Enforcement notice–Repair of vehicles on northern half of a site whose southern half is used for growing fruit–Notice may specify whole site as planning unit–Further point on defect in notice–Sale of vehicles referred to, as well as repair, but discontinuance of sale not required–Inspector’s action in amending notice to require sales to cease endorsed by court
This was an
appeal by Mr Edward Morris, of Portland Lodge, Brentwood Road, Bulphan, Essex,
against a decision of the first respondent, the Secretary of State for the
Environment, upholding with an amendment an enforcement notice served on the
appellant by the second respondents, the Thurrock District Council, requiring
him to cease using land at Portland Lodge for storage and maintenance of
vehicles.
Mr J M
Sullivan (instructed by Kenneth Elliott & Rowe, of Romford) appeared for
the appellant, and Mr K H T Schiemann (instructed by G W Plater) represented
the second respondents. The first respondent was not represented and took no
part in the appeal.
Giving
judgment, LORD WIDGERY said: this is an appeal under section 246 of the Town
and Country Planning Act 1971 brought by Mr Edward Morris, who is the owner of
the affected land, against a decision of the Secretary of State made through
the hand of one of his inspectors in regard to an enforcement notice served by
the local planning authority upon the appellant and relating to land and
premises known as Portland Lodge, Brentwood Road, Bulphan, Essex. The history
of the matter can be put quite simply. There exists in the urban district of
Thurrock the house and premises to which I have already referred, the total
area involved being something of the order of five acres. The house and
buildings
agricultural land which is used at present for growing fruit. Following the
arrival of the present appellant as the owner and occupier of Portland Lodge, a
motor sales and service business has been started by him on the northern half
of the premises. The vehicles for sale are stored in the open on the land
there, and repairs and respraying have taken place as required. The business
has been an extremely thriving one. In a very short time it has built up to
such an extent that when the inspector called at the premises there were 400
vehicles there, which gives one some idea of the amount of effort which has
been put into this affair by Mr Morris. But no one could doubt that the use of
this land for the sale, repair and respraying of motor vehicles was a material
change of use for the purposes of the Town and Country Planning Act, and since
the appellant had not sought, or at least had not obtained, permission to make
that material change of use, it is not altogether surprising that an
enforcement notice was in due course served. The notice is dated March 7 1974.
It recites that the Thurrock District Council act on behalf of the local
planning authority in respect of these premises in Essex. It recites further:
It appears to
the council that there has been a breach of planning control after the end of
1963 in that development consisting of use of the premises for the purpose of
(a) the sale of motor vehicles, and (b) the repair and respraying of motor
vehicles, has been carried out without the grant of permission required in that
behalf under Part III of the Town and Country Planning Act 1971.
The notice
then goes on to require the landowner upon whom it is served within the period
specified to remove from the premises all motor vehicles other than those
incidental to the enjoyment of the dwelling-house as such, and to discontinue
the use of the premises for the purpose of the repair and respraying of motor
vehicles other than the repair or respraying of motor vehicles incidental to
the enjoyment of the dwelling-house as such. An inspector was appointed to
consider the appellant’s appeal against that notice, and in due course he made
a report dealing, if I may say so, very fully with the merits of the matter,
because one feels that the principal argument before the inspector was whether
planning permission ought to be granted for this activity. However, he came
down against the appellant in that respect, and the outstanding points which
are then open for argument in this court are matters of law.
First of all,
it is contended that the enforcement notice should have been restricted in its
effect to that part of the appellant’s premises upon which the motor-car
selling and repair business was actually carried on. In other words, it is
contended that the notice should not have been directed to the whole five
acres, but only to the northern 2 1/2 acres or thereabouts upon which at the
time of service of the notice the business was being carried on. Secondly, it
will be observed from what I have already said that the enforcement notice did
not require action to remedy the breach of planning control which was directly
consistent with the breach complained of. In particular, although the breach
complained of the sale of motor vehicles as well as the repair and respraying
of vehicles, the requirement of action did not mention sale at all, although it
seems to have been accepted at the hearing before the inspector that that was
an error on the part of the local authority, and one can hardly doubt that it
was anything else. But as the notice stands, it does not prohibit the sale of
motor vehicles, and theoretically after an interval of time vehicles could be
brought back and put up for sale, although that would merely attract another
enforcement notice. The inspector, appreciating the futility, I think, of
allowing the notice to stand as it was, acceded to an argument from the local
authority in that he treated the notice as containing an error and proceeded to
cure that error by inserting appropriate words to prohibit the sale of motor
vehicles upon the site. It is said that he erred in law in both those respects,
and I will try to deal with them individually.
