Town and Country Planning Act 1971, section 246–Appeal on point of law against decision of Secretary of State for the Environment upholding enforcement notice served by planning authority–Change of use of repair garage to bus depot for bus and coach service including washing, fuelling and maintenance–Secretary of State correct in deciding that planning permission was required, but he should have considered the effect of section 23(9) in safeguarding a previous lawful use–Enforcement notice should have contained some form of safeguard to protect activities within the scope of section 23(9)–Appeal allowed and matter remitted to Secretary of State
This was an
appeal by Mr and Mrs George Day and Mid Warwickshire Motors Ltd against a
decision of the Secretary of State upholding an enforcement notice served by
Solihull Metropolitan Borough Council in respect of the use of land at Balsall
Street East, Balsall Common, Solihull.
Hon Hugh
Donovan (instructed by Norman Carless & Co, of Halesowen) appeared on
behalf of the appellants; Harry Woolf (instructed by the Treasury Solicitor)
represented the Secretary of State, the first respondent. The second respondents,
Solihull Metropolitan Borough Council, were not represented and took no part in
the proceedings.
Giving
judgment, LORD WIDGERY CJ said: This is an appeal which is brought under
section 246 of the Town and Country Planning Act 1971 by Mr and Mrs George Day
and a limited company called Mid Warwickshire Motors Ltd, who appeal against a
decision of the Secretary of State for the Environment upholding, subject to
certain amendments, an enforcement notice which had been served upon the
appellants by the local planning authority in respect of land belonging to them
within that authority’s area.
The land in
question is situated at Balsall Street East, Balsall Common, Solihull. To put
the matter broadly first of all, that land, including as it does a substantial
building, had until the appellants’ interest in it was begun been used as a
repair garage for motor cars. We have seen very little detail about how this
garage was run, but it is quite clear that motor cars were the principal
vehicles in use, and it is quite clear it was run on a commercial basis. The
site includes the buildings. It in due course was conveyed to the present
appellants, and they proceeded to develop it and to use it. As is beyond all
doubt in this case, the user was in the hands of the appellants principally as
a bus depot, by which I mean it had accommodation for buses and accommodation
for passengers and matters of that kind enabling it to be used as a single unit
for part of the organisation of a bus service which the appellants were
acquiring.
The local
authority did not like this change to a bus depot, and they accordingly served
upon the appellants on August 7 1975 an enforcement notice which recited a
breach of planning control and required the present appellants, pursuant to the
authority of the council, to take steps to remedy the breach of planning
control. I do not find it necessary to go in full detail into all the steps to
be taken because the real core of this appeal is to be found in the first
category of steps required to be taken by the notice, and that is paragraph
2(1) of the notice, which requires the appellants to discontinue the uses of
the land specified in paragraphs (a), (c) and (d) of part 2 of the schedule and
not to use the land for any purpose in connection with the operation of a bus
and coach station. Then, when one goes to the schedule to see in more detail
exactly what the prescription is, one finds under paragraph B(a):
The
development alleged–(a) the use of the land for the repair, maintenance,
servicing, cleaning, parking and storage of motor coaches, motor-buses and
staff and commercial vehicles in connection with the operation of a bus and
coach service.
I have already
referred to the fact that the local authority required a cessation of that
substantial use. The details are contained in the paragraph to which I have
referred earlier. The appellants appealed to the Secretary of State, as of
course they were entitled to do, and after a time his decision was published
and his decision was adverse to the appellants. Accordingly, they come before
this court with the right of appeal on a point of law only, not, I emphasise,
on any question of fact.
In the
decision of the Secretary of State, which contains his own views and
conclusions, there is one paragraph which I find to be an extremely valuable,
compact and accurate statement of the considerations which apply in this case,
and I shall read it exactly as the Secretary of State has signed it:
In support of
their appeals on ground (b) your clients claimed that the present use of the
site was as a light industrial use and that, as the local planning authority
accepted that the site had an established use for light industrial purposes,
there had been no material change of use. It is agreed with the inspector that
the planning unit to be considered in this case is the appeal site (as
corrected). The view is taken that the varied activities carried out on the
appeal site, which include the washing, checking, fuelling, repair, servicing
and maintenance of vehicles, and use of part of the building for offices, are
all elements of your clients’ coach hire business. It is not considered that
the use of the workshop building for the repair, servicing and maintenance of
vehicles amounts to an independent use as an industrial building but that such
use is part of the overall use of the site for the purposes of coach and bus
hire business, a use which does not fall into any of the classes set out in the
Town and Country Planning (Use Classes) Order 1972. The view is taken that the
character of the coach business use is entirely different from the previous use
of the site carried on by Forwards Engineering by virtue of the site and number
of vehicles involved and the scope of the operations carried out, the latter
use having been mainly concerned with the servicing, repair and maintenance of
high-performance cars and racing cars. The fact that some of the activities now
carried out at the appeal site are of a similar nature to those carried out in
connection with this previous use does not reduce the distinct disparity
between the primary uses involved.
