Enforcement notice–Secretary of State’s mistaken general statement as to planning law probably did not affect his decision, but case remitted to him for ‘whatever adjustment he might think necessary’
This was an
appeal by LTSS Print & Supply Services Ltd against a decision of the second
respondent, the Secretary of State for the Environment, upholding an
enforcement notice served by the first respondents, Hackney Borough Council, by
which further use of premises at 138 Kingsland Road, London E2, for the retail
sale of furniture was prohibited.
Mr A Dawson
(instructed by Kingsley Napley & Co) appeared for the appellants, and Mr H
K Woolf (instructed by the
took no part in the appeal.
Giving
judgment, LORD WIDGERY said that the notice recited that the sale of furniture
was a change of use for which planning permission had not been given. The
planning history of the premises was that in 1961 they had been used by a
company dealing in veneers and plywoods, mainly on a wholesale basis.
Afterwards the premises had been used for the retail sale of furniture. There
was no contest that the established use of the premises up to 1969 was that of
a wholesale warehouse, and it was not surprising that the Secretary of State
had upheld the enforcement notice and the local authority’s contention that
there had been a material change of use. The Secretary of State, as he was
entitled to, had then gone on to consider whether planning permission for the
offending use should be granted. The argument for the appellants before the
inspector was that, within the definition of ‘warehouse,’ it would be open to
the appellants to use the premises for the purpose of a cash-and-carry grocery
business. Since, it was said, that would be more detrimental to the environment
than the sale of furniture, planning permission should be granted. In
considering whether or not furniture-selling would be better than
cash-and-carry grocery, the Secretary of State was entitled to consider what
were the alternatives. Had he asked himself that question, he would have
referred himself to section 23 (9) of the Town and Country Planning Act 1971,
which provided that where an enforcement notice had been served planning
permission was not required for the use of the land for the purpose for which
it could lawfully have been used if the development had not been carried out.
If a notice was served the landowner or occupier could revert to any use which
would have been lawful under the terms of the 1971 Act. The Secretary of State
had not, however, taken that course. Instead, he had said that there was no
right to revert to the original use once a new use had been established.
That was an
error. It was highly improbable that the mistake had made any difference to the
Secretary of State’s decision. The inspector, in recommending refusal of
permission, had obviously contemplated the traffic which would have been
attracted to the premises, and had gone on to give strong views for saying that
the land was unsuitable for the present use. It was unlikely that the Secretary
of State, in considering the inspector’s report, had been influenced by the
error of law he had made earlier. He had stated that he did not propose to
grant permission because of the inspector’s reasons. However, it was right for
him to be given an opportunity of making whatever adjustment he might think
necessary to his decision, and the case should be remitted to him for further
consideration.
BRIDGE and
SHAW JJ agreed, and an order was made accordingly. Leave to appeal was given.
