Town and Country Planning Act 1971–Enforcement notice–Appeal from decision of Divisional Court–Validity of notice upheld by Secretary of State and Divisional Court–Question as to whether materials which could be tipped into rubbish dump in old quarry were restricted to sand, soil, rock and clay or whether other inert material, such as builders’ rubble, could be tipped–Condition in 1950 planning permission that only approved materials could be tipped–From about 1950 other materials, including builders’ rubble, were tipped in breach of condition–Confusion throughout proceedings between development consisting of carrying out operations and development consisting of material change of use–In present case development which was in breach of planning control took place about 1950–Further tippings did not constitute further development or further breaches–By section 22(3)(b) the tipping did not constitute an operation, but a change of use–Section 88(1)(d), not 88(1)(c), applied and enforcement action was time-barred because breach occurred before January 1 1964–Appeal allowed and matter remitted to the Secretary of State for re-hearing and determination under RSC Order 94, rule 12(5)
This was an
appeal by John Francis Bilboe and John Francis Bilboe (Junior) from a decision
of the Divisional Court (1978) 248 EG 229, [1978] 2 EGLR 25 dismissing an
appeal from a decision of the Secretary of State, who had upheld an enforcement
notice served by the second respondents, West Lancashire District Council, on
the appellants in respect of the tipping of materials, in particular builders’
rubble, into a worked-out quarry, Sandfield Quarry, Aughton, Lancashire.
Iain Glidewell
QC and David Gilliland (instructed by Compton Carr, agents for Russell &
Sutton, of Southport) appeared on behalf of the appellants; Simon Brown
(instructed by the Treasury Solicitor) represented the first respondent, the
Secretary of State for the Environment; Bruce Martin QC and Miss Cherie Booth
(instructed by the Solicitor, West Lancashire District Council) represented the
second respondents.
Giving the
judgment of the court at the invitation of Megaw LJ, SIR PATRICK BROWNE said:
This is an appeal from a decision of the Divisional Court given on July 17
1978, dismissing an appeal from a decision of the Secretary of State dated
November 25 1976 by which he dismissed an appeal against an enforcement notice
dated April 29 1976 served by the West Lancashire District Council on the
appellants.
The land
concerned is a worked-out quarry called Sandfield Quarry at Aughton, in
Lancashire, which is owned and occupied by the appellants and was used by them
as a rubbish tip from August 1975 until about July 1976. The practical issue is
whether the materials which the appellants are permitted to tip are restricted
to sand, soil, rock and clay, as the council contend and the Secretary of State
has held, or whether they can also tip other inert material, in particular what
may be generally described as builders’ rubble.
In 1938 an
agreement was made between the then owner of the quarry and the West Lancashire
Rural District Council under which the quarry was to be regarded as a private
open space in consideration of the owner being allowed to tip approved
materials in two parts of the quarry. Before these two areas were filled in,
the quarry was sold to the Wellington Haulage Co, and in June 1948 it was
agreed that tipping should cease on March 1 1950, by which time it was
estimated that the areas described in the original agreement would be used up.
On February 14 1950 a Mrs Hartley applied for planning permission for
development, the purpose for which the land was to be used being described as
‘Tip.’ It appears from the plan attached
to the application that it was proposed to fill most of the quarry in addition
to the areas already filled. On August 9 1950 planning permission was granted
by the district council to the Wellington Haulage Co. The planning permission
recited the particulars of the application, ‘Development forming the subject of
the application’ being described as ‘Proposed Tip.’ The decision was:
The West
Lancashire Rural District Council, as agents for the Lancashire County Council.
. . . hereby give notice . . . that permission for the carrying out of the
development referred to in Part I hereof in accordance with the application and
plans submitted has been granted subject to the following conditions: (1) That
the materials to be deposited shall be approved by the Surveyor to the West
Lancashire Rural District Council. (2) That no materials of a noxious nature or
materials likely to give rise to overheating or noxious fumes or smell shall be
deposited.
Then there are
two other conditions which we do not think we need read. Then the reason given
for the conditions was: ‘In order to protect the amenities of the area.’ Mr Glidewell,
tipping.
Tipping began
in 1950-51. In 1952 about 40 tons of mussels and barnacles were tipped on the
site, and the Wellington Haulage Co were warned not to continue tipping organic
materials.