If one stops
to study the text for a moment, one sees both the appellants and the Secretary
of State adopting quite correctly the whole site as the planning unit for
present purposes. The appellants are saying: ‘The site was originally used for
light industrial before we had it. Its present use contains an element of light
industrial because we repair our buses on the site. Therefore, one has a
sufficient similarity between the former use and the latter use to justify a
contention that no planning permission was required for the changeover because
no planning permission was required, or because the Use Classes Order covers
that aspect of the matter.’
The Secretary
of State is saying, again quite rightly in my view, that one must look at this
as being applied to the unit as a whole, but one must look at the primary use
applied to the unit as a whole, and only if the primary use before and after
comes within the scope of the Use Classes Order, only then, is the change-over
under those regulations permissible, because one must give due effect to the
Use Classes Order and the terms of the Town and Country Planning Act before one
can finish with this case.
So far I agree
with what the Secretary of State has said, and I think his statement of the
situation is admirable, but there are certain other steps which have to be
taken. Under section 23(9) of the Act it is provided thus: ‘Where an
enforcement notice has been served in respect of any development of land,
planning permission is not required for the use of that land for the purpose
for which (in accordance with the provisions of this Part of this Act) it could
lawfully have been used if that development had not been carried out.’
That is a very
important line of retreat for a landowner who has begun to carry out
development whose right to do so is challenged, and who wishes to retreat and
withdraw into his shell. Section 23(9) gives permission to go back to any use
of the land which, in accordance with the Act, could lawfully have been carried
out if the development had never occurred.
To see what
sort of latter use might have been possible here had the development never
occurred, one turns finally to the Town and Country Planning (Use Classes)
Order 1972 and observes the definition of an industrial building. It means:
A building
(other than a building in or adjacent to and belonging to a quarry or mine and
other than a shop) used for the carrying on of any process for or incidental to
any of the following purposes, namely: (a) the making of any article or of part
of any article, or (b) the altering, repairing, ornamenting, finishing,
cleaning, washing, packing or canning, or adapting for sale, or breaking up or
demolition of any article, or (c) without prejudice to the foregoing paragraph,
the getting, dressing or treatment of minerals . . . .
‘Light
industrial building’ means:
An industrial
building (not being a special industrial building) in which the processes
carried on or the machinery installed are such as could be carried on or
installed in any residential area without detriment to the amenity of that area
by reason of noise, vibration, smell, fumes, smoke, soot, ash, dust or grit.
‘General
industrial building’ means:
An industrial
building other than a light industrial building or a special industrial
building.
The matters to
which the Secretary of State should give his attention, and I am not satisfied
he did so, are to see whether any use which was preserved and safeguarded by
section 23(9) in his application of the Use Classes Order had been adequately
preserved and safeguarded in the enforcement notice because it is now settled
beyond any doubt that when an enforcement notice is being drafted, and the
existing uses of the property are in some cases capable of suppression by
enforcement and in other cases not, then the draftsman of the enforcement
notice must see to it that the notice does not prohibit any use or activity
which the landowner is entitled to carry on by virtue of any provision of the
relevant legislation.
Here I can see
no provision in the enforcement notice, as amended as it left the Secretary of
State, to safeguard the possibility of this land going back in its entirety to
a light industrial use. Whether or not the use first prohibited in the
enforcement, that is to say the use for the repair and maintenance etc of motor
buses, is or would be light industrial use is a matter upon which we express no
view because it is a matter of fact and not for us to decide. But that it might
have been seems to me to be clear, and, therefore, I do not think the
enforcement notice should have gone out, as it were, in its present form
without some form of safeguard to cover and protect such activities as might in
the particular instance be within the scope of section 23(9).
I would,
therefore, allow this appeal and I would send the matter back to the Secretary
of State with an invitation to consider the impact of section 23(9) on this
case and to make such findings of fact, and from them such amendments of the
notice, as seems to him to be appropriate. I shall not attempt to indicate the
circumstances in which such a finding ought to be obtained in this case, but it
is perhaps worth remembering that in order that any light industrial activity
can be included here as the present use of the property such an activity must
relate to the whole of the property as a planning unit, and it must relate to a
light industrial use throughout the primary purpose for the purposes for the
Use Classes Order.
Having said
that, I do not think I can usefully add anything for the guidance of the
Secretary of State, and I would allow the appeal in the circumstances.
CUMMING-BRUCE
LJ and NEILL J agreed.
The appeal was allowed, the Secretary of State to pay
the costs of the appeal to the Divisional Court.
