Town and Country Planning Act 1971 — Enforcement notice — Appeal from decision of Divisional Court holding that an enforcement notice was time-barred under section 87(3)(c) of the 1971 Act — Permission granted for erection of a second storey of a building for use as a loft subject to a condition that the additional storey should not be used for any purpose other than storage connected with the residential use of the remainder of the premises — In fact the second storey was used as a separate unit of residential accommodation — Held by Court of Appeal, upholding decision of Divisional Court, that the enforcement notice was time-barred — The breach of planning control consisted of ‘the making without planning permission of a change of use . . . to use as a single dwelling-house’, with the result that under section 87(3)(c) the enforcement notice could be served only within four years from the date of the breach, which period had expired before service — It was immaterial that the change of use was also a breach of condition — Appeal dismissed.
This was an
appeal by the London Borough of Camden from a decision of the Queen’s Bench
Divisional Court (Ackner L J and Skinner J) on December 5 1980 holding that an
enforcement notice served by the borough as planning authority and upheld by
the Secretary of State for the Environment on appeal was time-barred. The
proceedings related to a building in the grounds of 18 East Heath Road,
Hampstead. The respondents to the present appeal were R G Backer, the freehold
owner of the property, and A Aird, the tenant.
J Sullivan
(instructed by S Nickson, London Borough of Camden) appeared on behalf of the
London Borough of Camden; D Robins (instructed by Bennetts & Partners)
represented the respondents. The Secretary of State for the Environment was not
represented and took no part in the proceedings.
Giving
judgment, WALLER LJ said: This is an appeal from a decision of the Divisional
Court, when that court held that an enforcement notice under the Town and
Country Planning Act 1971 was time-barred. The respondent is the freehold owner
of 18 East Heath Road, Hampstead, in the London Borough of Camden, and that
house has been converted into flats, although at one time it was a detached
house in its own grounds. Some buildings have been erected in the grounds. This
appeal relates to the upper half of one of the buildings.
The findings
of fact by the minister’s inspector were that an upper storey was added to the
building in 1968-69; thereafter in June 1970 a planning application was
submitted and in October 1970 planning permission was granted for the erection
of a second storey for use as a loft. A condition of the permission was that
the additional storey should not be used for any purpose other than storage
connected with the residential use of the remainder of the premises.
The fact that
it had been used for a separate unit of residential accommodation from March 1
1973 was also found by the inspector. He found that it had been continuously
occupied since then by the same tenant.
The
enforcement notice, after quoting the conditions, went on:
The matter
alleged to constitute a breach of planning control is that the said development
has been carried out but the said condition has not been complied with, in that
the said land is being used as an individual unit of residential accommodation.
The appellants
appealed to the Secretary of State against that enforcement notice, and the
inspector held that there was a breach of planning control. The Secretary of
State, in considering the inspector’s report, held that the appeal on the
grounds of section 88 of the 1971 Act — namely that a four-year period had
elapsed before the date of service — failed because it was a breach of a
condition after 1963, when the earlier Act had abolished the universal benefit
of the four-year delay.
Section 87 of
the Town and Country Planning Act 1971, by subsection (1), says:
Where it
appears to the local planning authority that there has been a breach of
planning control after the end of 1963, then, subject to any directions given
by the Secretary of State and to the following provisions of this Section, the
authority, if they consider it expedient to do so having regard to the
provisions of the development plan and to any other material considerations,
may serve a notice under this section (in this Act referred to as an
‘enforcement notice’) requiring the breach to be remedied.
Subsection (2)
says:
There is a
breach of planning control if development has been carried out, whether before
or after the commencement of this Act, without the grant of planning permission
required in that behalf in accordance with Part III of the Act of 1962 or Part
III of this Act, or if any conditions or limitations subject to which planning
permission was granted have not been complied with.
Subsection (3)
says:
Where an
enforcement notice relates to a breach of planning control consisting in — (a)
the carrying out without planning permission of building, engineering, mining
or other operations in, on, over or under land; or (b) the failure to comply
with any condition or limitation which relates to the carrying out of such
operations and subject to which planning permission was granted for the
development of that land; or (c) the making without planning permission of a
change of use of any building to use as a single dwelling-house, it may be
served only within the period of four years from the date of the breach.
By section 88
(1) (c):
A person on
whom an enforcement notice is served, or any other person having an interest in
the land may, at any time within the period specified in the notice as the
period at the end of which it is to take effect, appeal to the Secretary of
State against the notice on any of the following grounds — . . . (c) in the
case of a notice which, by virtue of section 87(3) of this Act, may be served
only within the period of four years from the date of the breach of planning
control to which the notice relates, that that period has elapsed at the date
of service.
