Town and country planning — Appeals from Queen’s Bench Divisional Court — Decisions of Secretaries of State upholding enforcement notices challenged — The question in both appeals was whether the appellants, owners of discount stores, were in breach of planning control, and thus subject to enforcement notices, by use of premises in the first case as a retail supermarket and in the second case as a retail discount store — In the first appeal planning permission for an improved motor service station included permission to convert an existing workshop to a ‘retail showroom’ — Held that there was an implied limitation that the showroom should be used for the sale of cars and automobile goods and accessories — Use as a retail supermarket for the sale of groceries, bread, confectionery, meat, cigarettes and other like goods was a breach — In the second appeal the planning permission as regards the showroom was specifically limited to ‘car showroom’ — It was sought to overcome this difficulty by granting a licence to another company, as concessionaire for a short period, to use the showroom for the sale of cars, after which the appellants used the building as a retail discount store — Held that such minimal or token use for the sale of cars did not enable the appellants to take advantage of the Town and Country Planning (Use Classes) Order to justify use as a retail store — Enforcement notices upheld in both cases and appeals dismissed.
In the first
appeal the appellants were the Kwik Save Discount Group Ltd and the premises
which were the subject of the enforcement notice were situated at Erw Cross
Roads, Holyhead; the respondents were the Secretary of State for Wales and Ynys
Mon Borough Council. In the second appeal the appellants were the Kwik Save
Discount Group Ltd and five other companies, Status Discount Ltd, Courtesy
Shoes Ltd, North West Vintners (Retail) Ltd, Hirsel Ltd and Supermarket Tyre
Services Ltd; the respondents were the Secretary of State for the Environment
and Oldham Borough Council. The enforcement notice in this appeal related to a
site in Oldham. The decisions of the Divisional Court were reported at (1978)
247 EG 561 and 562., [1978] 2 EGLR 31
Andrew Rankin
QC and W Rankin (instructed by Lee, Bolton & Lee, agents for Bullivant
& Co, of Liverpool) appeared on behalf of all the appellants; Simon Brown
(instructed by the Treasury Solicitor) represented the respondent Secretaries
of State; the planning authorities were not represented and took no part in the
proceedings.
Giving the
judgment of the court, STEPHENSON LJ said: We have before us two appeals, with
leave, from two decisions of the Divisional Court given on June 26 1978. They
dismissed appeals from (1) a decision of the Secretary of State for Wales given
on July 22 1976, whereby he upheld an enforcement notice issued by the Anglesey
County Council against the appellants on February 8 1974; (2) a decision of the
Secretary of State for the Environment given on December 15 1976, whereby he
upheld an enforcement notice issued by the Oldham Borough Council against the
appellants on August 5 1975. The first notice relates to a site in Holyhead, the
second to a site in Oldham. We shall take the Holyhead appeal first.
On September 1
1972 Esso Petroleum Co Ltd applied to the Anglesey County Council for
permission to develop land at Erw Cross Roads, Holyhead. As a result of
previous planning applications and permissions there was on the site a number
of buildings comprising Swift’s Service Station. In December 1952 permission
had been granted for use of land there, which did not include the present
appeal site, as a public service garage. In April 1955 a detailed application
for the erection of a petrol filling station and showroom on the same land was
approved. In April 1963 permission was granted for additions to the service
station, comprising a new store and showroom. On March 12 1965 permission was granted
for the erection of a workshop on land adjoining the service station, and that
is the present appeal building. On January 7 1969 conditional permission was
granted for a new access to the workshop from the trunk road adjoining the
site.
In September
1972 Esso were prospective purchasers of the site and buildings comprising
Swift’s Service Station. In their form of application they stated:
(4) Describe briefly the proposed development
including the purpose for which the land and/or buildings are to be used. If
they are to be used for more than one purpose, give details. See note (a):
Conversion of
existing workshop to retail showroom including new display windows.
Erection of
specialist service bays. Installation of canopy, new tanks and new self service
pumps.
Alterations
to existing service station building. Use of existing waste ground for car
sales display and parking.
