Enforcement notice–Roof of new house in Lake District to be covered with specified tiles, not in fact so covered–Notice describes development complained of as ‘Construction of roof of dwelling in . . . tiles of a buff colour–Removal of tiles required–Secretary of State right to hold notice in such terms invalid–Breach of control was construction of a house in defiance of the condition, not just of a roof–Planning authority may ‘under-enforce,’ but must get their notice right first–Amendment could not have been made without injustice–Authority’s appeal dismissed–Respondents who took no substantial part in hearing of appeal nevertheless awarded costs
This was an
appeal by a local planning authority, Copeland Borough Council, against a
decision of the first respondent, the Secretary of State for the Environment,
quashing an enforcement notice served by the appellants on the second and third
respondents, Mr David William Ross and Mr Matthew James Ross, requiring removal
of certain tiles fixed to the roof of a newly-constructed dwelling-house on a
site at The Hill, Millom, Cumbria.
Mr J Sullivan
(instructed by Blyth, Dutton, Robins, Hay, agents for H F T Gough & Co, of
Whitehaven) appeared for the appellants, and Mr H K Woolf (instructed by the
Treasury Solicitor) for the first respondent. Mr J Mitchell (instructed by
Gregory, Rowcliffe & Co, agents for Milburn & Co, of Whitehaven) held a
watching brief on behalf of the second and third respondents.
Giving
judgment LORD WIDGERY said: This is an appeal under section 246 of the Town and
Country Planning Act 1971 brought by the Copeland Borough Council, who are the
relevant planning authority, against a decision of the first respondent, the
Secretary of State for the Environment, who, following upon the holding of a
public inquiry, quashed an enforcement notice served by the council in respect
of development consisting of the building of a dwelling-house at The Hill,
Millom, Cumbria. This was a piece of development on virgin land, and it
contemplated that three houses should be erected in a part of the Lake District
where visual amenities are serious matters. The application for planning
permission for these three houses was granted on outline application on May 22
1972. We have before us the actual grant of the outline application, and it
describes the develop-
afterwards the matters reserved in the outline application were satisfactorily
dealt with, and we have the final planning permission before us, dated June 25
1973, which expresses satisfaction with the reserved matters and deals with one
or two questions affecting amenity, such as the construction of a carriage-way
for the class 1 road and other matters of that kind. Attached to these consents
were plans, and on the plans there was an indication of the nature of the
roofing which was to be applied to these three houses in this sensitive area,
as I have described it. The Secretary of State’s decision letter, which
incidentally is dated May 19 1975, deals sufficiently for my purposes with the
provisions contained in the planning documents in regard to the roofing. A plan
was submitted to the planning authority in April of 1973 as part of the
submission of reserved details, and this showed that the roof would be
constructed of Redland Stonewald slates, colour grey, with matching ridge. When
I say ‘roof’ I might properly say ‘roofs,’ because there were three houses
involved, although we are dealing today with only one. There was a Redland
catalogue which showed Stonewald slates to be of certain size, and it is quite
evident that there was a requirement in this planning permission that the roof
should be treated specially in a manner involving these particular roofing
tiles.
It was not so
treated. Again it is not necessary for us to go into the detail of what went
wrong, but the requirement of the planning permission so far as it dealt with
the roofing tiles was not property complied with, and so the planning authority
proceeded to take action under their powers in regard to the service of an
enforcement notice. The notice in question is dated May 21 1974. It is in
common form. It is addressed to the developers who were building these houses
and who, at the relevant time, had substantially completed one house but not
begun the others, and who, as I have already said, in substantially completing
one house had used a combination of roofing tiles not in accordance with those
prescribed by the permission. The planning authority addressed their
enforcement notice to Mr David William Ross and Mr Matthew James Ross. They
recited that ‘it appears to the council that there has been a breach of planning
control in that the property has been developed by the carrying out on it of
the building operations specified in the second schedule hereto without the
grant of planning permission required in that behalf in accordance with Part
III of the Town and Country Planning Act 1971.’
It goes on to require the persons upon whom it is served to take the
steps specified in the third schedule to remedy the said breach within a period
of 14 days.
