Enforcement notice–Alleged conversion of house to multiple paying occupation–Meaning of ‘multiple paying occupation’–Not merely two or more people living in house–Must be two or more people occupying parts in the sense of ‘exercising control’–Convictions quashed
This was an
appeal by case stated from a decision of Newham Justices on October 8 1975
convicting Lawrence Ruire Duffy and Mrs Doris Banks of the offence of failing
to comply with an enforcement notice served by the London Borough of Havering
requiring the discontinuance of alleged multiple paying occupation of a house
in 165 Hornchurch Road, Hornchurch, Essex.
N B Primost
(instructed by Graham Harvey & Co) appeared for the appellants, and B A
Payton (instructed by J Head, Borough Secretary to the London Borough of
Havering) represented the respondent.
Giving
judgment, LORD WIDGERY said: This history of the case takes us back a few
years. It concerns a two-storey semi-detached house in a mixed residential area
of Hornchurch. At the date of the enforcement notice to which I will come in a
moment the premises were owned by Mrs Banks, who was the owner at all material
times, and had been let out in bed-sitting rooms. By implication rather than by
express provision the bed-sitting rooms had been well equipped with sink and
refrigerator and the like, and Mrs Banks was running the house so adapted and
which was 165 Hornchurch Road. The local authority were dissatisfied with this
use and so they served an enforcement notice on the footing that it had been
undertaken without consent and was a material change of use. The language of
the enforcement notice is important, at all events so far as we are concerned,
for the recital of the infringement of the planning code. It runs thus:
‘Whereas it appears to the council that the premises known as 165 Hornchurch
Road, Hornchurch, shown coloured red on the attached plan marked ‘A’ within the
said London Borough are being used for multiple paying occupation without the grant
of consent required in that
Of course it means that there has been a change of use, and that the change of
use is from something to multiple paying occupation, and it contains the
allegation that that change was a material change requiring consent.
For some time
events marked time because Mrs Banks, who was the recipient of the notice,
appealed against it to the Secretary of State, and, although her appeal was
unsuccessful, the notice was in suspense until the appeal was disposed of and
the notice became effective, I think, on May 3 1973 or some date very close to
that. The notice having become effective, the planning authority had to turn
their minds to the question of enforcement action and the control of this, as
they saw it, unauthorised use. We find Mrs Banks also showing very natural
concern for the situation and seeking advice from the local planning experts on
planning law. No one would wish to discourage the councils from helping their
citizens as much as they can, and I certainly do not wish anything I say in
this case to discourage the officers of the council from giving the best
service which they can. Unfortunately the officers consulted by Mrs Banks on
the meaning of the phrase ‘multiple paying occupation’ gave her, as though it
were the law of the Medes and Persians, what in fact seems to have been no more
than a set of guidelines used by council officials concerned with planning. However
that may be, she was given advice which was perhaps not of the most useful
kind, but again events in this case had taken a turn which renders it
unnecessary to take that further. I would pick up the story again at the summer
of 1974 when, it will be remembered, the enforcement notice is now effective
again and Mrs Banks is concerned about what she is doing in that regard.
By July 25
1974, which is the date chosen in the information as the date of the offence,
the cookers and the refrigerators and the meters which had graced the
bed-sitting rooms had all gone. By that time or a little later, and a week or
two matters not for this purpose, Mrs Banks had been in touch with a Mr Duffy
(the appellant in these proceedings) and, following the advice that she received,
she granted Mr Duffy a weekly tenancy of the whole of this house at a rack
rent. The intention quite clearly was that Mr Duffy should then rent it and
that it should be occupied by a number of people, whom one might perhaps call
lodgers if the term is not too accurately construed, but Mr Duffy was to rent
the house for the benefit of a number of people who were going to live there.