The inspector
who conducted the public local inquiry into the appellants’ appeal against the
enforcement notice (held in August 1976) found the following facts:
(m) The district planning authority have been
unable to find any record of an approval or disapproval by ‘the Surveyor’ to
the tipping of any particular materials and none was produced by the appellants.
(n) There is evidence that in 1952 some 40 tons of mussels and barnacles were
tipped; the then Medical Officer of Health called for them to be covered as
soon as possible; apart from a subsequent letter on the same subject from the
county council to the rural district council, there is no record of any further
action being taken by the authorities. (o) Excavations carried out for the
appellants in July 1975 show that various materials other than sand, soil, rock
and clay were tipped down the bank on the north side of the bottom level in the
past and it was found that the slope bore vegetation including trees up to 10
years old. (p) At the inquiry a local resident stated that there had been no
tipping for 12 to 14 years before July 1975; that about 12 years ago, at the
request of then owner, he put a gate across the entrance to the site and
secured it and that it so remained until 1975; his evidence was not challenged.
We were
referred without objection to some of the evidence on which these findings were
based, as set out or referred to in the inspector’s report. On finding (n) we
were referred to letters dated September 15 1952 from the medical officer of
health to the Wellington Haulage Co and October 7 1952 from the divisional
planning officer of the county council to the surveyor of the district council.
Mr Glidewell relied on the latter letter as showing that the council knew that
builders’ rubble was then being tipped on the site. As to finding (o) we were
referred to the inspector’s summary of the evidence of Mr Boardman, the
engineer who carried out the investigation, whose findings were accepted by the
council. Mr Boardman summarised his conclusions as follows:
The
investigation shows that this site has been used as a tip for builders’ rubble and
similar non-noxious materials for a period of more than 20 years. There is no
evidence of any change in the type of materials tipped during this period, and
these materials do not appear to be different from the materials which Bilboe
Bros propose to tip.
Finding of fact
(p) shows that these materials must have been tipped–at latest–before the end
of 1963.
In August 1975
the site was bought by the appellants. After correspondence and a site meeting,
the district council wrote to the appellants’ solicitors a letter dated July 8
1975 (ie before the appellants bought, which included the following statements:
I would point
out that it is the responsibility of your client to submit full details of his
proposed scheme and programme of tipping to this council. . . . A meeting was
held on the site on July 3 1975, when the following matters were raised and
agreed with Messrs Bilboe Bros. . . (d) that all materials deposited shall
accord with conditions numbered 1 and 2 in planning permission 8/6/781. The
responsibility falls wholly on Bilboe Bros to ensure that only such materials
are tipped. As a guide such material shall only include inert builders’ rubble,
such as bricks, mortar, glass, porcelain, undiseased wood and metal.
The inspector
found as facts that ‘In a reply dated July 17 1975 the appellants stated among
other things that they would conform to the list in July 8 letter and asked for
confirmation that tipping could proceed. The council did not reply, but on
November 19 1975 they wrote to the appellants’ solicitors asking for a written
request for approval of materials.’
Meanwhile, in
October 1975 the council had ‘resolved to take action under section 51 of the
Town and Country Planning Act 1971 to discontinue completely the use of the
site for tipping and meanwhile to adopt a restrictive interpretation of the
planning permission conditions; in February 1976 they reaffirmed these
resolutions.’
On February 2
1976 the appellants’ solicitors wrote to the district council asking for formal
approval under condition 1 of the tipping of ‘inert builders’ rubble and other
materials of a non-noxious nature’, including a list of items they set out–eg
bricks, mortar, putty, glass–and also sand, soil, rock and clay; the solicitors
said: ‘We would also make it clear that the making of this application is not
to be taken to be any admission that approval under condition 1 of the planning
permission is required for these materials or that it has not been given in the
past.’ The council replied on February
27 1976:
After careful
consideration I am writing now to inform you that the only materials taken from
the list included in your letter of February 2 which I am prepared to approve
for tipping at Sandfield Quarry are sand, soil, rock and clay. I consider that
the deposit of other materials will constitute a breach of planning control and
as such will render your clients liable to enforcement action.
The appellants
continued to tip other materials, in particular builders’ rubble, until about
July 1976, a stop notice having been served on May 13.
The
enforcement notice to which these proceedings relate was dated April 29 1976.
