Town and Country Planning Act 1971 — Town and Country Planning (Use Classes) Order 1972 — Appeal against a decision of inspector dismissing appeal against enforcement notice served by planning authority — Use of premises as wholesale warehouse or repository (Class X in schedule to order) — Use of vaults over a long period for storage of documents — Appellants used vaults for storage of carpets which were delivered to the site by manufacturers for storage pending distribution to appellants’ shops — Planning authority served enforcement notice alleging that the use of storing carpets was without planning permission — On appeal inspector accepted that the use of the vaults for storage of carpets was a use as a repository within Class X and thus within the same class as the storage of documents — He considered, however, that the scale of operations, with the additional traffic, noise and movement, constituted a material change of use for which planning permission was required — Held that the inspector was in error — Once the inspector concluded that the change was one within Class X he should not have proceeded to consider whether the change was material — Use for another purpose within the class does not constitute development — Appeal allowed
The
appellants, Carpet Decor (Guildford) Ltd, appealed against the decision of an
inspector appointed by the Secretary of State dismissing an appeal against an
enforcement notice served by Guildford Borough Council. The notice related to
the use by the appellants of vaults under a site at Pewley Hill Fort, near the
top of Pewley Hill, south east of Guildford. The appellants had constructed a
parking area and ramp on the site and used the vaults for the storage of
carpets.
Michael Barnes
QC (instructed by Janners) appeared on behalf of the appellants; Joseph Harper
(instructed by the solicitor to Guildford Borough Council) represented the
second respondents; the first respondent, the Secretary of State for the
Environment, was not represented and took no part in the proceedings.
Giving
judgment, SIR DOUGLAS FRANK QC said: The appellants apply to have quashed a
decision of an inspector appointed by the first respondent whereby he dismissed
an appeal against an enforcement notice served by the respondent council. The
Secretary of State being willing to submit to a judgment does not appear, but
the council appear by Mr Harper to oppose the application.
The site of
the land concerned lies half a mile south east of Guildford near the summit of
Pewley Hill. It originally formed part of Pewley Hill Fort, constructed about
100 years ago, but generally is within a low-density residential area. Within
the site are a parking area and a ramp, both of which have been constructed by
the appellants. The ramp descends to an entrance to underground vaults, in
which the appellants store carpets.
I turn now to
the history of the use of the vaults. From 1938 to 1946 they were used by a
building society for the storage of documents. From 1950 to 1978 they were used
by the National Provincial Bank also for the storage of documents. In 1978 they
were leased to the appellants, who constructed the parking area and ramp and
then used the vaults for the storage of carpets. Deliveries to the site are
made by manufacturers for storage in the vaults pending distribution to the
appellants’ shops.
On July 20
1979 the council served an enforcement notice on the appellants alleging that
the use of the vaults for the storage of carpets and the construction of the
ramp and parking area had been carried out without the grant of planning
permission. The appellants appealed on grounds (a), (b), (f) and (g) of section
88 of the Town and Country Planning Act 1971. It is common ground that if
planning permission was not required for the change of use there was no
planning objection to the parking area and ramp.
It is also
common ground that the storage of documents by the bank and the building
society came within Class X of the Schedule to the Town and Country Planning
(Use Classes) Order 1972. That was considered by the inspector in his
conclusions where he said:
I agree with
the view put on your clients’ behalf that their use of the vaults as a
repository also falls within the same Class, if only because the House of Lords
decision removes the possibility of any doubt about it. It follows that, in so
far as the application of the Use Class argument is concerned, there has been
no development within the meaning of Class X of the 1972 Order. I am not,
however, convinced that the change from the storage of archives to the storage
of carpets within that Class can be said to be not a material one in this case.
The notice alleges the storage and distribution of carpets, and while it may be
that the latter aspect is ancillary to the former, there can be little doubt
from the evidence that as a matter of fact and degree the present scale of
operations represents a marked and significant change in planning terms from the
simple storage of papers. The amount of traffic now generated, the transfer
operations between the vaults and the hardstanding areas and the degree of
noise and movement to which these give rise cannot, in my opinion, be regarded
as anything but totally different from the previous storage use. Therefore I
conclude that the change of use is material and needed planning permission
which has not been obtained. Consequently the appeal under ground (b) fails.
