Town and Country Planning Act 1971 — Enforcement notice — Appeal from decision of deputy Queen’s Bench judge — Mobile home and caravans stationed on small area of appeal site, the rest being used for agriculture — Inspector held to have failed to consider alternative methods of achieving the correct result, taking account of the parties’ representations — Appeal from deputy judge allowed and owner-occupier’s case against enforcement notice remitted to Secretary of State to redetermine in the light of court’s opinion
site consisted of a small area (OS 9744) of 0.4 of an acre, on which stood a
stable block, together with an area used for grazing horses of about five acres
— Planning permission had been granted for the stable block — The present
litigation arose from an enforcement notice served by the planning authority on
the owner-occupier, Mrs Gore, alleging a breach of planning control consisting
of a change of use to the mixed uses of agriculture, the stationing of a mobile
home for residential purposes and the stationing of two touring-type caravans
(the home and the caravans are for convenience referred to as ‘the caravans’) —
The notice required the cessation of the use and the removal from the land of
the caravans — Mrs Gore, appealed to the Secretary of State, seeking planning
permission to keep the caravans on OS 9744 and representing that the five acres
which had been used for agriculture should not have been included in the
enforcement notice — The course taken by the inspector was to allow the appeal,
quash the enforcement notice and grant planning permission in respect of the
whole appeal site for the continuation of the mixed use of agriculture and
stationing of the caravans — The permission was subject to conditions,
including a scheme to be approved by the planning authority for the siting of
the caravans — The inspector’s intention was that the caravans should remain on
OS 9744 and that there should be no caravans on the five acres — The planning
authority appealed to the High Court under section 246 of the 1971 Act — Mr
Malcolm Spence QC, sitting as a deputy judge of the Queen’s Bench Division,
dismissed the appeal — The planning authority appealed to the Court of Appeal
submissions on behalf of the planning authority and the Secretary of State (Mrs
Gore was not represented), the Court of Appeal concluded that, once the
inspector had decided that it was appropriate to grant permission for the
retention of the caravans but to restrict them both in number and in location
to OS 9744, there were three possible courses which he could have taken — These
were:
9744 from the site to which it applied, to grant planning permission for the
retention of the three caravans on OS 9744 (with landscaping conditions) and to
uphold the enforcement notice in relation to the five acres;
the retention of the caravans on a site limited to OS 9744 (with landscaping
conditions) and to allow the appeal by quashing the enforcement notice;
allowing the appeal generally and granting planning permission for the mixed
use of the whole appeal site subject to conditions such as he imposed
alternative was available to the inspector to adopt as a matter of law — It
might have been unfair to Mrs Gore, who wanted only planning permission for OS
9744 and who represented that there had been no breach of planning control in
respect of the five acres; this argument was, however, one for the Secretary of
State rather than the court — The second alternative, which would have left the
existing use of the five acres as its lawful use, would effectively have
achieved what both Mrs Gore and the planning authority had wanted — It did not
appear that the inspector had considered adopting either the first or the
second alternative, but it was his duty to do so — As he intended to grant
planning permission for the retention of the caravans on OS 9744, he was under
a duty as a matter of law to consider the best way of achieving this object and
to do so in relation to the representations made to him
against the decision of Mr Malcolm Spence QC was accordingly allowed — The case
of Mrs Gore against the enforcement notice was remitted to the Secretary of
State to redetermine in accordance with the judgment of Glidewell LJ, whether
by a rehearing or other procedure as the Secretary of State decided
The following
cases are referred to in this report.
Bath City
Council v Secretary of State for the Environment
(1984) 47 P&CR 663
Hammersmith
London Borough Council v Secretary of State for
the Environment (1975) 73 LGR 288; 30 P&CR 19, DC
This was an
appeal by the planning authority, Newbury District Council, from a decision of
Mr Michael Spence QC, sitting as a deputy judge of the Queen’s Bench Division,
who had dismissed the council’s appeal from the inspector’s decision in
relation to an enforcement notice served by the appellants on the
owner-occupier of the appeal site. The enforcement notice was concerned with
the stationing of a mobile home and two caravans on a small part of the appeal
site, which was at Church Lane, Burghfield, Berkshire.
John Steel
(instructed by Sharpe Pritchard) appeared on behalf of the appellant authority;
Robert Joy (instructed by the Treasury Solicitor) represented the Secretary of
State for the Environment; Mrs Gore, the second respondent, did not appear and
was not represented.