Recital (iii) is as follows: ‘On the ninth day of August 1950, the West
Lancashire Rural District Council as agents for the Local Planning Authority upon
an application in that behalf made under Part III of the Town and Country
Planning Act 1947 granted permission for the following development of the said
land namely the carrying out of operations consisting of Proposed Tip.’ Then recital (iv) recited condition 1 of the
permission. Recital (v) was:
It appears to
the council that within the period of four years before the date of service of
this notice there has been a breach of planning control in that the said
development has been carried out but the said condition has not been complied
with in the following respects namely: Materials have been deposited other than
sand, soil, rock and clay which in a letter dated February 27 1976 the Director
of Planning of the West Lancashire District Council as the Officer who by
virtue of Article 16 of the Local Authorities (England) (Property etc) Order
1973 has succeeded the Surveyor to the former West Lancashire Rural District
Council approved for the purposes of condition 1 of the consent dated August 9
1950.
Then the notice
required the appellants to cease depositing upon the land any materials other
than those specified in the last paragraph of the letter of February 27 1976.
The appellants
appealed against the enforcement notice to the Secretary of State under section
88 of the Town and Country Planning Act 1971. The Secretary of State dismissed
the appeal, subject to a variation of the plan attached to the notice. The
appellants appealed to the Divisional Court under section 246 of the Act and
RSC Order 94, rule 12, and their appeal was dismissed. They now appeal to this
court: the Divisional Court gave leave to appeal, if it was required.
We think it is
convenient to refer at this stage to the relevant provisions of the 1971 Act.
We do not propose to read them but we must be taken to have incorporated in
this judgment the following sections: section 22(1) and (3)(b); section 23(1);
section 87(1) (as amended by the Local Government Act 1974), (2), (3) and (6);
section 88(1)(a), (b), (c) and (d); section 246(1); and the definition of ‘use’
in section 290.
We feel bound
to say that it seems to us that this case has been complicated and confused
throughout by a failure on all sides to keep clear the distinction between the
two mutually exclusive forms of development to which the Town and Country
Planning Acts relate–development by carrying out ‘operations’ and development
by making a ‘material change of use.’
Recital (iii) of the enforcement notice alleges that the 1950 permission
‘granted permission for the following development of the said land, namely, the
carrying out of operations consisting of Proposed Tip’, and recital (v) alleges
that ‘within the period of four years before the date of service of this notice
there has been a breach of planning control in that the said
with . . . .’ (The reference to four
years implies that this was an operations case–see sections 87(3) and
88(1)(c).) Mr Glidewell takes no
technical point on the wording of the notice, but he submits that the
‘development’ with which we are concerned was not the carrying out of
operations but the making of a material change of use.
The
appellants’ appeal against the enforcement notice was based on section
88(1)(a), (b) and (c) of the Act. We are not concerned with section 88(1)(a)
(that planning permission ought to be granted), but if Mr Glidewell’s
submission is right the relevant provision is section 88(1)(d), not section
88(1)(c). Mr Brown, for the Secretary of State, did not object to our
considering section 88(1)(d), because the point was raised in the Divisional
Court, but he said that the Secretary of State was giving no indication that he
would not object in future to a challenge to an enforcement notice on a ground
not advanced to him. This confusion persisted as late as the notice of appeal
to this court, ground (2) of which refers to ‘a period of more than four years
prior to 1964.’
The inspector
concluded: (a) that whether or not the council’s letter of July 8 1975 could be
regarded as an approval of the tipping of the materials to which it referred
(builders’ rubble), the council was entitled later to limit its approval to
other materials, and had done so by its letter of February 27 (sand, soil, rock
and clay)–the appeal under section 88(1)(b) should therefore fail; (b) as the
tipping of materials other than those specified in the letter of February 27
1976 took place within the period of four years before the service of the
notice, the appeal under section 88(1)(c) should also fail.
The Secretary
of State concluded: (a) that the council’s letter of July 8 1975 was not an
approval under condition 1 of the planning permission, and that, although such
approval need not be in writing, the appellants had failed to establish that
any such approval had been given before the council’s letter of February 27
1976; (b) that ‘whether or not an earlier breach of planning control occurred,
the present breach is unconnected with it, the tip having been unused for some
20 years before 1975, and it is therefore capable of being made the subject of
enforcement action’, and that the inspector’s conclusion on section 88(1)(c)
was accepted.