It seems to me
that the paragraph I have quoted contains an inherent misconception. Planning
permission is required only for the carrying out of development, that is to say
for certain operations and the making of any material change of use. Unless
development has been carried out, planning permission is not required and,
therefore, any exceptions to the definition of development can apply only to
something which would otherwise constitute development. Section 22 of the Town
and Country Planning Act 1971 defines ‘development’ in the way I have
summarised and then in subsection (2) sets out a number of operations or uses
which are not to be taken to involve development and includes ‘(f) in the case
of buildings or other land which are used for a purpose of any class specified
in an order made by the Secretary of State under this section, the use thereof
for any other purpose of the same class.’
It follows from my reasoning that that exception, which is expressed in
Class X of the Use Classes Order, can apply only to a change of use which is
material. It further follows that once the inspector had concluded that the
change was within Class X, he was wrong then to have gone on to consider
whether the change was material.
Mr Harper for
the council argued that the starting point was the planning permission granted
in 1950. That permission was in the usual form granted with the printed words
granting permission for
variations from the deposited plans and particulars will be permitted unless
previously authorised by the Guildford Borough Council’. The development as
described in the application form was ‘as store for papers of National
Provincial Bank Ltd and as residence for caretaker in employ of said Bank but
for no other type of store or for any other person or corporation’. The
reference to the residence of a caretaker was to part of the application
relating to a dwelling-house. In answer to another question requiring the
applicants to ‘state whether the permission is desired for permanent development
or use for a limited period and if the latter for what period’, the applicants
replied ‘during ownership by National Provincial Bank Ltd only’.
Mr Harper
argued that both the use and its duration were defined in the application and
incorporated in the permission and therefore cut down the scope of the
permission, thereby making it not open to the appellants to rely on the Use
Classes Order. He referred to the City of London Corporation v Secretary
of State for the Environment (1972) 23 P&CR 169, where it was held that
a condition which prohibited the use of the premises within the same use class
was intra vires. Alternatively, he argued that if the permission in this
case did not, in its terms, contain a condition restricting the use and
duration, then it was open to the court to imply one, and he cited Kwik Save
Discount Group Ltd v Secretary of State for Wales [1981] JPL
198* He referred also to Williamson
and Stevens v Cambridge County Council (1977) 34 P&CR 117 LT as
authority for the proposition that words in a permission can have a function of
significance. He also cited Wilson v West Sussex County Council
[1963] 2 QB 764. He submitted that the planning permission was limited in time
to the ownership by the National Provincial Bank.
*Reported in
full at (1980) 257 EG 169, [1981] 1 EGLR 134.
Mr Barnes said
that the true ratio of the West Sussex case is that when planning
permission is given to change from use A to use B and, in fact, the change is
from use A to use C, then however similar are B and C there is a breach because
there is no planning permission, but if the use is changed from A to B and then
a change from B to C, the question whether there is a breach depends on whether
the change is development. That proposition, he said, was supported by the Kwik
Save case and that if at Oldham the change from A to B had been more than
minimal, then the limitation in the planning permission would not have
prevented the operation of the General Development Order.
I think that
this case turns on the proper construction of the planning permission. As a
general principle, where a local planning authority intend to exclude the
operation of the Use Classes Order or the General Development Order, they
should say so by the imposition of a condition in unequivocal terms, for in the
absence of such a condition it must be assumed that those orders will have effect
by operation of law. As I have said, the parts of the planning permission
relied on here are in common form and printed on the documents. Their purpose
is to ensure that the operations are carried out in accordance with the
deposited plan and that the premises shall be used for the purpose described. I
do not read this document as doing more than that, and certainly not as
excluding the operation of the Use Classes Order.
That is
sufficient to dispose of the appeal and it is unnecessary for me to consider whether,
had I decided otherwise, the enforcement notice was bad in form.
It follows
that the appeal is allowed and it therefore is remitted for rehearing and
redetermination in accordance with the opinion of the court that the change of
use of which the enforcement notice complains was not a breach of planning
control.
The appeal
was allowed with costs against the second respondent (Guildford Borough
Council).