Giving the
first judgment at the invitation of Slade LJ, GLIDEWELL LJ said: The
land to which this appeal relates is an area of nearly five acres (‘the appeal
site’) at Church Lane, Burghfield, Berkshire. It is owned and occupied by the
second respondent, Mrs Gore. On the northern part of the appeal site, OS 9744,
an area 0.4 of an acre in extent, there stands a stable block for which
planning permission was granted after its erection in 1986. The remainder of
the appeal site is used for grazing horses. I shall call this ‘the five acres’.
On May 4 1988
the appellants, Newbury District Council (‘the council’), served upon Mrs Gore
an enforcement notice which related to the whole of the appeal site. This
alleged that there had been a breach of planning control, namely a change of
use of the land to the mixed uses of:
(i) agriculture;
(ii) stationing a mobile home for residential
purposes;
(iii) stationing two touring-type caravans.
The notice
required Mrs Gore to cease to use the land for the stationing of the mobile
home and the two touring-type caravans and to remove them from the land.
On May 20 1988
Mrs Gore appealed to the first respondent, the Secretary of State for the
Environment, against the enforcement notice on one sole ground, namely that
planning permission ought to be granted for the development to which the
enforcement notice related. The appeal was dealt with by way of written
representations. The representations submitted on behalf of Mrs Gore said that
the appeal site ‘includes land in the order where no breach of planning control
has occurred’. This was accompanied by a plan showing housing development in
Burghfield, which delineated most of OS 9744 by a dashed red line with the
notations: ‘Where planning permission ought to be granted for mobile home and
caravan’ and ‘The only land to which the Enforcement Notice is relevant’. In my
view, it is clear that Mrs Gore’s agent was submitting on her behalf:
(i) that she was seeking planning permission to
retain the mobile home (which I shall call a caravan) and the two touring-type
caravans on OS 9744, and
(ii) that the five acres were used only for
agriculture, that there had been no development on this land and thus that it
ought not to have been included in the ambit of the enforcement notice.
It is only
right to say that Mr Malcolm Spence QC (sitting as a deputy judge of the
Queen’s Bench Division), from whose decision this is an appeal, did not read
these representations as conveying so clear a message.
The appeal was
decided by an inspector of the Department of the Environment. He dealt with the
issue about the five acres first. At para 4 of his decision letter, dated
December 21 1988, he said:
You say that
the notice is at fault because it includes land on which you contend that no
breach of planning control has occurred. However I think it right that the
notice should relate to the appellant’s land as a whole since the allegation in
the notice refers, inter alia, to items, namely caravans, which are
physically capable of being stationed anywhere on the appeal site. I take the
view too that the allegation in the notice reasonably describes the use being
made of the enforcement notice site as a whole at the date the notice was
issued, and that that mixed used was in breach of planning control.
The inspector
then went on to consider whether it would be right to grant planning permission
for the retention of the mobile home and the two caravans on OS 9744. He
concluded that if no more caravans were brought on to the land, if they were
sited only on OS 9744 and if some further landscaping were undertaken
the
continuing presence of the caravans would not cause demonstrable harm to the
appearance of the area.
He said that,
in his view, his requirements could be secured by conditions on the planning
permission.
Having so
concluded, the course adopted by the inspector was to allow the appeal, to
direct that the enforcement notice should be quashed and to grant planning
permission in respect of the whole appeal site for:
the continued
use of land . . . for a mixed use of agriculture, the stationing of a mobile
home for residential purposes, and the stationing of two touring-type caravans,
subject to the following conditions:
1. Not more
than one mobile home shall be stationed on the land for residential purposes at
any time, and not more than two touring-type caravans shall be stored on the
land at any time;
2. Within
three months of the date of this letter a scheme for the siting of the mobile
home and two touring-type caravans on the land should be submitted to the Local
Planning Authority for approval. Any mobile home or touring-type caravans
stationed on the land shall be sited in accordance with the scheme within three
months of its approval.
There was a
third condition requiring a scheme for landscaping to be submitted to and
approved by the council.
It is quite
clear that what the inspector intended to achieve was that the three caravans
should remain on OS 9744 and that there should be no caravans on the five
acres. He envisaged that this would be achieved by the council only being
willing to approve a scheme for the siting of the caravans which put them all
on OS 9744.
The council
appealed to the High Court under section 246 of the Town and Country Planning
Act 1971 against the inspector’s decision. On March 2 1989 Mr Malcolm Spence QC
dismissed the appeal. With leave granted by him, the council now appeal to this
court.