When we come to July 25 in this connection we find living on the premises Mr
Duffy (the appellant) and also a bus driver and four other people, all working
men in that part of Hornchurch, and the arrangement under which they worked was
that Mr Duffy was paid £10.50 a week for board and accommodation. They had
their bedrooms, although sometimes a bedroom was shared, and Mr Duffy had to
pay Mrs Banks, the owner, for gas and electricity and various matters of that
kind, and also, of course, for the rent which was charged under the lease. At
the vital moment, therefore, one gets the picture of the situation in this
form. The house is let to Mr Duffy. Mr Duffy is maintaining four other men–five
of them living in the house–and they eat Mr Duffy’s food and Mr Duffy is
responsible for the organisation of the premises. I have deliberately tried to
describe all that in as neutral language as possible.
The point that
arose in the court below and arises in this court can be put this way. The
planning authority (the respondent in these proceedings) sought to enforce the
enforcement notice which had been served as long ago as 1971 and they issued
informations against Mrs Banks and Mr Duffy alleging a breach of the
requirements of the notice. The defendants in those proceedings, that is Mr
Duffy and Mrs Banks, could not challenge the correctness of the statement
contained in the notice that there had been a material change of use. The
appeal to the Secretary of State had put an end to any argument on that point.
What the prosecution had to show, and what the defendants Mr Duffy and Mrs
Banks would themselves endeavour to challenge, was that their conduct on July
25 1974–the date chosen–was in breach of the requirement of the enforcement
notice.
So one goes
back to the enforcement notice to see what that requirement is and one then
asks oneself whether that requirement has been complied with or not. The
questions may not be as easy to answer as that, but they are posed as simply as
that and we are not here concerned with construing the Town and Country
Planning Act or anything of that kind. We are simply concerned with looking at
the enforcement notice, looking at the language used and saying: was the
conduct of these people on July 25 a breach of that requirement? What was the requirement? The complaint is that the house is used for
multiple paying occupation. We have been told that this a phrase much used in
town and country planning circles nowadays, and no doubt there are many
versions of its meaning in circulation. We have got to adopt the meaning which
we think it ought to have in this context having regard to the actual language
used and the natural meaning of those words. It seems to me it is a phrase
which is not by any means easy to give a meaning to. However, one thing is
clear and that is that it envisages the use of the house for multiple
occupation. I do not know that the word ‘paying’ in the context of this case
makes very much difference and I do not propose to say anything about it. But
one thing which one can say with confidence is that the condition prohibited
involved, among other things no doubt, multiple occupation and so one asks
oneself what is the meaning of ‘multiple occupation’ in the context of this
case? What is the meaning which the
recipient of the notice should give to it having regard to the meaning of the
word?
I again am in
no doubt that what is contemplated here is not that there should be two or more
people living in the house but that there should be two or more people
occupying parts of the house in the common law sense of occupation meaning
‘exercising control.’ I think what one
has to look for to give this phrase its proper meaning is some kind of physical
division of a house so that there are parts in separate occupation. Then I
think you can speak of multiple occupation, and if you have such a separation
you can go on and consider what ‘paying’ means should you be unlucky enough to
have to reach a conclusion on that as well. I do not say that the phrase will
necessarily have this meaning in another enforcement notice, although I suspect
it probably will. But as far as this notice is concerned it seems to me that
multiple occupation in the sense in which I have defined it is essentially to
be proved before the planning authority can say that the enforcement notice has
been breached.
Accordingly,
since the justices quite obviously did not approach the matter on this basis, I
think we have to look at it again, and when one looks at the situation
prevailing on July 25 it is demonstrable, as I hope I have demonstrated, that
there were not then two separate occupations of the kind to which I have
referred. There was a single occupation and Mr Duffy was the occupier. There
seems to be no reason to send this case back for further elucidation, because
that, as I see it, is the only possible conclusion consistent with the findings
of fact in the case. I think therefore that these convictions were wrongly
entered and I would allow the appeal and quash them both.
CROOM-JOHNSON
and MAY JJ agreed, and the appeal was allowed with costs.
