Enforcement notice–Premises with established use as wholesale warehouse, but no planning permission for that use,
This was an
appeal by the Secretary of State for the Environment from a decision of the
Divisional Court on November 4 1974 allowing an appeal by the respondents, LTSS
Print & Supply Services Ltd, freeholders of premises at 138 Kingsland Road,
London E1, from his order upholding with modifications an enforcement notice
served on them by the London Borough of Hackney requiring use of the premises
for retail sales of furniture to be discontinued.
Mr H K Woolf
(instructed by the Treasury Solicitor) appeared for the appellant, and Mr A B
Dawson (instructed by Kingsley, Napley & Co) represented the respondents.
The London Borough of Hackney took no part in the proceedings.
Giving
judgment, CAIRNS LJ said that from at least 1961 the premises in question were
used for some years for dealing in veneers and plywood, the trade being mainly
wholesale. This was followed by a timber-importing business, with nothing to
indicate retail sales. By 1971 the importers had left and furniture was being
displayed for retail sale by a company which had since gone into liquidation.
From October 1972 the use was for retail sale of furniture to the public. The
London Borough of Hackney served enforcement notices in December 1972 requiring
discontinuance of this use and the occupiers appealed. After an inquiry, the
Secretary of State upheld the notice with minor modifications. He refused
planning permission for retail sales, and in paragraph 8 of his decision letter
held that a ‘cash-and-carry’ establishment was not a ‘wholesale warehouse.’ In paragraph 11 he expressed the view that
the premises could not lawfully be used for the purposes of a ‘wholesale
grocer’s cash-and-carry warehouse,’ as had been stated to be the occupiers’
intention, first because such use was not in truth use as a wholesale
warehouse, and secondly because in any event the use of the premises as a
wholesale warehouse was merely an established use, not a permitted use, and in
his opinion there was no right to revert to an established use which had been
abandoned. The present respondents challenged this decision before the
Divisional Court, which held that the Secretary of State was wrong in law in
holding that there was no right to revert to a use for which no planning
permission had been obtained, but which was immune from enforcement proceedings
because it had become an established use. As it was possible that the Secretary
of State had been influenced by the error of law under which he had been held
to have acted, the court remitted the case to him for reconsideration. He
appealed against that decision.
When the
enforcement notice was served it was desired to have it set aside and to have
planning permission granted for the retail business in furniture. Failing that,
it was desired to set up a cash-and-carry grocery warehouse. Use as a wholesale
warehouse was within class X of the current use classes order, and under
section 22 (2) (f) of the Act of 1971, when premises, were used for a purpose
within a class, use for another purpose within that class did not constitute
development. Section 23 (9) of the Act provided: ‘Where an enforcement notice
has been served in respect of any development of land, planning permission is
not required for the use of that land for the purpose for which (in accordance
with the provisions of this Part of this Act) it could lawfully have been used
if that development had not been carried out.’
The case of the occupiers, and subsequently of the respondents, was as
follows. If the enforcement notice stood, the premises could again be used as a
wholesale warehouse (section 23 (9)). A cash-and-carry wholesale warehouse was
a wholesale warehouse within class X. The ground on which the inspector found
that use for the retail sale of furniture was objectionable was that the site,
on a principal traffic route out of and into London, with no adequate parking
space, was unsuitable for a business involving much vehicular movement. But a
cash-and-carry grocery business would involve just as much vehicular movement,
and therefore there was no good reason for withholding planning permission for
the current use.
Before the
Court of Appeal, Mr Woolf had laid stress on the words in section 23 (9), ‘in
accordance with the provisions of this Part of this Act.’ Enforcement was dealt with not in Part III but
in Part V. Section 89, which was in Part V, contained provisions as to
penalties for non-compliance with an enforcement notice. This made it difficult
to see how ‘lawfulness’ for the purposes of section 23 (9) could depend, as the
Divisional Court had held in W T Lamb & Sons Ltd v Secretary of
State for the Environment [1975] 2 All ER 1117, on whether or not an
enforcement notice had been served. Similarly, he (his Lordship) did not, with
great respect, think it could depend, as Lord Widgery CJ had put it, on the use
being one which could be carried on without there being any risk of enforcement
action. The other condition mentioned by Lord Widgery was ‘without breach of
the planning statutes.’ This again would
not give effect to the words ‘in accordance with the provisions of this Part of
this Act.’ Now there was nothing in Part
III of the Act which in terms prohibited the continuance of a use. What was
provided by sections 22 (1) and 23 (1), the first two sections of Part III, was
that in general planning permission was required for a change of use. So
if a change of use for which planning permission was required was made without
planning permission, it was an unlawful change of use. Was continuance of a use
thus unlawfully begun nevertheless lawful in accordance with the provisions of
Part III? In his (Cairns LJ’s) judgment,
it was not. If a state of affairs, or an activity, had been initiated by
infringing statutory provisions, he did not think it could ever be said to be
lawful in accordance with the provisions concerned unless something had
supervened to make it lawful. Mere immunity from process did not make it
lawful.
Mr Woolf
recognised as a strong point against him the contrast between the wording of
section 23 (9) and that of subsections (5) and (6) of the same section, which
read: ‘(5) Where planning permission to develop land has been granted for a
limited period, planning permission is not required for the resumption, at the
end of that period, of the use of the land for the purpose for which it was
normally used before the permission was granted. (6) In determining, for the
purposes of subsection (5) of this section, what were the purposes for which
land was normally used before the grant of planning permission, no account
shall be taken of any use of the land begun . . . in contravention of previous
planning control.’ Counsel pointed out,
however, that this difference of language had existed ever since the 1947 Act,
and that the situation was then distinct in that up to the appointed day under
the Act of 1947 there had been no general requirement of planning permission
for development. Since in 1947 the provisions were in the context of two
different sections, 18 (5) and 24 (4), one dealing with ‘supplementary
provisions as to the grant of permission’ and the other with ‘supplementary
provisions as to enforcement,’ it was not surprising if the draftsman’s mind
was not directed to a comparison of the language of the two provisions. It
might be said, further, that both in 1947 and in 1971 Parliament intended that
when use for a limited period came to an end the occupier should be entitled to
revert to the last lawful use (any intervening unlawful use being disregarded),
whereas when an enforcement notice had been served reverter should be allowed only
to the use which was current immediately before the development that was the
subject of the enforcement notice, and that if that use was
would be required for any use it was proposed to adopt. He (his Lordship)
thought that that was indeed the effect of the different wording.
With regard to
the point on the definition of a ‘wholesale warehouse,’ the word ‘warehouse’
was an ordinary English word, and he (Cairns LJ) did not consider that its
meaning was a matter of law. Unless the Secretary of State had put some clearly
untenable meaning on the phrase ‘wholesale warehouse,’ his interpretation of
the words could not be challenged. In concluding, as he had done, that sale of
goods to the general public in larger quantities than usual, or at a discount
and on a cash-and-carry basis, would not mean that the sales were ‘wholesale,’
the Secretary of State had reached a decision of a question of fact and degree,
a decision which should be accepted by the courts. For all these reasons the
appeal should be allowed, though it was with great diffidence that he (Cairns
LJ) expressed conclusions on a planning matter different from those of a court
constituted as the Divisional Court was constituted.
LAWTON and
GOFF LJJ delivered concurring judgments, and the appeal was allowed with costs.
Leave was given for an appeal to the House of Lords.