Planning permission given for petrol station on condition that no vehicles should be displayed or sold on the ‘forecourt’–Secretary of State entitled to find that the ‘forecourt’ extended to include that part of the frontage which faced a side street–Further point on previous use of portion of site for car sales–Petrol station not merely a new planning unit, but a completely new physical unit–Previous use of portion of site on its own quite irrelevant–Treatment of issue by inspector and Secretary of State perfectly adequate
This was an
appeal by Leighton & Newman Car Sales Ltd, of 271 Mare Street, Hackney, London
E8, from a decision of the Divisional Court on April 17 1975 dismissing two
appeals from decisions of the first respondent, the Secretary of State for the
Environment, by which he upheld action taken by the second respondents, the
London Borough of Hackney, to stop use of premises on the corner of Mare Street
and Richmond Road, Hackney, for display and sale of cars.
B Payton and J
Jowell (instructed by Palmer & Robinson) appeared for the appellants, and H
K Woolf (instructed by the Treasury Solicitor) represented the respondents.
Giving the
judgment of the court, BROWNE LJ said: This is an appeal, which has been
treated as one single appeal, by Leighton & Newman Car Sales Ltd from a
decision of the Divisional Court given on April 17 1975, dismissing two appeals
from decisions of the Secretary of State under the Town and Country Planning
Act 1971 (to which we shall refer as ‘the Act’). One of the appeals was an
appeal against an enforcement notice served on the appellants by the Hackney
Council as planning authority, and the other was an appeal against a refusal of
planning permission by the same council. Both appeals related to the same
premises and the same use of those premises. Leave to appeal against one part
of the decision of the Divisional Court was given by this court on April 21
1975.
The appellants
are the tenants and occupiers of a petrol filling and service station on the
corner of Mare Street and Richmond Road in Hackney. There is a plan of the
premises at page 38 of our bundle, and a larger scale and more detailed plan
was put before us with the agreement of counsel: this is a copy of the plan
attached to the application for planning permission of July 2 1971, to which we
shall refer later. For a number of years before about 1971, the appellants’
predecessors were the occupiers of what was then 271 Mare Street, on the corner
of Richmond Road. They carried on there a garage business, including the sale
of cars. In 1969 or 1970 Esso Petroleum Ltd bought no 271, and also 273 and 275
Mare Street, which were to the north of no 271. On July 2 1971 Esso applied to
the Hackney Borough Council for planning permission for development of the site
of the former nos 271-275 by: ‘The construction of a single-storey self-service
filling station, with lubrication bays, office, sales area, store, lavatories
and heating chamber. Also the installation of pumps, canopy, storage tanks and
car parking spaces.’ That application is
at page 46 of the documents. On October 13 1971 the Hackney Borough Council
granted planning permission, subject to certain conditions. The planning
permission and conditions appear at pages 22 and 23 of the documents. The
development for which permission was granted was: ‘The construction of a petrol
filling and service station consisting of a single-storey building providing
lubrication bays, office, sales area, store and lavatories, a petrol sales area
with pumps and canopy; the installation of underground petrol storage tanks and
a paraffin-vending machine; the provision of 13 car parking spaces; and the
formation of vehicular entrance to and egress from the premises and the
remaining industrial premises at the rear of 273-275 Mare Street.’ The relevant conditions were nos 8 and 9.
Condition no 8 was:
The whole of
the car parking accommodation shown on the drawings hereby approved shall be
provided and retained solely for the accommodation of vehicles of the occupiers
and users of the premises.
Condition no 9
was:
No vehicles
shall be sold or displayed for sale on the forecourt.
The reasons
given for those conditions were that condition no 8 was ‘to ensure that the
proposed development does not prejudice the free flow of traffic or public
safety along the neighbouring highway,’ and that no 9 was ‘in the interests of
visual amenity and to ensure that the free flow of traffic through the filling
station is not impeded.’ The
property–that is, the whole site of the former nos 271-275–was redeveloped
under this permission, and about 1972 the appellants became tenants from Esso
of the whole new premises. The plans and photographs which were put before us
give a good picture of the property. Mare Street runs roughly north and south.
The entrance to the service station is from Mare Street, near the corner of
Richmond Road, and there is an exit to Mare Street further north. Set back to
the west between the entry and the exit are four petrol pumps, under a canopy,
with various buildings behind them–offices, stores and so on, with, we think, a
repair garage behind that. Almost opposite the entrance is a building,
containing the lubrication bays, which faces south-east. As you come into the
entrance, there is on your left a raised kerb, about 15 ft long, pointing west.