In the
Divisional Court Mr Glidewell, for the appellants, contended: (1) that the
Secretary of State was wrong in holding that no approval had been given by the
council under condition 1 to the tipping of materials other than those
specified in the letter of February 27 1976–in particular builders’ rubble,
which had in fact been tipped between 1950 and 1963–and that the only
reasonable inference was that such approval had been given, probably between
1950 and 1952; (2) alternatively, if no approval was given, that the breach of
planning control on which the enforcement notice was based took place before
January 1 1964 and that enforcement was therefore time-barred; (3) that the
letter of July 8 1975 gave rise to an estoppel against the council.
The Divisional
Court rejected all three contentions. In this court, Mr Glidewell renewed
contentions (1) and (2) but did not pursue contention (3) in face of the
decision of this court in Western Fish Products v Penwith District
Council (1978) 38 P&CR 7.
As to
contention (1), an appeal from the Secretary of State lies only on a point of
law (section 246(1)). Mr Glidewell accepts that he cannot succeed on this point
unless the only reasonable conclusion on the facts found is that approval was
given for the range of materials found by Mr Boardman on his site
investigation. He submits that this is the only reasonable and proper
inference. He does not rely on the letter of July 8 1975 as an approval, but he
relies on the finding of the Secretary of State that approval need not be in
writing. He says that the facts are–(a) that the materials found on the site
investigation (in particular builders’ rubble) were tipped between about 1950
and 1963; (b) that in 1952, at the time of the mussels and barnacles incident,
the district council knew that such materials were being tipped, but made no
objection to anything except the mussels and barnacles. He submits that the
inescapable inference from the combination of these facts is that the council
had before 1952 approved the tipping of builders’ rubble etc. We are not
satisfied that we should necessarily have come to the same conclusion as the
Secretary of State, but this does not matter. In our judgment it is impossible
to say that the only reasonable conclusion is that approval had been given and
that the Secretary of State was therefore not entitled to make the finding he did
make. In our judgment, therefore, this contention must fail.
As to Mr
Glidewell’s second contention, Mr Brown for the Secretary of State and Mr
Martin for the council submit that the Secretary of State and the Divisional
Court were right in holding that although no enforcement action could now be
taken in respect of the tipping before 1964 there were further breaches of
planning control when tipping was resumed from August 1975 onwards of materials
which had not been approved under condition 1, and enforcement action can now
be taken in respect of these failures to comply with the condition. They rely
by analogy on the decision of this court in Thomas David (Porthcawl) Ltd
v Penybont RDC [1972] 1 WLR 1526 and submit that Lord Widgery CJ was
right in the present case when he said:
The view that
I take is that in that situation the local authority can proceed in respect of
the infringements which occurred after January 1 1964, notwithstanding the fact
that they are of course time-barred in respect of anything happening before
that day. I do not recognise a principle which says that, if you have a certain
number of incidents amounting to a breach of planning control occurring before
1964, that necessarily prevents the local authority from proceeding in respect
of those which occur afterwards. Indeed, I take exactly the opposite view and
think there is nothing in what one might call the four-year principle, or now
the 1964 principle, to prevent that from happening.
Mr Glidewell
submits that in this case (assuming that no approval was given) the breach of
planning control took place when tipping of builders’ rubble etc began about
1950 without approval. This was ‘development’ by making a material change of
use, not by carrying out ‘operations,’ and Thomas David v Penybont
RDC is therefore distinguishable. If no permission at all had been given,
the breach would have taken place once and for all when the change of use was
made about 1950 and no enforcement action could now be taken; the same must
apply to non-compliance with condition 1, subject to which permission was
granted. He submits that it would be absurd that (as Mr Martin accepts) the
appellants are now worse off than if they had made the change of use without
any permission at all.
Once the
distinction between development by operations and development by making a
material change of use is fully appreciated, it is in our judgment plain that
Mr Glidewell’s contention is right. The distinction between ‘development’ by
carrying out ‘operations’ and ‘development’ by making ‘a material change of
use’ is fundamental to the scheme of the Town and Country Planning Act 1971
(and of the earlier Town and Country Planning Acts). It might be difficult in
the abstract to say into which category the tipping of refuse falls, but
section 22(3)(b) makes it clear that it is to be regarded as a ‘change of use’
and not as ‘operations.’ The Divisional
Court so held in Roberts v The Vale RDC (unreported February 8
1977).* Thomas David v Penybont
RDC was concerned with continuing mining operations, and it was held that
‘the moving of every shovelful was a separate act of development and could be
the subject of an enforcement notice if carried out without permission’ (Lord
Denning MR at p 1531-B). It followed that although no enforcement notice could
be served in respect of operations carried out more than four years before the
service of the notice, it could be served in respect of continuing operations
after that date. But in that case
operations. They are sui generis.’ This
recognised the distinction between development by operations and development by
change of use and distinguished Britt v Buckinghamshire County
Council (1962) 60 LGR 430 which related to the latter type of development.
