Enforcement notices–Different notices served on landlord and tenant–‘Overall’ notice served on landlord in respect of whole site–Separate notices served on individual occupiers–Effect of non-service on landlord–Whether substantially prejudiced–Held not–Notices upheld
This was an
appeal under section 246 of the Town and Country Planning Act 1971 relating to
certain enforcement notices served under that Act by Eastleigh Borough Council
in about February 1975 in respect of property known as Wild Grounds, Brook
Lane, Botley, Hants.
The piece of
ground in question, with four buildings on it, at all material times belonged
to John Garth Skinner, a recipient of one of the enforcement notices, alleging
a material change in the use of the land by its use as an industrial site. A
further notice, alleging a material change in the use of a shed on the land,
was served on the occupier of the shed, Stanley John King, but was not served
on Mr Skinner, who now appealed, contending that he had been substantially
prejudiced. The second appellant was Mr King. The matter had previously been
the subject of appeal to the Secretary of State under section 88 of the 1971
Act. The Secretary of State had decided that he was entitled to disregard the
local authority’s failure to serve on Mr Skinner the enforcement notice served
on Mr King, since Mr Skinner had not been substantially prejudiced.
J Sullivan
(instructed by Lovell, Son & Pitfield, agents for Warner, Goodman & Co,
of Portsmouth) appeared for the appellants; D Latham (instructed by the
Treasury Solicitor) for the Secretary of State. The borough council were not
represented and took no part in the proceedings.
LORD WIDGERY
CJ, giving judgment, said that at all material times Mr Skinner was freeholder
of the whole area, including four buildings and certain undeveloped land. At
some stage they had been used for growing strawberries, but those days had long
since passed. The four buildings were now let separately to four individuals,
and were alleged to be used for industrial purposes and the like. The council
decided to take action in respect of the whole site. They served an enforcement
notice on Mr Skinner in respect of the whole site, and additionally sought to
serve individual enforcement notices on the individual occupiers of the
buildings. This conduct was undoubtedly prompted by section 87(4) of the 1971
Act, which required service on ‘the owner and on the occupier of the land to
which it relates and on any other person having an interest in that land, being
an interest which in the opinion of the authority is materially affected by the
notice.’ So in general terms one could
see that it was Parliament’s intention that the owner, and any other person who
had an interest, should have notice. It was submitted, and his Lordship thought
rightly, that where an enforcement notice was served, eg on a tenant, it must
also be served on the landlord, and vice versa. The local authority served an
enforcement notice in respect of the whole site on Mr Skinner, and individual
notices in respect of the individual users on the four occupiers. Thus there
were five notices altogether, and no copy of any individual notice was served
on Mr Skinner.
Thus, prima
facie, when the matter came before the inspector, Mr Skinner had a defence
under section 88(1)(e), but it was open to the local authority to say, if they
wished, that there had been no prejudice (s88(4)(b)). The notice served on Mr
Skinner was set aside on grounds now irrelevant, and the only surviving notice
of any consequence to Mr Skinner was one which was served only on Mr King. It
was a very narrow issue indeed. It was said that the notice against Mr King was
to be set aside on that account. The surveyor who appeared for the landowner
(Mr Skinner) told the tribunal below that his client had no knowledge of the
existence of the notice served on the tenant.
In the end it
seemed to his Lordship a very short point. He was prepared to accept everything
in favour of Mr Skinner’s contentions up to the section 88(4)(b) point, but he
had to consider whether Mr Skinner had been substantially prejudiced by his
failure to get a copy of the enforcement notice. There had been considerable
argument as to where the onus of proof lay, but the Secretary of State had
expressed his findings on the matter, and did not consider that there was
substantial prejudice. Unless it could be shown that there was no evidence on
which that conclusion could be based, or that the Secretary of State had
adopted some erroneous principle by leaving out some relevant factor or
including an irrelevant one, the court could not interfere with that finding.
The Secretary
of State took the view that there was no evidence to show that either Mr
Skinner or the occupier of the land had been substantially prejudiced by the
failure to serve identical notices on them. His Lordship was satisfied that the
Secretary of State’s conclusion could be sustained. There were many ways in
which the owner of land such as Mr Skinner could protect himself against
failure to receive a copy of a notice. One of the most elementary things would
be, on receiving an enforcement notice, to go down to the individual tenants to
see what they were up to.
His Lordship
would dismiss the appeal.
TALBOT and
WATKINS JJ agreed.
The appeal
was dismissed, with costs against both appellants.