Against (5):
(5) State the purpose for which the land and/or
buildings are now used, and if used for more than one purpose, give details:
Petrol
service station and workshop.
Against (10):
(10) If the building is to be used wholly or
partly for industrial or commercial use, state:
(i) the nature of the proposed industry or
business, including, if for industrial use, a brief description of the type of
processes to be carried on;
(ii) the total floor area:
. . . are the
words:
(i) Existing petrol service station to self
service. Existing workshop to retail showroom. New specialist service bays —
car diagnostic — tune-up, etc. Existing showroom to shop for retail of motor
vehicle accessories and petroleum products.
(ii) Existing service station building — 2,500 sq
ft.
Workshop to be
retail showroom — 6,750 sq ft.
New Service
bays — 1,725 sq ft.
On January 2
1973 the council granted conditional permission in these terms:
. . . in
accordance with the plan and application submitted to the Council on October 4
1972 subject to the condition(s) specified hereunder:
(i) The development to which this permission
relates shall be begun not later than the expiration of five years beginning
with the date of this permission.
(ii) The type and colour of the facing bricks
proposed to be used in the construction of the building shall be submitted to
and approved in writing by the local planning authority before any development
is commenced.
(iii) The type and colour of the exterior finishing
materials is reserved for further consideration and approval before any
development is commenced on the erection of the building.
(iv) The development permitted by this consent
shall be carried out strictly in accordance with the plans attached to this
permission.
On March 19
1973 the appellants’ solicitors wrote to the council:
We are acting
for a proposed purchaser of this site and the vendors solicitors have supplied
us with a copy of a planning application dated September 1 1972 by E C Blades
on behalf of Esso Petroleum Company Limited. The application is for the
conversion of the existing workshop to a retail shop and showroom including the
retail of motor vehicle accessories and petroleum products. The existing petrol
service station is to be converted to self service and there are to be
specialist service bays. The existing service station building has an area of
two thousand five hundred square feet while the area to be used as a retail
shop and showroom will have an area of six thousand seven hundred and fifty
square feet; the new service bays having an area of one thousand seven hundred
and twenty five square feet.
Omitting the
next paragraph, the letter goes on:
We should be
grateful for your confirmation that the planning permission given by your
council on January 2 1973 gives permission for use, inter alia, as a
retail shop and showroom in accordance with the plan and application submitted
to the council on September 1 1972 as well as in accordance with the further
plan submitted to the council on October 4 1972.
On March 21
1973 came the prompt reply:
With
reference to your letter of March 19 in connection with the above, I have
looked at the planning consent issued and I would confirm that this permission
ref no V/607j dated January 2 1973 gives permission for a retail shop and
showroom in accordance with the plan and application which was submitted to the
planning authority on October 4 1972.
The ‘proposed
purchaser’ on whose behalf this request for confirmation was made was not Esso
but the appellants, and on March 27 1973 they entered into a contract to
purchase the site from a Mr Williams, who still owned the adjoining land
occupied by Swift’s Service Station. On May 18 1973 the purchase was completed
and after certain alterations the appellants opened the present appeal building
not as a retail showroom for motor vehicles or accessories but as a
supermarket, the Kwik Save Discount Store.
The council
took the view that this was a breach of planning control in that ‘the said land
has been developed by the making of a material change in the use thereof to a
use for the purpose of a retail supermarket for the sale of groceries, bread,
confectionery, meat, cigarettes and other like goods without the grant of
permission required in that behalf under Part III of the Town and Country
Planning Act 1962 or Part III of the Act of 1971’. They therefore gave notice:
That in
exercise of the powers contained in the said section 87 of the Act of 1971 the
Council HEREBY REQUIRE YOU within the period of twelve calendar months
beginning with the date on which this notice takes effect to discontinue the
use of the said land for the purpose of a retail supermarket for the sale of
groceries, bread, confectionery, meat, cigarettes and other like goods and to
restore the said land to its condition before the said development took place.