Everything
therefore depended on the contents of the second and third schedules, and I
pass on now to consider them. It will be remembered that the second schedule
contained the planning authority’s description of the development alleged to
constitute a breach of planning control, and the actual language used in that schedule
is, ‘Construction of roof of dwelling in Redland Stonewald and Redland Delta
tiles of a buff colour.’ I confess that
that phrase meant very little to me when I first read it, but again there is no
dispute that it does refer to an irregularity in the choice of the tiles to be
used on the roof of this house. The third schedule, which specifies the action
required consequent upon the breach of planning control previously referred to,
is, ‘Remove the tiles referred to in the second schedule hereto from the said
dwelling.’ There was, as I have said, an
appeal to the Secretary of State, and we are told, although we have not been
burdened with details of it, that a considerable argument and discussion went
on at the public inquiry about the colour of the tiles and questions of that
kind. But it is not disputed that the tiles were wrong. The Secretary of
State’s decision in regard to this incorrect use of tiles not in accordance
with the specification is that the enforcement notice had wrongly identified the
breach of planning control complained of and that in consequence of that
misidentification of the breach of planning control complained of the Secretary
of State had no option but to quash the enforcement notice. That is his
decision, and that is a decision the validity of which we must now examine.
The first
question, quite the most interesting one in the case, is whether in the
circumstances which I have outlined the breach of planning control consisted of
building a house which was not in accordance with the plans or building a house
which had a roof not in accordance with the plans. In other words, was the
breach of planning control relied upon a building of the entire house — a
single operation — or was it a multitude of operations, a brick here, a brick
there, the installation of a sink or a gas heater there? Which is the correct approach? It is not disputed that the planning
authority in their enforcement notice have sought to point to the wrong tiles
as being the breach of planning control in this instance. But it is contended
by Mr Woolf that that is wrong as a matter of law, and that the breach of
planning control here consisted of the building of a house which did not comply
with the appropriate planning permission. For my part, and in the absence of
authority, I would have had no hesitation in saying that in a case of this
kind, where there is to be new development on land previously undeveloped, one
ought, subject to any special provisions in the planning permission itself, to
treat the operation as a single one; and I test it for myself in this way. The
purpose of all town and country planning is to preserve amenities and the
sensible and attractive layout of properties, and if the borough council are
right in this case, and the grant of permission of this kind is really the
grant of multiple permissions to install brick by brick, it would mean that an
eccentric land developer could produce most extraordinary results upon his
land, results which might perfectly well redound to the disadvantage of others,
without in any way falling foul of this legislation. He could leave holes in
the walls of his house; he could leave half the roof off; he could do all sorts
of eccentric things of that kind, and when he was tackled about it by the
planning authority he could say, ‘But every brick is in accordance with the
plans; at no point have I done anything which the plans did not
authorise.’ It might be said, ‘What
about all the vacant spaces which the plans intended to be filled?’ Then the answer would be ‘There is no breach
of planning control there: there is nothing done there, and if you do nothing
you cannot be wrong.’
I do not think
that that would be a very satisfactory solution to this type of problem in the
planning field, and happily I do not feel in the least bit tempted to apply it,
or anything like it, because I think there is sufficient authority, if contrary
authority were needed, in the case of Garland v Minister of Housing
and Local Government (1968) 20 P & CR 93. That was a case of a gentleman
who extended his house by adding a back addition. The general development order
current at the time allowed him to extend the size of his house without
planning permission as long as he did not exceed 20 per cent. He exceeded 20
per cent and went to something like 25 per cent of the permitted quantity
without authority. When the local authority came to serve him with an
enforcement notice to make him remove it, the question arose in a very live
form as to whether the authority could make him remove the entire addition or
only that part of the addition which exceeded the authorised 20 per cent. It
was held in the Court of Appeal that the planning authority could properly
require him to remove the whole addition. That is in my judgment quite
sufficient authority for a similar conclusion in this case that any planning
enforcement which the local authority contemplated against the present
developers in the present instance should have begun on the basis that the
breach of planning control was the building of the house not in accordance with
the plans which had been approved.
That being so,
Mr Sullivan nevertheless says that it is open to a planning authority when
taking enforcement proceedings to require the landowner to undo, as it were, or
unravel such part of the unauthorised development as the planning authority
think should be unravelled. In other words, he says that there is no obligation
on a planning authority to enforce to the absolute limit. They are not bound to
require the undoing of everything which has been done which is wrong, and if
they think some things are an asset and need not be removed, then they can
adjust their enforcement procedure accordingly. In support of that we have been
referred to the rather interesting case of Iddenden and others v Secretary
of State for the Environment [1972] 1 WLR 1433. The decision in the Court
of Appeal comes a little further on at p 1438. That was a case in which there
was a piece of land upon which some old sheds existed, and the landowners,
without any planning permission, pulled down the old sheds and built new sheds.
