (h)
they made the following findings:
The wooden
building had been there ever since the respondent had first come to know this
area in the early 1960s. The site was then owned by a Mrs Smithers and was used
by her to live in for weekends and holidays. The respondent purchased the
property in 1977. It then measured about 16 ft by 10 ft, was partly rendered
and comprised of two parts one a living area and one a bedroom. There was no
gas or electricity connected, but there was a well outside for water and an
Elsan toilet. The first room entered was the living-room/kitchen. It contained
a cooker worked from bottled gas, a sink and a table and chairs. The concrete
floor was covered with oil cloth and there was wallpaper on the walls. The
other room was a bedroom. It contained a fixed bench bed, a wardrobe, and some
chairs. The premises had been left in this condition by Mrs Smithers.
Subpara (i):
Following his
purchase of the site in 1977 the respondent purchased a large caravan and lived
in it and used the wooden building for storage.
I interpolate
here that that was before and leading up to the time when the enforcement
notices were served in September 1979. The magistrates’ findings continue:
He sold the
caravan in about January 1982 and removed it from the land. The respondent then
renovated the wooden building and connected water, gas and cesspool drainage
and bought another caravan and used the wooden building for general living
purposes, that is for preparing and cooking food and for other recreational
use, but the family all slept in the caravan. There were no cooking facilities
in the caravan.
It then
appears from the case that before the magistrates the respondent to this appeal
contended that the wooden building was a dwelling-house and that by virtue of
the provisions of section 22(2)(d) of the Town and Country Planning Act 1971
and/or the Town and Country Planning General Development Order of 1977, he was
entitled to keep a caravan on the land notwithstanding the requirements of the
enforcement notice. The submission made was that the caravan on the land, at
the time when the magistrates were considering the present information, was
used incidentally to a dwelling-house and accordingly did not require planning
consent, and therefore could not, it was submitted, constitute or give rise to
a breach of the enforcement notice.
That
submission is shown to have been resisted by the appellant planning authority
and in para 5 the magistrates express their opinion:
We were of the
opinion that the wooden building is a dwelling-house. We found that the
previous occupier, Mrs Smithers, used it as a dwelling-house and resided in it
for part of the year having arranged it as living and bedroom accommodation. It
is now connected to electricity, water and drainage. It is used as a general
living quarter since it was used for the preparation and cooking of meals, food
storage, washing clothes, recreational facilities such as TV which would make
it a home or dwelling.
We regarded
living as an active living during one’s normal awakened state and we regarded
the caravan as ancillary to living.
In para 6 they
pose, for the consideration of this court, the following question: ‘The
question for the opinion of the High Court is whether on the facts found, we
were right to acquit the respondent.’ It is against that decision that the
planning authority now appeals to this court.
On behalf of
the planning authority Mr Cochrane submits that the magistrates misunderstood
the situation and were misled into dismissing this information, because there
was a fundamental error in their approach, inasmuch as they considered that the
use of the caravan in conjunction with the hut–which they found to be a
dwelling-house–was a material factor in the proceedings which were before them.
The submission is made that, having regard to the provisions of section 243 of
the Town and Country Planning Act 1971 (as amended), the validity of an
enforcement notice shall not be questioned in any proceedings whatsoever except
by way of appeal to the Secretary of State. Counsel submits that in effect that
is what was being attempted before the magistrates, when the submission was
made that the enforcement notice was no longer effective to bite on the
presence of the caravan on the hardstanding at the date of this information in
1983.
It has to be
borne in mind that section 93 of the Town and Country Planning Act 1971
provides:
Compliance
with an enforcement notice, whether in respect of–(a) the demolition or
alteration of any building or works; or (b) the discontinuance of any use of
land, or in respect of any other requirements contained in the enforcement
notice, shall not discharge the enforcement notice.
It is therefore
submitted that this enforcement notice remained in effect and valid throughout
the relevant period.
It is further
submitted on behalf of the appellants that section 92 of the Act is relevant
since it provides, in subsection (1):
It, after the
service of an enforcement notice, planning permission is granted for the
retention on land of buildings or works, or for the continuance of a use of
land, to which the enforcement notice relates, the enforcement notice shall
cease to have effect in so far as it requires steps to be taken for the
demolition or alteration of those buildings or works, or the discontinuance of
that use.
Accordingly,
since planning permission had not been granted, this enforcement notice
remained in full force and effect.
It is
therefore submitted on behalf of the appellant that the fact that it appears
from the justices’ findings that the original caravan was sold and removed from
the site and was then replaced by another caravan does not affect the position,
because having regard to the continuing effectiveness of the enforcement
notice, it precluded the further use of the land for a similar purpose by the
bringing on to it of a replacement caravan. That is the effect, it is
submitted, of section 93 of the Act, and section 92 of the Act makes it clear
that only the grant of planning permission can nullify the effect of the
enforcement notice in such circumstances.
Mr Cochrane
further resists the argument which apparently found favour with the justices,
that in some way section 22(2) of the Town and Country Planning Act 1971 and
the Town and Country Planning General Development Order 1977 could put an end
to the effectiveness of the relevant enforcement notice in this case. Section
22 of the Town and Country Planning Act 1971 deals with the meaning of
development and new development, and by subsection (2) provides: ‘The following
operations or uses of land shall not be taken for the purposes of this Act to
involve development of the land’ and then it sets them out. If one marries that
up with the General Development Order, it is made apparent that the use of a
caravan for purposes which are incidental to a dwelling-house is not a matter
which requires an express planning consent.