First of all,
on the question whether the notice could properly apply to the whole five
acres, it is necessary to remember that the first step in deciding whether any
breach of planning control has taken place is to ascertain the planning unit
concerned and ask in relation to that unit whether the alleged change of use is
a material one for present purposes. Once the planning unit has been
ascertained, and once it is clear that a material change of use in regard to
that unit has occurred, then in my judgment it is open to the planning
authority to bring enforcement proceedings, either in respect of the whole
planning unit or in respect of some smaller portion upon which the offending
change of use has occurred. There is some authority on this point in the case
of Hawkey v Secretary of State for the Environment and Another
(1971) 22 P & CR 610. That indeed was a case where the planning authority
sought to enforce against an area smaller than the planning unit itself, and
the decision of this court was to the effect that such activity was permissible
on the part of the planning authority. I think that that situation exactly
covers the one with which we are faced today. I know of no principle which
prevents the local authority from enforcing against the whole planning unit;
and indeed a ridiculous situation might otherwise exist, because on any other
basis enforcement would apply to an area of the land steadily increasing in
size as the activity itself increases, and it seems to be eminently sensible
and entirely just that once enforcement action has become possible because
there has been a material change in the use of the whole unit the planning
authority should be entitled to enforce against the whole unit. In my judgment,
therefore, there is nothing in the first point.
The difficulty
about the second point is simply this. Section 88 of the Act of 1971 contains
provisions which have been in this legislation now for some years and which
make provision on an appeal against an enforcement notice for the correction of
errors in the notice and variation of the notice. Subsection (4), paragraph (a)
of section 88 is in these terms: ‘On an appeal under this section . . . 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.’ That is a power to
correct defects. In subsection (5) of the same section there follows the
provision: ‘On the determination of an appeal under this section, the Secretary
of State shall give directions for giving effect to his determination, including,
where appropriate, directions for quashing the enforcement notice or for
varying the terms of the notice in favour of the appellant.’ I repeat the words ‘in favour of the
appellant.’ What is argued here is that
the inspector has himself described his addition to the enforcement notice
referring to the sale of vehicles as being a ‘variation.’ He uses that word in his report, and so Mr
Sullivan argues that what has happened is a variation under section 88 (5), but
that the variation is unlawful, because section 88 (5) only allows a variation
in favour of the appellant, and this is in the opposite direction. Mr
Schiemann, for the local authority, says, ‘No, this is not a matter upon which
subsection (5) becomes material; it is all to be dealt with under subsection
(4).’ He says, citing Lord Denning, that
the correction made by the inspector in the enforcement notice is legitimate as
long as it is one which could be made without injustice. No one can doubt that it
can be made without injustice, because it was a pure error, and obviously the
words now inserted should have been in the notice from the start.
The words of
Lord Denning, which are always cited in relation to this matter, are to be
found in Miller-Mead v Minister of Housing and Local Government
[1963] 2 QB 196 at 221. Dealing with the form in which the power to correct
errors then existed in 1962, Lord Denning says
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.’
In my knowledge and understanding, that test has been applied ever since
1963, and I think it should continue to be applied, because I think it
specifies the real point of subsection (4) and distinguishes it from subsection
(5). The correction of the error which took place in this instance was one
which was made without any sort of injustice to the appellant, and I think that
it was properly remedied or rectified by the inspector under subsection (4) and
that the enforcement notice can stand with that error rectified in that way. It
seems to me, therefore, that there is no substance in this appeal, and I would
dismiss it.
O’CONNOR J: I
agree.
LAWSON J: I
agree also.
An order for
costs was made against the appellant.