If a line is drawn from the western end of this kerb to the south-eastern
corner of the lubrication bays building, the surface to the north of this line
(towards the pumps) is concrete and the surface to the south is asphalt, but
there is no physical boundary. The 13 car-parking spaces referred to in the
planning permission are marked on the larger plan: 10 of them are along the
Richmond Road side of the premises and the other three round the corner facing
Mare Street. Soon after the appellants went into occupation of the new premises
they began to exhibit cars for sale on the car
These cars can be seen in photograph 3. In view of one of Mr Payton’s
arguments, we note that the place used for car sales was in front of the
lubrication bays building. We understand that the borough council first
objected to the car sales informally, and as a result the appellants made an
application to the council for planning permission dated May 25 1972. That
appears at p 48 of the documents. The particulars of the proposed development are
as follows:
Parking area
on the Richmond Road side of Hackney Service Station. To be used for selling
cars (coloured red). No loss of parking space. These can be parked at 275
(coloured blue).
If one looks
at the plan attached to that document, the part coloured red for which
permission is asked is the strip along the Richmond Road side of the premises.
The part coloured blue is at the back of what used to be no 275. This
application was refused on October 11 1972 by the council. The reasons given by
the planning authority for their refusal (p 50) were:
Despite the
recent layout improvements, the site of the petrol filling station is still not
regarded as being entirely satisfactory because of its relationship to the
adjoining difficult road junction. In these circumstances, the area of
forecourt in use for the display and sale of cars, the subject of this
decision, situated at the common entrance to the petrol filling station and
service bays and to the repair garage at the rear of the premises, would impede
the free flow of traffic through the premises, which are situated in the centre
of a traffic-signal-controlled system, and would therefore be further
prejudicial to the free flow of traffic and conditions of general safety on the
adjoining highways.
One of the
appeals now before this court is an appeal against this refusal. On February 8
1973 the borough council served an enforcement notice on the appellants. That
enforcement notice was in these terms:
The council
of the London Borough of Hackney (‘the council’) as the local planning
authority for the purposes of the above Act hereby gives you notice that it
appears to the council that a breach of planning control has occurred after the
end of 1963 at 271-275 Mare Street, London E8 (shown coloured red on the
attached plan and hereinafter called ‘the premises’) namely the use of the
forecourt for the sale and display of vehicles in contravention of a condition
subject to which planning permission was granted that no vehicles shall be sold
or displayed for sale on the forecourt.
Then paragraph
2 requires that that use shall be discontinued. It will be seen that the only
breach of planning control alleged by the notice was a contravention of
condition 9–that is, the car sales condition. There was no allegation of a
breach of condition 8 — that is, the car-parking spaces condition. On February
27 1973 the appellants gave notice of appeal against this enforcement notice
(page 51), and this is the other appeal before this court. On February 20 1974
a public local inquiry was held relating to both appeals. The inspector’s
report is at page 26 of the documents. The inspector recommended, in substance,
that both appeals should be dismissed. The appellants appealed to the Secretary
of State and he dismissed both appeals, though he amended the enforcement
notice to exclude from it some of the land originally included in it; this was
some land to the north and west, outside the area covered by the planning
permission of October 13 1971, which had been acquired by the appellants after
the grant of that permission and which on any view was not part of the
‘forecourt.’ The area to which the
enforcement notice, as amended, applies is the area hatched on the plan at p
38. The decision letter is at p 34 of the documents. We shall come back later
to the inspector’s report and the decision letter.
The appellants
appealed to the Divisional Court, which, as we have said, dismissed their
appeal. The two appeals are governed by different provisions of the Act. The
right of appeal to the Secretary of State against the enforcement notice is
governed by section 88, which sets out in subsection (1), subparagraphs (a) to
(g), the grounds on which such an appeal can be based. The appellants’ notice
of appeal in this case (page 51) was based on grounds (a), (b) and (c) or (d).
The right of appeal from the Secretary of State is governed by section
246, which only gives a right of appeal on a point of law. The right of appeal
to the Secretary of State from the refusal of planning permission is governed
by section 36, and the right of appeal from the Secretary of State by
section 245: that section gives the High Court power to quash the orders or
actions of the Secretary of State to which the section applies, which include a
decision by him on an appeal under section 36: see sections 245 (3) and 242 (3)
(b). The court may quash ‘if satisfied that the order or action in question is
not within the powers of this Act or that the interests of the applicant have
been substantially prejudiced by a failure to comply with any of the relevant
requirements . . .’ (section 245 (4) (b)). ‘The relevant requirements’ are
defined by section 245 (7). There is an overlap between these two appeals.