An appeal to
the Secretary of State against an enforcement notice lies under section 88 of
the 1971 Act. The ground of appeal relied on by Mrs Gore is contained in
section 88(2)(a).
Section 88A,
so far as is material, provides:
(1) On the determination of an appeal under
section 88 of this Act, the Secretary of State shall give directions for giving
effect to the determination, including, where appropriate, directions for
quashing the enforcement notice or for varying its terms.
(2) On such an appeal the Secretary of State may
. . . give directions for varying its terms, if he is satisfied that the . . .
variation can be made without injustice to the appellant or to the local
planning authority.
By section
88B:
(1) On the determination of an appeal under
section 88 of this Act, the Secretary of State may —
(a) grant planning permission for the development
to which the enforcement notice relates or for part of that development or for
the development of part of the land to which the enforcement notice relates;
(b) . . .
(c) determine any purpose for which the land
may, in the circumstances obtaining at the time of the determination, be
lawfully used having regard to any past use of it and to any planning
permission relating to it.
(2) In considering whether to grant planning
permission under subsection (1) of this
section, the Secretary of State shall have regard to the provisions of the
development plan . . . and to any other material considerations; . . .
(3) Where an appeal against an enforcement notice
is brought under section 88 of this Act, the appellant shall be deemed to have
made an application for planning permission for the development to which the
notice relates and, in relation to any exercise by the Secretary of State of
his powers under subsection (1) of this section —
(a) any planning permission granted under that
subsection shall be treated as granted on that application; . . .
Section 92 of
the 1971 Act deals with the effect of planning permission on an enforcement
notice. Section 92(1) provides:
If, after the
service of a copy of an enforcement notice, planning permission is granted 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 discontinuance of that use . . .
An appeal to
the High Court against a decision of the Secretary of State or an inspector
appointed on his behalf under section 246 may only be made on a point of law.
Mr Steel, in
an able argument on behalf of the council, submits that the course adopted by
the inspector was undesirable from the public point of view, in that, under the
planning permission granted by the inspector, though the council could control
the actual siting of the caravans, they could not control the use of the five
acres for purposes ancillary to the occupation of the caravans, eg for the
parking of motor vehicles in connection with the residential caravan. If the
planning permission had been limited to OS 9744, he submits, it would have been
a breach of planning control for the five acres to be used for any purpose
other than agriculture. Moreover, if the enforcement notice had been upheld in
relation to the five acres, an attempt to use the five acres for any purpose
other than agriculture would have been a breach of the enforcement notice for
which the council could prosecute. In other words they would not be required to
serve a fresh enforcement notice in order to ensure that the five acres were
not used for any unauthorised purpose.
Mr Steel
submits that, as a matter of law, where a course can be adopted which upholds
an enforcement notice without imposing any disadvantage on the landowner, this
course should be adopted. In support of his submission he refers us to two
decisions of the Divisional Court.
In Hammersmith
London Borough Council v Secretary of State for the Environment (1975)
30 P&CR 19, a house was being used to accommodate large numbers of young
people who came to London from overseas on holiday. The council served an enforcement
notice
purposes of a guest house. On appeal, the Secretary of State held that the
phrase ‘guest house’ was not an appropriate description of the actual use of
the house and that some such phrase as ‘holiday hostel’ would be more
appropriate. He took the view that this was a material error in the enforcement
notice and therefore allowed the appeal and quashed the notice. On an appeal by
the council, the divisional court held that there would have been no injustice
to the owner of the house if the Secretary of State had amended the enforcement
notice to relate to whatever he thought was an appropriate description of the
use to which it was being put, and then upheld the notice. At p 21 Lord Widgery
CJ, in a judgment with which the other members of the court agreed, said:
It seems to
me that the Secretary of State is perfectly entitled, and indeed bound in an
appropriate case, to choose his own label to describe the activity which is
complained of if he thinks that the language employed by the draftsman of the
notice is unsuitable. It is, I think, the Secretary of State’s duty to try to
get the enforcement notice in order, and if one of the defects in the notice is
that an unsuitable label has been used I am entirely in favour of the
proposition that the Secretary of State can take steps to substitute a
different and more suitable label.
This decision
was followed by Woolf J in Bath City Council v Secretary of State for
the Environment (1984) 47 P&CR 663, where the enforcement notice
related to a failure to obtain listed building consent.
