Enforcement notice prohibits display or sale of cars on ‘forecourt’ of garage premises–Definition of ‘forecourt’–Not limited to area immediately surrounding pumps–Further point on agreement between advocates at planning inquiry–Additional evidence as to established use would have made no difference–Decision of Secretary of State upheld
This was an
appeal by Leighton & Newman Car Sales Ltd, of 271 Mare Street, Hackney,
London E8, from a decision of the first respondent, the Secretary of State for
the Environment, upholding with modifications an enforcement notice served by
the second respondents, the London Borough of Hackney, requiring the appellants
to cease selling cars, or displaying them for sale, on the forecourt of their
premises.
Mr B Payton
(instructed by Clinton Davis & Co) appeared for the appellants, and Mr H K
Woolf (instructed by the Treasury Solicitor) represented the respondents.
Giving
judgment, LORD WIDGERY said that on the corner site of Mare Street and Richmond
Road, Hackney, there had been for a number of years a garage and petrol filling
station. The occupiers of the site desired to modernise and rebuild, and they
put in an application for planning permission. This was duly granted in terms
which, so far as material, permitted the construction of a petrol and filling
service station comprising a single-storey building with lubrication bays,
office, stores, lavatory, a petrol sales area with pumps and canopy,
underground petrol storage, a paraffin vending machine and the provision of 13
car parking spaces. It would be seen from those words authorising development
that this was to be a petrol filling station in a conventional form with the
natural fittings that went with it, and that there was to be car parking for 13
vehicles. The requirement with regard to car parking was emphasised by the
conditions to which this development was subject. Condition 8 required that the
whole of the car parking accommodation should be provided and retained solely
for accommodation of the vehicles of the occupiers and users of the premises.
In other words, in order to avoid congestion of the premises by an absence of
proper parking facilities, these 13 spaces had to be provided for people whose
vehicles came on business to the premises. Condition 9 was that no vehicles
should be sold or displayed for sale on the forecourt. The associated plan
showed the main road of Mare Street. It also showed the return frontage to the
site going down Richmond Road. It showed that petrol pumps were to be installed
in the right-hand half of the site as seen from Mare Street, and it specified
13 parking spaces running round the left-hand edge of the site, namely on its
Richmond Road frontage and for some distance into the Mare Street frontage.
Having
received planning permission, the occupiers of the premises carried out the
development but proceeded to use the parking places for cars displayed for
sale. Assuming that the relevant area was properly described as ‘forecourt,’
that seemed to be a use in direct contravention of condition 9. An enforcement
notice was duly issued by the planning authority which drew attention to the
condition and required the discontinuance of the unauthorised use. The matter
was taken by way of appeal to the Secretary of State, who on July 25 1974
issued a decision letter upholding the notice with certain modifications which
did not need to be considered in any detail. The case now came to the Divisional
Court under section 246 of the Act of 1971, which gave the
decision below erred in a point of law. The court had had the advantage of
considerable argument from Mr Payton covering a very wide area. In particular,
he had dealt with one aspect of planning law, which tended to determine that
where a new planning permission was granted in respect of a site and that
permission was carried out, the issue of the new permission and its being
carried out cancelled, as it were, the planning record of the site and started
it off afresh as a new hereditament with a nil use. The court had heard a great
deal from Mr Payton as to how far the authorities had reached that stage in a
simpler case than the present one, where there was no express condition in the
planning permission requiring that a previous use should be discontinued. He
(his Lordship) was not going to follow Mr Payton through those somewhat
intricate paths, because in this case there was in the planning permission a
specific condition requiring that the display of cars for sale should not take
place even though everyone knew it was a use to which the land had previously
been put. In his judgment, the law was that where there was an express
condition of that kind which was clear and unambiguous, then effect must be
given to it, even though the net result was that a former established use of
the land was no longer to be followed. He (the Lord Chief Justice) found
nothing outrageous or unreasonable about that, because the recipient of
planning permission need not exercise it. When permission was given subject to
conditions, the landowner had the choice of either carrying out the development
and complying with the conditions, or not carrying out the development. In this
instance there was an unpopular condition, the development was carried out and
the obligation to comply with the conditions was perfectly clear. But of
course, in order to say that that justified the present enforcement notice, one
had to be clear on the allegation that the condition was breached, and this
brought him (his Lordship) to the terms of the condition in which reference was
made to the fact that there should be no display of cars for sale on the
forecourt.