The appellants
appealed under section 88 of the Town and Country Planning Act 1971. The
inspector who held an inquiry into their appeal reached no conclusion on their
appeal under subsection (1)(b), as it depended, in his view, expressed in paragraph
154 of his report of October 1975, upon an interpretation of law and the
documents, but on their appeal under subsection (1)(a) he recommended that
planning permission should not be granted if it was required. As we have said,
the Secretary of State (who is the only respondent to this appeal, the council
not being a party to it) decided on June 22 1976 in favour of the council, and
the Divisional Court dismissed the appellants’ appeal from his decision.
The appeal has
been pursued on two grounds, at least as far as this court. But on the second
day of its hearing before us Mr Rankin on behalf of the appellants conceded
that as there was in fact no use of the appeal building as ‘a shop for the sale
of motor vehicles’ he could not rely on any change of its use to another
purpose within Class III of the Schedules to the Town and Country Planning
General Development Order 1973 and the Town and Country Planning (Use Classes)
Order 1972, as requiring no planning permission by virtue of article 3 in those
orders. He accordingly abandoned the second ground in his notice of appeal. We
need therefore read only the first ground:
1 The Divisional Court was wrong in law in
holding:
(a) that the planning permission granted on
January 2 1973 in respect of the said land and in particular the building on
the appeal site restricted the use thereof to an activity involving automobile
goods;
(b) that the said planning permission created a
planning unit with a defined scope and purpose and that parts of the said land
the subject matter of the said planning permission could not be developed in
isolation for purposes and uses not within the original scope and purpose of
the planning unit without express planning permission being obtained for the
relevant particular part of the said land.
Why, asked Mr
Rankin, should this permission to convert the existing workshop to a retail
showroom, including new display windows in accordance with the plans attached,
and to use it as a retail showroom be a permission restricting its use to the
display and retail sale of automobile goods?
Nothing would have been simpler than to limit the use to use for a
retail motor car showroom, or for a car sale showroom, which is how the
Minister of Housing and Local Government described ‘use for the sale of motor
vehicles’ in Circular no 10/60, paragraph 7, when that was introduced as a
fifth exception into what was then Class 1 in the Schedule to the Town and
Country Planning (Use Classes) (Amendment) Order 1960. (Compare also the
permission for a ‘car showroom’ which is the subject of the Oldham
appeal.) But the permitted use was not
so restricted expressly by any such qualification of the words ‘retail
showroom’ or by a condition. In circular after circular, beginning in May 1948
and including Welsh Office Circular no 215/72 issued on September 25 1972,
within a fortnight of this application, the responsible minister had drawn the
attention of planning authorities to the fact that where it was desirable to
restrict the use of a building to a single named activity this could be done by
way of a condition of the kind set out in Circular no 5/68 (paragraph 23 and
appendix, paragraph 7).
The evidence
of the council’s development control officer had been that the possibility of
imposing a condition restricting the use of the workshop had not been
overlooked; indeed, that he had given careful consideration to the need for
such a condition but had concluded that it was unnecessary.
Furthermore
(said Mr Rankin) the four conditions imposed under the power given by section
29(1)(a) of the Act of 1971 related to entirely different matters. Section
33(2) conferred a power to specify the purposes for which a building permitted
to be erected could be used, and section 34 required prescribed information
about planning applications and decisions to be registered and available for
inspection. The specified purpose for which the existing appeal building was permitted
to be used, and could be seen by the public to be permitted to be used, was
simply for a retail showroom. That was contrasted with the ‘use of existing
waste ground for car sales display and parking’ and the use of ‘existing
showroom to shop for retail of motor vehicle accessories and petroleum
products’ — both uses plainly restricted as the use ‘for retail showroom’ was
not. So also a subsequent permission of June 29 1973 restricted the use of a
shop on the site to the sale of tyres, batteries and accessories only and for
no other purpose whatsoever. One further submission was that a retail showroom
meant a retail shop and showroom, and that meaning was confirmed by the council
in their letter of March 21 1973.