Mr Jay, for
the Secretary of State, argues that these authorities do not apply to the
situation in the present case, since the inspector has not upheld the
enforcement notice nor sought to do so. On the contrary, he has allowed the
appeal by granting planning permission for the retention of the three caravans
on OS 9744. In reply, Mr Steel makes two alternative submissions. First, he
submits that the principle in the authorities which I have just quoted applies
equally where the Secretary of State decides that the proper course is to grant
planning permission in relation only to part of the land subject to the
enforcement notice and to uphold the notice in relation to the rest of the
site. In effect, he submits, this is what the inspector was trying to achieve
in the present case. Alternatively, since Mrs Gore’s agent in his written
representations on her behalf had made it entirely clear that what she was
seeking was planning permission to retain the three caravans on OS 9744, it was
wrong of the inspector to grant a planning permission which was wider than the
permission Mrs Gore was seeking.
Once the
inspector had decided that it was appropriate to grant planning permission for
the retention of the three caravans, but to restrict them both in number and to
OS 9744, there were, in my view, three possible ways in which he could achieve
this objective. They were:
(i) To vary the terms of the enforcement notice
by deleting OS 9744 from the site to which it applied, to grant planning
permission for the retention of the three caravans on OS 9744 with conditions
as to landscaping, and to uphold the enforcement notice in relation to the five
acres.
(ii) To grant planning permission as before for
the retention of the three caravans on a site limited to OS 9744 with
conditions as to landscaping, and to allow the appeal by quashing the
enforcement notice.
(iii) To follow the course he adopted by allowing
the appeal generally and granting the planning permission for the mixed use of
the whole appeal site, subject to conditions such as those he imposed.
Alternative
(i) was, in my view, available for the inspector to adopt as a matter of law.
He was empowered to vary the enforcement notice by deleting OS 9744 from its
ambit by section 88A(1). He had already decided that it was appropriate that
the enforcement notice should apply not merely to OS 9744 but to the whole
appeal site. Thus, he could properly have upheld the enforcement notice
prohibiting a mixed use of the truncated appeal site, the five acres.
Mr Jay,
however, points out that the adoption of this course would have been unfair to
Mrs Gore. Her agents had made it clear that she only wanted planning permission
for OS 9744. It would be unfair to uphold the enforcement notice in relation to
the five acres when it was not alleged that there had been any breach of
planning control on this land. This argument, however, is one for the Secretary
of State rather than for this court to consider.
If the
inspector had considered the first alternative, but decided not to adopt it
because he considered it would be unfair, the second alternative was open to
him. It would have given Mrs Gore what apparently she was asking for and at the
same time would not have allowed any ancillary use of the five acres. In other
words, the lawful use of the five acres would remain its existing use. Indeed,
the inspector could have gone further and made use of his power under section 88B(1)(c)
to determine that the five acres might only lawfully be used for the purposes
of agriculture. This would effectively have achieved what both Mrs Gore and the
council wished. Of course, if Mrs Gore had thereafter sought to use the five
acres for any other purpose another enforcement notice would have been
necessary.
It is not
clear from the inspector’s decision letter whether he ever considered taking
either the first or the second course. Since what he intended to do was to
grant planning permission for the retention of the three caravans on OS 9744,
he was, in my view, under a duty as a matter of law to consider the best way of
achieving this, and to do so in relation to the representations made on behalf
of Mrs Gore. As I have already said, he could as a matter of law have upheld
the enforcement notice by adopting the first course. Alternatively, if he had
adopted the second of the courses I have outlined above, he would
simultaneously have given effect to the representations made on behalf of the appellant
to him, Mrs Gore, and achieved what the council wanted at least as their second
alternative, that is to say the restriction of any development on OS 9744.
I think it can
properly be said that the principle enunciated by Lord Widgery CJ in the Hammersmith
case applies to the unusual situation with which the inspector was
confronted in the present case. I thus think that as a matter of law he was
under a duty to consider the first and second alternatives and that he failed
to do so or at least gave no indication that he had done so.
While I am
reluctant to disagree with the views of somebody so experienced in this field
of law as Mr Spence, for the reasons I have given I would allow this appeal. If
my brethren agree, the order I propose is that Mrs Gore’s appeal against the
enforcement notice should be remitted to the Secretary of State for him to
redetermine in accordance with the opinion I have expressed above. Whether this
will require a rehearing, or what procedure he should adopt in order to effect
a redetermination, will be a matter for the Secretary of State himself to
decide.
PARKER LJ and SLADE LJ agreed, and did not add anything.
Appeal
allowed with costs.
