Town and Country Planning Act 1971–Appeal under section 246–Enforcement notice–Material change of use alleged from use for storage of vans to use for purposes of repair of motor vehicles–Section 88(1)(d) of Act–Whether change of use occurred before January 1 1964–Secretary of State differed from inspector as to whether primary use for repairs had been established before 1964–Secretary of State found that it had not, but failed to notify interested parties of this difference from inspector on a finding of fact–Breach of rule 12(2) of Town and Country Planning (Inquiries Procedure) Rules 1974–Appeal allowed–Matter remitted to Secretary of State to notify parties and reconsider decision in the light of representations
In this appeal
under section 246 of the Town and Country Planning Act 1971 Gerard Pollock
challenged a decision of the Secretary of State upholding with some
modifications an enforcement notice served on the appellant in relation to
property at 69a Bloomfield Road, London SE18. The Secretary of State, the first
respondent to the appeal, was not represented and took no part in the present
proceedings. The second respondent, the London Borough of Greenwich, was
represented as shown below.
Hon H D
Donovan (instructed by Braund & Fedrick) appeared on behalf of the
appellant; J Burford (instructed by borough solicitor, London Borough of
Greenwich) represented the respondent borough.
Giving judgment,
LORD WIDGERY CJ said: This is an appeal under section 246 of the Town and
Country Planning Act 1971 by Gerard Pollock against a decision of the Secretary
of State for the Environment upholding with modifications an enforcement notice
which had been served upon Mr Pollock by the London Borough of Greenwich in
respect of land known as 69a Bloomfield Road, SE18. The enforcement notice is
dated December 3 1975. It recites that it appears to the planning authority
that Mr Pollock has committed a breach of planning control. It goes on to
define that breach of planning controls in these terms: ‘The making of a
material change in the use of the said land from use for storage of vans to use
for the purposes of the repair of motor vehicles.’
The land in
question, as the evidence clearly shows, was a modest piece of back land in
south-east London which had at all material times been used to some degree for
the repair of vehicles and to some degree for the sale of vehicles. The precise
proportion of one activity to the other evidently varied
buying crashed cars and restoring them, when the principal activity no doubt
would be the restoration, and the sale that might follow would be secondary to
that. One finds other occasions when the land is used largely for the sale of
motor vehicles and when repairs are restricted to matters incidental to sale.
One has that range over which to roam, bearing in mind that what is said in the
enforcement notice is that there was an unauthorised change of use from use for
the storage of vans to use for the purposes of the repair of motor vehicles.
The
enforcement notice having been served, Mr Pollock, if he wanted to resist it,
had to find a ground in section 88 of the Town and Country Planning Act 1971
upon which to base his arguments. The official notice given to the local
authority seems to have referred to almost every authorised ground that there
is, but it is quite clear after a few minutes of argument that the only ground
which was relevant here was the one stated in section 88(1)(d), which reads:
‘in the case of a notice not falling within paragraph (c) of this subsection,
that the breach of planning control alleged by the notice occurred before the
beginning of 1964.’
That means
exactly what it says, that Mr Pollock could escape the complications and effect
of this notice if he was able to show, the onus as I understand it being on
him, that the material change of use complained of had occurred before the
beginning of 1964. Naturally enough, at the inquiry all turned on whether that
factor could be established. The inspector conducted the usual inquiry. He
found clearly and easily understood findings of fact, and in the end he reached
a conclusion as to what in his view was the solution to the crucial question,
namely, whether the change of use complained of had preceded or followed
January 1 1964.
One finds the
views of the inspector and the views of the Secretary of State conveniently
contained in paragraphs 7 and 8 of the Secretary of State’s decision letter.
Paragraph 7 faithfully reproduced what the inspector had to say on this
question, and the inspector had said this:
Apart from
the 2 years before the appellant took over the site
–I pause there
to interject that those were the years between 1964 and 1966–
there is no
basic disagreement as to the nature of the various uses of the site before the
end of 1963. Repairs were a continuous part of those various uses, either to
cars or lorries and either with or without sales. Although the present use is
almost wholly one of car repairs, this is not so significantly different from
those same various repair uses as to constitute a material change therefrom.