We do not
consider that the letter carries the matter any further in either direction. If
the writer misinterpreted the grant of permission, his opinion would be
irrelevant to its true construction and would not stop the council — or the
Secretary of State — from relying on that construction. But there was no
misinterpretation of the grant. It did give permission for a retail shop — from
the existing showroom, and for a showroom — from the existing workshop,
whatever the true nature and extent of the permission for a retail showroom.
We doubt whether
permission to use a building for a retail showroom could, without more, mean
permission to use it for a supermarket and we would have been willing to
dismiss this appeal
but for a concession by Mr Brown for the respondent that in a planning context
it might. We should have thought it difficult to argue that a tenant, for
instance, who convenanted with his landlord to use business premises for a
retail showroom was not in breach of covenant if he used them for a
supermarket. But the Divisional Court heard no argument and gave no decision on
this simple point and we therefore turn to their decision and the reasons given
in their judgments for holding that in this grant of planning permission
‘retail showroom’ did not mean or include ‘supermarket’.
The judgment
of Lord Widgery CJ (with which Talbot J agreed) linked Mr Rankin’s argument
that there was no express restriction on the activities in the appeal building
with his argument that the building was a separate planning unit, and preferred
the respondent’s argument that there was no separate planning unit and there
was an implied restriction to automobile goods. The Lord Chief Justice regarded
the appeal building as one of a complex of buildings supplementary one to
another and was of the opinion that a new planning unit could not be created
either by the owner selecting one of those buildings and conveying it to a
purchaser or by a purchaser by his own say-so whipping it out of the planning
unit formed by the whole complex or what he called ‘the main site’.
ACKNER J
agreed that the appeal be dismissed: He added:
The essential
question seems to be to be what was the nature of the permission granted on
January 2 1973. In the context of the application made by Esso Petroleum, to
which my Lord has referred, and in the context of the actual approval, which
was in these terms: ‘Alterations and extensions to Swifts Service Station, Erw
Cross Roads, Holyhead, in accordance with the plan and application submitted to
the Council’, it seems to me clear that the permission was limited to the use
of the retail showroom for the sale of cars and was not without limitation.
We do not find
the question of a separate planning unit, or the authorities relating to it,
important or helpful in deciding this appeal. We agree with Ackner J (as he
then was) that the essential question is the nature of the permission granted
and that it must be construed in the context of the application. That means, as
Mr Brown has argued for the respondent, in the context of the whole of the
proposed alterations and extensions to the service station buildings on the
whole site which were the subject of this composite application. From the
application as a whole and the other parts of it we have no hesitation in
implying the limitation to the use of the showroom for the sale of cars and
automobile goods and accessories. If that means that the whole site or complex
is being treated as one planning unit, so be it. It does not mean that no site
can be developed ‘piecemeal’, as Mr Rankin contended was the effect of the
argument for the respondent, only that this application related to a number of
separate but connected ‘pieces’.
Mr Brown
conceded that the appeal building was not to be used for a purpose ancillary to
the service station but contended that it was to be used as a constituent part
of it or of the overall site. For that contention, however described, he relied
on five pointers; the application was made by Esso; for use of the appeal
building as a retail showroom; with the physical characteristics shown in the
deposited plans and drawings of display windows, double doors and a ramp
showing that it was designed as a car showroom; what was permitted was
‘alterations and extensions to Swift’s Service Station’; one of which was to
one building on a site which was part of a larger site with other buildings
being altered and extended.
In our
judgment these items in the application and grant do point to the limitation or
restriction implied by the Divisional Court. The express restrictions to cars
and motor vehicle access in other parts of the application support rather than
contradict the restriction, as does the fact that one existing showroom (we do
not know what it displayed) is being converted to a shop for motor vehicle
accessories at the same time as an existing workshop (for repair of motor
vehicles presumably) is being converted to a showroom.
We would
accordingly dismiss the Holyhead appeal.