Mr Payton’s
principal argument was that in this case the place where the cars were
displayed was not on the forecourt, and if it was not on the forecourt, then of
course the display of the cars was not in breach of the condition. He (counsel)
contended that this was not a forecourt, first of all by saying that it was the
common understanding of men that the forecourt of a garage was the area round
the pumps and not an area which could extend to the edge of the site. This was
a proposition that he (Lord Widgery) was just not prepared to accept. What was
a forecourt in a given case must depend on the circumstances, and he was not
prepared to accept that the forecourt was, as a matter of law, confined to some
ill-defined area in the neighbourhood of the pumps themselves. Secondly, Mr
Payton argued that this could not be a forecourt because the terms of the
condition implied that there must be a power to display cars for sale
somewhere. The prohibition, so the argument went, was only on the forecourt,
and the implication was that somewhere else on the site there was an area where
cars could be displayed for sale. The result of that argument, it was
contended, was that one must be able to find somewhere on the site for selling
cars, and that meant that the area marked off for parking spaces was not part
of the forecourt. Again he (the Lord Chief Justice) found that argument too
intricate. The Secretary of State had taken the sensible view that in this
particular case, the area of the forecourt did extend to the parking places,
and he (his Lordship) could see no reason at all why in law that conclusion
should be said to be false.
Accordingly
the appeal against the enforcement notice, so far as it was based on section 88
(1) (b) and (d) of the Act of 1971, must fail, because there was no error of
law in the Secretary of State’s action on this notice. There was, however,
another and rather an unusual aspect of this particular appeal, and that was
that the court was asked to consider the position under section 88 (1) (a) as
well. This was of course a subparagraph whereby the Secretary of State might
give planning permission for the carrying out of the disputed development even
though the enforcement notice was a perfectly valid one, as in the present
case. Normally the court was not troubled with matters arising under
subparagraph (a) because they were very rarely points of law. The subparagraph
was concerned with planning opinion and discretion and things of that kind,
with which the court was not concerned. Mr Payton in this case, however, said
that there was a point of law in the Secretary of State’s disposition of the
matter under paragraph (a). Apparently there was some discussion between the
advocates before the inquiry began as to whether there was any dispute as to the
previous use of the site for car sales. Something was agreed, as to which the
court had no evidence but merely an explanation from counsel, which resulted in
some of the witnesses going home, witnesses who were there to speak to the
prior use for car sales. In the result, so it was submitted, the Secretary of
State never had it explained to him that there was a prior use of this land for
car sales which went back to the appointed day in 1948. It was said that that
was a fundamental matter because it would have affected the Secretary of
State’s discretion had he known that there was such an ancient and respectable
use for the car sales as that. Mr Payton went on to say that the inspector’s
failure to make this point clear meant that his report was no report at all in
law, and that that meant that the Secretary of State acted without any report
from his inspector, and that that meant that the Secretary of State erred in
law.
While he
admired Mr Payton’s ingenuity in building up this complicated structure, he (Lord
Widgery) thought that it crumbled because it was built on foundations which
failed. It was true that the Secretary of State was not informed that the prior
use for car sales was as extensive as the appellants maintained. He was clearly
informed that there had been a prior use for car sales, but his information did
not go to the length of saying that it went back to 1948 or any such date.
Nevertheless this was really a matter of no consequence at all. The Secretary
of State was considering whether as a matter of discretion there should be an
authorisation of car sales on the new hereditament as it appeared at the date
of the inquiry, and although he might have been somewhat influenced by the
knowledge that there had been a previous use for car sales, he (the Lord Chief
Justice) could not believe that the inspector’s report was rendered defective
to the point of nullity merely because it did not elaborate this particular
point. There was no substance in this argument, and the appeal should be
dismissed on all the grounds on which it was promoted.
ASHWORTH and
MAY JJ agreed, and the appeal was dismissed with costs. Leave to appeal was
refused.