There was undoubtedly there something against which enforcement action could be
taken, and the planning authority took the view that their enforcement action
should require the removal of the new sheds, but they did not attempt to
require the owner to rebuild the old ones which had formerly been there. It was
held in this court, after reference to the requirements of an enforcement
notice as set out in section 87 of the Town and Country Planning Act 1971, that
it was not necessary for a planning authority necessarily to enforce in respect
of every facet which theoretically could be treated as an enforcement matter.
In the Court of Appeal Lord Denning MR based his conclusion on the rather special
ground that there had been no development involved in the demolition of the old
sheds. Of course if that was right, then there could be no question of there
being an obligation to restore the old sheds, and the case, if it is decided on
that point only, is not of very great importance as an authority. But Lord
Denning nevertheless went on to say this at page 1439:
Mr Henry
submits that the new section in 1968 is not different from the old ones in 1947
and 1962. It says that the enforcement notice shall specify ‘the steps required
by the authority to be taken. . . .’
Those words give a discretion to the planning authority. They are the
people to say what they require to be done. They need only require such steps
as they think necessary. They need not do more. Indeed they must not do more.
That is cited
as an authority for the proposition that in the present instance the planning
authority may have deliberately chosen not to enforce to the limit, and that
the reference to the tiles only instead of the house as a whole is explained in
that way. The relevant provisions today on the requirements of an enforcement
notice are in section 87 (6) of the Act:
An
enforcement notice shall specify (a) the matters alleged to constitute a breach
of planning control; (b) the steps required by the authority to be taken in
order to remedy the breach, that is to say steps for the purpose of restoring
the land to its condition before the development took place or (according to
the particular circumstances of the breach) of securing compliance with the
conditions or limitations subject to which planning permission was granted; and
(c) the period for compliance with the notice, that is to say the period
(beginning with the date when the notice takes effect) within which those steps
are required to be taken.
I would leave
for another day a more detailed consideration of the extent to which a planning
authority can appropriately under-enforce, as it were, by not going to the
limit in the drafting of its enforcement notices. I think it would be a great
pity if it ever became accepted as the law that there was no tolerance or
latitude on this point, because commonsense tells us that there will be many
cases in which it is perfectly good sense for the planning authority not to
take its full pound of flesh. On the other hand, I am not inclined to think
that this case is explicable or justifiable upon that basis, because there is
nothing whatever in the enforcement notice to suggest that the planning
authority thought they were under-enforcing or had deliberately chosen to take
less than they need have taken. I think that an essential preliminary to an
argument that the planning authority have deliberately under-enforced is that
they correctly state a breach of planning control in the first instance. If the
enforcement notice indicates correctly what the breach of planning control is,
then I think one should be quick and ready to recognise and accept a case of
under-enforcement where the planning authority restrict their demands. But
unless they get the description of the breach of planning control right in the
first instance, it seems to me that the enforcement notice is so groggy, if I
may use that phrase, right from the outset that it would not be right readily
to assume that the planning authority had decided to enforce to a lower
standard than was strictly within their powers. Accordingly I do not feel
disposed to follow Mr Sullivan’s argument that this was a valid enforcement
notice on the basis that the planning authority were restricting the extent of
the relief which they claimed.
That only
leaves one more point, and again this is a very interesting point. The
Secretary of State considered whether he could not amend this notice so as to
remove the feature of invalidity which it contained, and for that purpose of
course he had to look at section 88 (4) of the Act, which says: ‘On an appeal
under this section (a) the Secretary of State may correct any informality,
defect or error in the enforcement notice if he is satisfied that the informality,
defect or error is not material. . . .’
It is suggested that in this case the Secretary of State could have
looked at this enforcement notice and said that the defect in it was not
material, and if he then had thought it right to do so he might have amended
the notice and in effect turned it from a notice requiring the removal of tiles
into a notice requiring the demolition of the entire house. I am bound to say
that coming back to look at these principles afresh under Mr Woolf’s guidance I
find it awfully hard to describe the error in this enforcement notice as being
not material. If you get such a gross error in the description of the breach of
planning control and say that that is not material, one begins to wonder what
is material. However, there is of course the very well-known case of Miller-Mead
v Minister of Housing and Local Government [1963] 2 QB 196, which has
been the stand-by of lawyers involved in this branch of the law ever since it
was decided. This is the classic passage on p 221 in the judgment of Lord
Denning dealing with the meaning of the subsection which I have just read:
Finally, an
enforcement notice is no longer to be defeated on technical grounds. The
Minister has power under section 33 (5) to correct any informality, defect or error
in the enforcement notice if he is satisfied that the informality, defect or
error is not a material one. This seems to me to be wider than the ‘slip
rule.’ I think that it gives the
Minister a power to amend, which is similar to the power of the court to amend
an indictment. He can correct errors so long as, having regard to the merits of
the case, the correction can be made without injustice. No informality, defect
or error is a material one unless it is such as to produce injustice.