Ground (a) of the grounds of appeal against an enforcement notice specified in
section 88 (1) of the Act is ‘that planning permission ought to be granted for
the development to which the notice relates or, as the case may be, that a
condition or limitation alleged in the enforcement notice not to have been
complied with ought to be discharged,’ and ground (a) of the appellants’ notice
of appeal to the Secretary of State (page 51) was under this subparagraph.
Section 88 (7) of the Act provides that the appellant against an enforcement
notice shall be deemed to have made an application for planning permission for
the development to which the notice relates.
Ground (1) of
the appellants’ notice of appeal to this court is as follows: ‘That, as a
matter of law, it was not open to the Secretary of State to find that the term
‘forecourt’ applied to all open land on the appellants’ site because the word
should be interpreted in its natural and ordinary meaning: that is to say, the
petrol filling area or apron of a garage and/or the land in front of the
buildings and not land at the side.’ Mr
Payton argued that the ‘forecourt’ of these premises was only the area on the
north (or petrol pumps) side of the imaginary line drawn from the western end
of the kerb on the left of the entrance to the south-east corner of the
lubrication bays, and that the land to the south of that line on which the car
sales took place was not part of the ‘forecourt’: he said that it was what he
called a ‘sidecourt.’ He said that
condition 9 therefore did not apply to that part of the site and there was
therefore no breach of it. The Secretary of State dealt with this point in
paragraphs 6 and 8 of his decision letter at p 35 of the documents. In
paragraph 6 he said:
The term
‘forecourt’ is not capable of exact definition. The view is taken that the
forecourt of a building which may be used for the purposes thereof is generally
that area of land in private ownership lying on one or more sides of the
building between the building and the public highway. It is clear from Heron
Service Stations Ltd v Coupe [1973] 1 WLR 502 that it is accepted
that the apron of a petrol filling station (usually concreted) is referred to
in common parlance as the ‘forecourt.’
It is considered in any event that what land forms the full extent of a
forecourt is a matter of fact and degree in each case. Here the view is taken
that the forecourt is the land in front and at the sides of the buildings
forming the shop, office, store and the lubrication bay: the latter is set at
an angle, and as a matter of fact and degree it is concluded that the forecourt
takes in the whole of the frontage on to Mare Street including the part from
the southerly entrance point in Mare Street round to and including the whole of
the frontage on to Richmond Road.
Then in
paragraph 8 the Secretary of State says:
For the
reasons given in paragraph 6 it is considered that the car sales area in front
of the lubrication bay fronting Richmond Road is part of the forecourt referred
to in the conditional planning permission of 1971 and is part of the same
forecourt referred to in the notice. Cars are admittedly being displayed
for sale on this land and therefore there has been a breach of planning control
as alleged in the notice and the appeal fails on ground (b).
An appeal
under section 246 lies only on a point of law. ‘Forecourt’ is an ordinary
English word, and Mr Payton has entirely failed to persuade us that the
Secretary of State fell into any error of law in deciding that on the facts of
this particular case the place where the sales of cars took place was part of
the forecourt. Indeed, each of us would have come unhesitatingly to the same
conclusion. The Lord Chief Justice said that he found Mr Payton’s argument that
the meaning of ‘forecourt’ in this condition must be limited so as to allow
sales somewhere on the site ‘too intricate for me.’ We agree.
The second
ground of appeal is that the inspector failed to include in his report a
finding of fact based on an agreement between the parties as to a
previously-existing use for car sales at no 271. Mr Newman, a director of the
appellant company, said in paragraph 4 of his affidavit (at p 17 of the
documents): ‘I was present and gave evidence at the inquiry held on February 20
1974. At the opening of the inquiry, the solicitor for the second
respondents’–that is to say, the council–‘said in answer to the inspector that
he did not challenge that there was, prior to rebuilding in 1971, an
established use for car sales on the strip of land on the south side of the
site. It was agreed, therefore, that it was unnecessary that evidence should be
given on oath or that witnesses should be called to deal with that issue. In
consequence, our counsel did not call A J C Leigh, a director of a former occupier
company, who was available to give evidence on this issue.’ Mr Payton told us that the admission went
further, and was that this use went back before January 1 1964, the relevant
date for an ‘established use’ under sections 94 (1) (a) and 88 (1) (d) of the
Act, and we think he said before the Town and Country Planning Act of 1947 came
into force on July 1 1948. The inspector’s report made the following references
to the previous use for car sales:
Under
‘Case for the Appellant’:
Para 11: ‘No
271 . . . for many years had been a garage where cars were sold.’