Mr Cochrane
submits that that is irrelevant in the context of this case; that what the
justices were dealing with was an enforcement notice that was still valid and
effective. He says that they had before them an information which alleged that
it had not been complied with and evidence to support the allegation. It was
clear that reasonable steps had not been taken so soon as practicable to comply
with the enforcement notice following the conviction of the respondent for a
breach of its requirements in February 1982.
He makes the
further submission that, in any event, on the evidence which was before the
justices it was not open to them to come to the conclusion that the caravan
found to be on the site in 1983 was being used incidentally to the use of a
dwelling-house–or was ancillary to living in a dwelling-house as the
magistrates expressed it–because it was not open to them–on the evidence–to find
that the hut was a dwelling-house, having regard to the nature and character of
the structure and to the important and material fact that it was not used for
sleeping in by any of the family. He submitted that it was not open to any
reasonable bench of magistrates to conclude, firstly, that the hut was a
dwelling-house and, secondly, that the caravan was being used as ancillary to
living in the alleged dwelling-house.
Those
submissions were made as alternative subsidiary submissions. The principal
submission made by the planning authority is that, having regard to the
provisions of section 243 of the Act, there was no basis upon which the
magistrates could properly avoid acting on the clear evidence of a continuing
breach of the requirements of the enforcement notice. Accordingly, the evidence
was such that they should have convicted.
Mr Surrey has
addressed an ingenious argument to this court in opposition to the arguments
put forward on behalf of the planning authority. He submits that there was, in
fact, no resumption of the use specified in the original enforcement notice
because an entirely different use was made of the site–which was the site of
‘Kenwood’, Newlands Road, Wickford–after the original proceedings in 1982 and
after the sale and removal of the original caravan. The use which was
thereafter made was entirely different, he submits, because, although another
caravan was brought on to the same hardstanding and was dwelt-in in the sense
that the family lived in it (sleeping in it), it was used in conjunction with
the hut which had been renovated, supplied with electricity and water;
accordingly, it then became and was a caravan used as ancillary to a
dwelling-house which, he submitted, this hut had become by reason of the
alterations and renovations made to it by the respondent.
He submits
that section 22 of the Town and Country Planning Act and the General
Development Order show that such a use would not require planning permission
and, therefore, a changed situation had occurred since the service of this
enforcement notice and the earlier proceedings before the magistrates in 1982.
He submitted that the notice had been complied with because the caravan had
been removed, and that the new caravan brought on to the same hardstanding was
not the resumption of the previous use, which was the subject of the
enforcement notice.
He submits
that it would not be necessary, in order to render the enforcement notice
ineffective so far as this use was concerned, that planning permission should
have been obtained for the resumed siting of the new caravan on that particular
site.
He has
developed his arguments with the assistance of a helpful skeleton argument. He
submits that the justices were correct. It was a question of fact for them to
consider whether the hut was a dwelling-house and, secondly, a question of fact
that the caravan on the site at the time of the relevant proceedings was being
used ancillary to living in the hut, which he submits the justices were
entitled to find was a dwelling-house. Accordingly, he supports the conclusion
to which the justices came.
Despite his
ingenious submissions, I am satisfied that it is no more than a colourable
defence to the charge which was before the justices. It is wholly without merit
and would make a nonsense of planning law if it were to be acted upon. I do not
criticise counsel for developing
but in my judgment the overriding factor which the justices should have had
regard to was the continuing validity of the enforcement notice. They should
have taken note of the requirement of the enforcement notice, which was the
removal of the caravan from the land.
Having regard
to the effect of sections 93 and 92 taken together, it is quite plain that that
requirement had not been complied with. Another caravan had been substituted
for the caravan which had been on the land at the earlier time, and the enforcement
notice was still in force. It was still effective. No planning permission had
been acquired to justify that use. Accordingly, on that ground it seems to me
that the justices were quite wrong to allow their attention to be diverted by
reference to the use of the hut allegedly as a dwelling-house.
I have to say
without hesitation that the use of the caravan in relation to the hut was an
irrelevancy, so far as the justices were concerned. I further feel bound to say
that no reasonable bench of magistrates, in my judgment, could have come to the
conclusion that this hut was in any event a dwelling-house. It was not lived
in. Nobody slept there. It was not a roof over anybody’s head. On a plain
commonsense view of life it could not be said to constitute a dwelling-house.
That is a
matter, however, which is not essential to the decision to which I have come.
Having regard to the arguments which have been addressed to the court it is
right that I should express that view of the matter, since it forms the basis
of the findings of the justices and the opinion which they have expressed. For
the reasons which I have given, I would allow this appeal and remit the case to
the justices with a direction to convict.
Agreeing,
OTTON J said: The presence of a caravan at ‘Kenwood’ did constitute a breach of
or a failure to comply with the enforcement notice. In my judgment, the
presence or condition of the wooden building at the time stated in the
information is irrelevant. In any event I have grave doubts that the wooden
building at the material time was even capable of being a dwelling-house, not
least by the fact that an essential part of living — namely sleeping — was not
provided for in the wooden building. The magistrates found as a fact that all
the family slept elsewhere, namely in the caravan.
It would
follow that the presence of the caravan was not ‘ancillary to living’ (as the
justices found) or for a purpose incidental to the enjoyment of the
dwelling-house as such within section 22(2), para (d), of the Town and Country
Planning Act 1971.
No order for
costs was made. Legal aid taxation was ordered.