Edmund Davies LJ in Thomas David v Penybont RDC (at pp 1531-H to
1532-A) said:
Decisions
relating to change of use do not necessarily provide a sure guide in relation
to questions regarding the other activities which come within the definition of
‘development’ contained in section 12 of the Act of 1962. The former can
usually be pinpointed in time, though the process may be difficult; but the
‘carrying out of operations’ is a far more expansive phrase and may well have
more elastic implications in point of time.
*Reported as Roberts
v Vale Royal District Council (1977) 242 EG 811, [1977] 1 EGLR 103 and
(1977) JPL 369.
The situation
in this case in 1950 was exactly within section 22(3)(b). Two parts of the
quarry had already been used for tipping, but they had been filled up and the
occupiers wished to extend the area of the deposit.
In our
judgment, the ‘development’ in this case took place when tipping restarted in
or about 1950. That development would have been a breach of planning control if
no planning permission had been granted and was a breach of planning control
because the occupier had not complied with condition 1, subject to which
permission was granted.
The foundation
of the power to serve an enforcement notice is ‘a breach of planning control
after the end of 1963’ (section 87(1)), and ‘there is a breach of planning
control if development has been carried out . . . without the grant of planning
permission . . . or if any conditions or limitations subject to which planning
permission was granted have not been complied with’ (section 87(2)). In this
case, the relevant ‘development’ was the change of use by the tipping of
builders’ rubble, and so on, outside the two areas previously used which took
place in or about 1950, and the relevant ‘breach of planning control’ was the
non-compliance with condition 1, which also took place then. It is not
necessary to identify exactly the point of time at which the change of use took
place, but plainly it had taken place long before the end of 1963. In our view,
the further tippings which took place after the change of use and before 1963
did not constitute further development or further breaches of planning control.
Sections 87(3) and 88(1)(c) (except section 87(3)(c), which is irrelevant)
apply only to development by ‘operations’ and so do not apply to this case, but
by virtue of sections 87(1) and 88(1)(d) no enforcement action can now be taken
in respect of the breaches before the beginning of 1964.
In the course
of the argument, my Lord, Megaw LJ, suggested that the tipping which was
resumed in 1975 might constitute a fresh ‘change of use’ within the meaning of
section 22(3)(b) although the ‘land’ on which this new tipping took place was
‘comprised in a site already used for that purpose,’ if the new tipping was on
a part of the ‘site’ on which there had not previously been tipping. This point
was not investigated at the inquiry, and there is no evidence one way or the
other and no finding about it. Mr Brown and Mr Martin asked us not to express
any view on this point. We shall therefore assume that the tipping in 1975-1976
was on the same ‘land’ as the tipping between 1950 and 1963. On this
assumption, the tipping in 1975-1976 was not a change of use and was not the
carrying out of development, and did not constitute a breach of planning
control. The ‘development’ (ie the change of use) and the breach of planning
control (ie the non-compliance with condition 1) had taken place once and for
all in or about 1950. In our judgment, therefore, the council was not entitled
to serve the enforcement notice dated April 29 1976, and the appeal should
succeed under section 88(1)(d).
It might be
argued that because of the gap in tipping between the time when tipping stopped
about 1963 and when it restarted in 1975 there was a change of use when it
started again. But this would involve a finding that there was an abandonment
of the tipping use in or about 1963. This is a question of fact, which does not
seem to have been investigated at the inquiry and on which there is no finding
of fact. Further, if such development were to be relied on as the foundation of
an enforcement notice, the notice would have to be framed differently from that
on which the council rely in this case.
The appeal
will, therefore, be allowed and the matter remitted to the Secretary of State
under Order 94, rule 12(5) of the Rules of the Supreme Court for rehearing and
determination by him.
Leave to
appeal to the House of Lords was refused.