Applying that to
this case, I find it extremely hard to say that an amendment so fundamental as
is contemplated here can take place without its being material and without
giving rise to injustice. Mr Woolf has confirmed that up to now there is no
authority in this court where an enforcement notice has been saved and made
effective when it failed correctly to describe the breach of planning control
relied upon. The most common error in the past has been where there has been
confusion in the draftsman’s mind between a breach of planning control involved
in building without permission as compared with one involving building in
breach of a condition. It is still the law, as I understand it, that if
a draftsman is wrong on that point in drafting his enforcement notice, the notice
is bad and cannot be saved by amendment. If that has been consistently held to
be the law since Miller-Mead, I think it would be wrong in this court to
adopt any different approach. It seems to me, therefore, that following
authority the correct answer in this case is that the Secretary of State was
entirely right in not amending the enforcement notice, the enforcement notice
did contain a fundamental invalidity from the start, that none of the arguments
sought to bolster it up can stand today, and that in the end the only
conclusion one can properly express is that the Secretary of State was entirely
right in regarding this notice as a defective notice and in quashing it. I
would therefore dismiss the appeal.
KILNER BROWN
J: I agree.
WATKINS J: I
agree.
Mr Woolf: I
would therefore ask that the appeal be dismissed with costs.
Lord Widgery:
That follows, Mr Sullivan.
Mr Sullivan:
I would say it follows in respect of the Secretary of State’s costs.
Lord Widgery:
That is all you have to meet at the moment. Mr Mitchell, what was your
position? Had you got a watching brief?
Mr Mitchell:
Yes, I had, my Lord.
Lord Widgery:
Because surely if all you have is a watching brief you had no right to address
us. He with a watching brief sits.
Mr Mitchell:
I was described as a watching brief but also to make an application for costs.
Lord Widgery:
I remember Lord Goddard being very short on an occasion in this court when a
similar application was made to him. Why, if you are only here with a watching
brief, should somebody else pay your costs?
Mr Mitchell:
I am a party to the action on behalf of the second and third respondents. It
calls itself a watching brief, but my instructions are also to make an
application for costs.
Lord Widgery:
We will see what Mr Sullivan says about it.
Mr Sullivan:
The second and third respondents of course have to be served with a copy of the
notice of appeal. Essentially this issue is one between the planning authority
and the Secretary of State. I would quite accept that where the appellant (that
is the landowner) and the Secretary of State are taking divergent paths, and
the landowner might wish to take some point that the Secretary of State has not
taken, then it is perfectly right that the planning authority ought to pay his
costs as well. But where the landowner comes along either just to watch or just
to say, ‘I support the Secretary of State’s submissions,’ then in my respectful
submission the planning authority ought not to be saddled with two lots of
costs.
Lord Widgery:
There is a question on quantum in this to some extent. If someone in the
position of Mr Mitchell’s client goes in for this in a very extravagant way
with two silks, then I can quite understand the argument. Are they not entitled
to be represented, without extravagance?
Mr Sullivan:
If they apprehend that they might wish to take a different line, if I may put
it that way, from the Secretary of State, they certainly ought, but not merely
to watch and simply identify themselves with the Secretary of State’s
submissions. I agree, certainly, if they wish to assist the court by raising
new issues or dealing with new material by all means. That is all I wish to say
on the matter of costs. I apply for leave to appeal to the Court of Appeal, and
your Lordship has said on more than than one occasion that the issues raised in
this case are interesting matters. Although it is a unanimous judgment against
me, I think I may say that the arguments ranged to and fro during the course of
the hearing, and certainly there are matters in Miller-Mead and in Iddenden
that it may be desirable, quite apart from my clients’ point of view but from
the point of view of the Secretary of State as well, to have determined finally
by the Court of Appeal. It is plainly a case of wider consequence simply than
the instant facts of this case. It goes to the basis of the Secretary of
State’s power to amend enforcement notices, and also to this vexed question
raised in the Garland case of whether the whole or only a part is
without permission.
Lord Widgery:
Do you say anything about this, Mr Woolf?
Mr Woolf: No,
my Lord.
(Their
Lordships conferred)
Lord Widgery:
Mr Mitchell’s clients will have their costs to be taxed, and Mr Sullivan will
have leave to appeal to the Court of Appeal.