The Oldham
Appeal relates to a grant by the Oldham Borough Council to a company called
Transport & General Investments Ltd on December 10 1973 of planning
permission for the erection on a site in Oldham of a self-service
petrol-filling station, carwash, car showroom, and tyre fitting bay. Soon after
the grant the company entered into negotiations for the sale of the site to the
appellants, a company with which the vendor company had no connection, ending
in a sale to the appellants which was completed on April 16 1974. The showroom
was erected and handed over to the appellants about the end of January 1975.
Reading from the papers:
On advice
received at that time the company understood that the showroom building would
have to be used for the sale of cars, and so a concession for the sale of cars
was offered to Barkers of Wortley Ltd, motor retailers. They were informed that
only a short-term licence would be granted, and that this would be terminated
when the company was ready to undertake other forms of retail sales. Terms were
agreed, and the concessionaire took possession on February 25 1975 although the
agreement was actually signed on March 13 1975. The concession continued for
about one month, and was terminated on March 27 1975. On April 10 1975 the
building was opened as a retail store, and the form of retail trading which
then began is substantially the same as at present.
The concession
agreement provided for the premises to be rent free and for the appellants to
supply capital funds or guarantee up to £25,000 and to bear any loss and be
entitled to any profit. Five cars were brought to the showroom for sale in
February 1975 and were advertised in two papers on March 13 1975. On August 5
1975 the respondent council served an enforcement notice on the appellants
stating that there appeared to have been a breach of planning control in ‘the
making of a material change in the use of the said land from use as vacant land
and buildings intended for development and use as a self service petrol filling
station, car wash, car showroom and tyre fitting bay to use for the purpose of
a retail discount store with ancillary car parking’ . . . and requiring the
appellants to ‘(i) Cease the use of the said land as a retail discount store
with ancillary car parking’, and ‘(ii) remove all merchandise from the said
land’.
In April 1976
the appellants’ appeals (only one of which is relevant) were heard by an
inspector, who stated his conclusions beginning with a passage which Talbot J,
giving the first judgment in the Divisional Court, cited with implied approval,
as follows:
The offering
of five cars for sale for a period of about one month in a building with a
floor space of about 20,000 sq ft amounted to no more than a token use of the
appeal premises as a shop for the sale of motor vehicles, so minimal as to be
of no planning significance. Article 3 and Class III(b)(v) of Schedule I of the
General Development Order 1973 refers to a change of use of premises from ‘use
as a shop . . .’ and not from a permitted use of premises which have not actually
been brought into use. There was therefore no effective use of the new building
on the appeal site until the appellant’s use of it as a discount store, which
constituted a material change of use from a non-use, involving development for
which specific planning permission was required.
The inspector
went on to recommend that if it was decided that development requiring planning
permission was involved planning permission should not be granted. The
Secretary of State accepted his recommendation, upheld the relevant enforcement
notice and refused planning permission.
I again read
from Talbot J’s judgment in the Divisional Court:
It is against
the Secretary of State’s acceptance of that conclusion that Mr Rankin moves
this court to find that the Secretary of State was wrong in law, and that the
matter should be remitted to him for guidance. He relies upon the terms of the
relevant order, which I take from Volume 3 of the Encyclopaedia of Planning.
The relevant order from which I read is the Town and Country Planning General
Development Order 1977, though the terms of the previous order then applicable
we are told were precisely the same. The relevant part reads as follows:
‘Development consisting of a change of use to (b) use as a shop for any purpose
included in Class I of the Schedule to the Town and Country Planning (Use
Classes) Order 1972 from use as: . . . (v) a shop for the sale of motor
vehicles.’ So therefore it is argued by
Mr Rankin that development is permitted by reason of that part of the order, because
the appellants in changing to their discount store use did so from use of this
building as a shop for the sale of motor vehicles. If that is right, then the
appellants’ present use is a permitted use under the terms of the relevant
legislation.
