Enforcement notice–Planning authority has only to look at what has been done and what planning permissions have been granted–Authority need not ask itself whether the developer may be able to rely on some exemption, deemed permission etc–Developer who had so far operated a ‘Sunday market’ on only nine Sundays held in any case to have been justifiably denied the protection of the general development order–Evidence of a permanent change of use before Secretary of State.
In these
proceedings Harold Tidswell, of St Francis Way, Chadwell St Mary, Essex, moved
(1) to set aside a decision of the respondent, the Secretary of State for the
Environment, upholding an enforcement notice served upon him by Thurrock
Borough Council, and (2) to quash the notice, which required him to discontinue
using land at Tilbury Football Club as a Sunday market and to remove structures
used for that purpose.
A C Mordern
(instructed by Bates, Son & Braby, of Chelmsford) appeared for the applicant,
and H K Woolf (instructed by the Treasury Solicitor) represented the
respondent.
Giving the
first judgment, FORBES J said that the first point taken by the applicant was
that before serving an enforcement notice, a planning authority had to be satisfied
that there had been a breach of planning control or a failure to comply with
conditions. Under the current general development order, he (the applicant)
could hold a market on the site on 14 occasions without planning consent. He
had in fact held markets on only nine separate days, and accordingly (he
submitted) the enforcement notice was premature. Since the planning authority
must have known this, it followed that it could not have appeared to them,
before they served the notice, that there had been a breach of planning
control. He (his Lordship) had been rather attracted to that submission, but it
imported the premise that it was for the planning authority to investigate and
satisfy themselves whether or not a developer could bring himself within some
exemption or implied permission. If that were right, a local planning authority
could not merely rely on the fact they had not given planning permission but
would have to investigate each matter. The proposition could not be right. In
his (Forbes J’s) judgment, a planning authority needed only to look at the site
to see what was happening, and then look at the records to see if planning
permission had been given, in order to see whether development had taken place.
It was for the applicant to bring himself within an exemption or permission.
The
applicant’s second point was that the respondent had erred in ruling that the
applicant was not entitled to claim exemption. It was, however, clear that at
the time of an inquiry held into the applicant’s appeal there was evidence that
the use was permanent, and therefore the respondent was entitled to take the
view that there had been a change of use and that the applicant could not avail
himself of the exemption given in the general development order. The application
should therefore be dismissed.
LORD WIDGERY
and SLYNN J agreed, and the motion was dismissed with costs.