Para 27:
‘Existing use rights apply to this area for car sales. . . .’
Under
‘Case for the Planning Authority’:
Para 33: ‘It
is not denied that a car sales use previously existed at no 271.’
Under
‘Findings of Fact’:
Para 42 (5):
‘Part of the site, formerly no 271, now occupied by cars displayed for sale,
had a long car sales use prior to the permission [of 1971] being granted.’
The Secretary
of State said in paragraph 9 of his decision letter: ‘The facts and evidence
show that part of the site, formerly 271 Mare Street, is now occupied by cars
displayed for sale and had been used for car sales as part of a separate garage
use at that address. The evidence as to whether the car sales use had become
established is inconclusive.’ Mr
Payton’s complaint is that the inspector failed to include in his report a
finding of fact as to the date from which the car sales use at no 271 had been
carried on, or a finding that it was an ‘established use,’ and that this misled
the Secretary of State into saying that the evidence was inconclusive. He said
that this omission by the inspector was a breach of rule 12 of the Town and
Country Planning (Inquiries Procedure) Rules 1974 (SI 1974 no 419), which
provides that the appointed person (that is the inspector in this case) ‘shall
after the close of the inquiry make a report in writing to the Secretary of
State which shall include the appointed person’s findings of fact and his
recommendations. . . .’ This rule is a
‘relevant requirement’ under section 245 (7) of the Act.
Mr Payton was
asked during the argument whether he was contending that this use established
before 1971 made condition 9 invalid, and he said he was not. In this he was in
our view clearly right: see Prosser v Minister of Housing and Local
Government (1968) 67 LGR 109 and Kingston upon Thames Borough Council
v Secretary of State for the Environment [1973] 1 WLR 1549. What he (Mr
Payton) did say was, first, that this omission meant that the inspector’s
report was not a report at all, but was a nullity; that the Secretary of State
had therefore made his decision without having any report on which to base it;
and that his decision on both appeals was therefore also a nullity or wrong in
law. Like the Lord Chief Justice, we find it impossible to believe that the
inspector’s omission to say that the ‘long car sales use’ referred to in his
finding of fact went back before January 1 1964, or even before July 1 1948,
made his report a nullity. In our judgment it clearly did not. Then Mr Payton
said that if the Secretary of State had known that the car sales use was an
established use in the technical sense of section 94 (1) (a) of the Act,
instead of thinking that the evidence was ‘inconclusive,’ he would or might have
been more sympathetic to the appellants’ application for planning permission
for car sales or for the discharge of condition 9: and he (Mr Payton) asked us
to remit the case to the Secretary of State for reconsideration in the light of
this further information. Mr Woolf conceded that if this court felt that the
Secretary of State might have come to a different conclusion on the planning
appeals if he had had this additional information, the appellants would have
been ‘substantially prejudiced,’ and that in some cases a previous ‘established
use’ might be material on a planning appeal. But he said it was not material in
this case.
In our
judgment, there are no reasonable grounds for thinking that the decision of the
Secretary of State on the planning appeals would or might have been different
if he had had this additional information. Mr Payton made some criticism of Prosser’s
case, to which we will come back later, but in our opinion there is nothing to
throw any doubt on the actual decision in that case, which was that where (as
in the present case) there has been an application for a new planning
permission and a grant of permission subject to an express condition
prohibiting a previous established use, and the new permission has been acted
on, the previous use is extinguished. Further, nos 271-275 were not merely a
different ‘planning unit’ from the old no 271: they were a completely new and
different physical unit, to which we think the previous use of no 271 was
irrelevant. The reasons given by the inspector for recommending refusal of
planning permission for the car sales use, and accepted by the Secretary of
State, were based on the disadvantages to the new premises as a
whole–especially congestion of the service and filling station–which would
result from the car sales use, to which reasons the previous use of no 271
separately is quite irrelevant. Although the enforcement notice did not rely on
a breach of condition 8 (car parking spaces), we agree with Mr Woolf that this
was relevant on the planning appeals.
Finally, Mr
Payton suggested that the Secretary of State had misunderstood the decision in Prosser’s
case and that this might have influenced his decision on the planning appeals
(see paragraph 9 of the decision letter). Mr Payton referred us to several
later cases in which some judges have expressed doubts or reservations as to
the full scope and extent of the results of Prosser, but as we have
already said, there is in our view nothing in these dicta to throw any doubt on
the actual decision in that case or its application to the present case. In our
judgment there is nothing in this point. The appeal is dismissed.
The Secretary
of State was awarded costs. Leave to appeal to the House of Lords was refused.