The question
therefore is, was there a use of these premises for the sale of motor
vehicles? Mr Rankin accepts that what
the appellants did was in fact
bring themselves within the terms of the order. But accepting that, his
argument is that what in fact took place — and I have given it from the
citation of the facts found by the inspector — was in fact a use of these
premises as a motor car showroom. He submits that it does not matter how many
cars there are. It does not matter that the terms of the agreement were in
effect to guarantee Barkers of Wortley Ltd against any loss, and to subsidise
them if necessary. It does not matter that the period of time was in fact
short. What he said is, looking at what happened, can there be any other
description than that these premises were in fact used for the sale of motor
vehicles?
Though there
is no qualifying adjective in the order of the word ‘use’ Mr Woolf has
submitted that one ought to qualify it by the word ‘material’. To this end he
sought support from section 22 (1) of the Act. The relevant part of that
subsection is this: ‘In this Act, ‘development’ means the making of any
material change in the use of any buildings or other land.’ Therefore, as the change of use referred to
in the subsection is qualified by ‘material’, so also, he argues, that word in
the order must also be qualified in like manner. He points out that what in
fact took place was only a token activity, that when one comes to consider the
activity of selling motor cars this is a case where there were the trappings
only. No motor cars were concerned in this short period of time, and were being
advertised twice.
What is the
answer to these submissions? In my
judgment, the very fact that a device was resorted to by the appellants makes
me suspect the use to which it is said the land was put. The inspector and the
Secretary of State found that it was de minimis on the facts. I would
not disagree with that view, and in my judgment if a use is a de minimis
use it is not a use within the order.
But there is
yet a wider ground to which I would refer, which in my judgment leads me to the
conclusion that the appellants are wrong and that the Secretary of State came
to the right conclusion. Here there was the grant of a planning permission, as
I have referred to, in December 1972 for the activity involving motor cars, a
self service petrol filling station, a car wash, a car showroom, tyre fitting
bays, and so on. That was the permission, a grant for that activity, and in my
view it is not within that grant permission to take part of the site covered by
the permisssion and to make use of it for some business which is quite
different to that which is covered by the grant of planning permission. For
those reasons, in my judgment this appeal fails.
With that
judgment Lord Widgery CJ and Ackner J agreed.
In the
appellants’ notice of appeal that decision is challenged on three grounds, the
last of which is not pursued in this court.
It will be
seen that there is common ground between this appeal and the Holyhead appeal,
but the express restriction to a car showroom avoids any need to imply a
restriction to cars and compels the appellants to rely in this appeal on the
General Development Order and the Use Classes Order, which were ultimately no
help to the appellants in the other appeal. On the view which we take it
becomes unnecessary to consider the wider ground on which the Divisional Court
rested its decision at the end of Talbot J’s judgment. It is conceded that if
we have to support the decision on that ground only we should have to remit the
case to the respondent Secretary of State. But in our judgment the Divisional
Court came to a right decision on the first point and the appeal from it must
fail.
There is no
finding that the device of getting a reputable car sales company to ‘use’ the
showroom for car sales was improper. It was done openly on legal advice, and
the managing director of the company gave evidence that it was a genuine effort
to find another outlet for the sale of cars without a time-limit and if the
business had been successful he had hoped to continue, although he could offer
no explanation of the unusual terms of the concession. But it was admittedly a
device to bring the benefits of the General Development Order into operation by
creating a use for showing and selling motor vehicles from which a use for a
retail store could legitimately spring.
The only
question was therefore one of mixed law and fact:
(1) Was there in fact a use for the sale of motor
vehicles?
(2) If there was, was it minimal?
(3) If minimal, should it be disregarded?
The answer to
the first question was admittedly ‘yes’. Mr Rankin, for the appellants,
submitted that (2) and (3) should each be answered ‘no’. (2) is, in our
opinion, a question of fact which a reasonable Secretary of State was entitled
to answer ‘yes’, as the inspector answered it and as we think we would answer
it. (3) is, in our judgment, a question of law to which the answer is ‘yes’. We
can see no reason to exclude the commonsense de minimis principle from
such an area of life and law as this. To introduce the question whether the use
was ‘material’ is not, we think, helpful and may be misleading.
We would
therefore dismiss this appeal on that ground.
Both appeals
were dismissed with costs. Leave to appeal to the House of Lords was refused.