But the intervening 2 years, preceding the alleged use, have also to be
considered as regards use. Evidence as to the use of the site in the immediate
period prior to 1966 differed, but I prefer the evidence of the appellant to
the council’s statements on this period and have come to the conclusion that
the use of the site included the repair of vehicles without a break since
before the end of 1963, that the appeal succeeds on grounds (b) and (d) and
that the notice should be quashed.
The inspector
there is concluding that the activities at the end of 1963 did justify the
argument that the use had been undertaken before that date, but it is
necessary, I think, to point out in passing that the inspector does not apply
the precise and correct rules; he should have been considering not merely
whether any repairs had taken place continuously through this period; it was
absolutely vital that the primary use for repairs should have been achieved
before 1964 if the appellant’s case was to prosper. That was the inspector’s
view.
Now the
Secretary of State makes this comment upon it in paragraph 8 of the decision
letter:
It is noted
that your client gave evidence that immediately before he moved on to the
appeal site in 1966 it was used by a car dealer who repaired and sold cars from
the site. The view is taken that the character of the use of land is determined
by its primary use and not by parts of its use. It is considered that although
the car dealer who formerly occupied the site may have undertaken major
repairs, such repairs were ancillary to the primary use of the land for the
sale of cars. It is also considered that after your client moved on to the
appeal site in 1966 what was formerly an ancillary use of the land for the
repair of motor vehicles grew to become the primary use of the site, sales of
cars on the site having ceased. It is considered that this so altered the
character of the use of the site as to involve a material change of use
constituting development for which planning permission was required but not
obtained.
That, if I may
say so, is an immaculate statement of the law so far as the Secretary of State
is concerned. The only real issue on this part of the case has been whether
there was any evidence in the inspector’s inquiry which would justify those
conclusions–the familiar case where one has to search for the evidence to
support what on the face seems to be a correct answer.
In my
judgment, one can just about find enough evidence here to justify the
conclusion of the Secretary of State. If this were the only point in the case,
I would dismiss the appeal on that account. But it is not the only point in the
case because there is a modest little safeguard contained in the regulations to
deal with instances where the Secretary of State finds himself in difference
from his inspector.
What is no
doubt necessary in such cases is to provide some-how machinery whereby the
matter can be referred to the interested parties before any new decision is
taken based on new circumstances which were not argued below. That is catered
for in rule 12 of the Town and Country Planning (Inquiries Procedure) Rules
1974 (SI 1974 No 419), the relevant part being this:
(2) Where the Secretary of State–(a) differs from
the appointed person on a finding of fact . . . and by reason thereof is
disposed to disagree with a recommendation made by the appointed person, he
shall not come to a decision which is at variance with any such recommendation
without first notifying the applicant, the local planning authority and any
section 29 party who appeared at the inquiry of his disagreement and the
reasons for it and affording them an opportunity of making representations in
writing within 21 days. . . .
One sees that,
if the Secretary of State is minded to differ from the inspector on a finding
of fact, he must go through the procedure of giving those notices and giving
interested parties an opportunity of being heard. That was not done in this
case, and the contention before us is that this was not a case where the
Secretary of State was disturbed about a finding of fact; it was a case where
the Secretary of State was concerned about a conclusion of fact. It is sought
to make a distinction between findings of fact and conclusions of fact by
virtue of which distinction it would be necessary for the Secretary of State to
follow the rule 12 procedure if he is handling a finding of fact but would not
be necessary to do so if it was a mere matter of conclusion.
I am not at
all sure that that subtle distinction applies here at all. It seems to me in
this case at all events that the Secretary of State is not going to accept the
inspector’s conclusions as to whether the repair use was or was not a primary
use on January 1 1964. I should have thought that was the sort of situation
which calls for rule 12, and I would try to construe the rules so as to produce
that result if I can. I think it can be done, and I would, therefore, allow the
appeal on that point and not on the earlier argument. That will mean that the
matter must go back to the Secretary of State with an indication that he should
give notice to the interested parties in accordance with rule 12 and reconsider
his decision when he has had their representations.
SHAW LJ and
LLOYD J agreed.
The appeal was dismissed with costs, to be paid by
the respondent borough.