By subsection
(3):
Where an
appeal is brought under this section, the enforcement notice shall be of no
effect pending the final determination or the withdrawal of the appeal.
The Divisional
Court allowed the appeal against the decision of the Secretary of State,
holding that section 87(3)(c) was effective. Mr Sullivan has submitted to this
court that the local authority had a choice. They could serve that enforcement
notice either based on a breach of condition or based on a change of use
contrary to the planning permission. He accepted, in the course of argument,
that had this notice been based on change in use to a single dwelling-house, he
would have no answer. But he says that as the notice was on the basis of a
breach of condition — and he drew attention to the contrast between the earlier
parts of the same section, subsections (a) and (b), between carrying out
without planning permission and a failure to comply with any condition — the
planning authority (or the minister as the case might be) would be free to
decide, because of a breach of condition, that the time bar did not take
effect.
In my judgment
the fact is that there has been a change of use of the building from use as a
loft for storage to use as a single dwelling-house. The permitted use was for
storage, so therefore the case is exactly covered by the words of section 87
(3) (c), and the fact that the change of use is also a breach of condition does
not override this.
I agree with
Skinner J in his judgment in the Divisional Court that the contrast between the
word ‘relates’ which occurs in subsection (3) of section 87, where the
‘enforcement notice relates to a breach of planning control’, and the word
‘specify’ in subsection (6) of the same section which states that an
‘enforcement notice shall specify’ gives added support to the view which I have
just expressed.
Mr Sullivan
has also drawn attention to an amendment made by the Local Government and
Planning (Amendment) Act 1981 which substitutes a new section 87 for the
section which I have already read and which has, in the equivalent of
subsection (3), an additional subsection dealing specifically with a breach of
condition resulting in use of a building as a single dwelling-house.
But in my
judgment, since I have clearly come to the conclusion that the facts here were
completely covered by subsection (3)(c) of section 87, it is not necessary to
consider the effect of subsequent legislation.
Accordingly, I
would dismiss this appeal. I would only add that had it not been for the
argument of Mr Sullivan in this appeal, I would have been content to accept the
judgment of the Divisional Court.
Agreeing,
DONALDSON LJ said: I, too, would dismiss this appeal. It seems to me that the
facts fall plainly and completely within the terms of section 87(3)(c) of the
1971 Town and Country Planning Act. The enforcement notice related to a breach
of planning control and that breach of planning control consisted in the
making, without planning permission, of a change of use of the building to use
as a single dwelling-house.
The only doubt
which I entertain about this matter at all is one which has not been
ventilated, namely, whether this is in fact and in law a breach of the
condition. I mention that doubt merely in case it arises in another case. My
doubt arises out of the form of the planning permission, which I have not seen
in its original form but which I take to be accurately recorded on the
enforcement notice, in which it would appear that permission was given to
develop the land by the erection of a second storey for use as a loft. There
was then a condition that the additional storey could not be used for any
purpose other than storage connected with the residential use of the premises.
It seems to me
to be arguable that the condition applies and limits and restricts loft user,
and that it is only if you are using the premises as a loft otherwise than in
accordance with the condition that then it can be said to be a breach of the condition.
If you are not using it as a loft at all, I would have thought it arguable that
you simply were acting without planning permission.
But, as I say,
apart from recording that doubt, which is immaterial to the result of this
appeal, I merely say that this is plainly within the section and this appeal to
my mind should fail.
Also agreeing,
SIR DAVID CAIRNS said: I agree that this appeal should be dismissed. I entirely
agree with the reasons for their conclusion given in the Divisional Court by
the two judges of that court.
The fresh
argument that was not available to the Divisional Court but which was advanced
in this court was to the effect that the provisions of the Act of 1981 indicate
an intention of Parliament to change the law and show that Parliament put the
same construction upon this particular provision as Mr Sullivan invites this
court to put.
I do not take
the view that it was Parliament’s intention in 1981 to change the law as laid
down in the Act of 1971. The two judges in the court below, and both my
brethren in this court, have found this to be a perfectly plain provision. It
is apparent from the decision of the Secretary of State that he did in fact
take a contrary view of what the section in the 1971 Act meant. In those
circumstances I think it is not unnatural that Parliament should take the
trouble, in the 1981 Act, to specify in terms simply to make it clear to
everybody what the intention of the 1971 Act was.
The appeal
was dismissed with costs.