Town and Country Planning Act 1971–Enforcement notice–Permission given subject to condition to remove buildings at end of specified period–Whether condition valid–Condition held to be invalid by Secretary of State and enforcement notice quashed–Application of principle that condition must fairly and reasonably relate to permitted development — Whether permission needed at all–Use Classes Order, Class X–Whether applicants could blow hot and cold–Court of Appeal, reversing decision of Divisional Court, held condition valid
This was an
appeal by Newbury District Council against a decision of the Divisional Court
of the Queen’s Bench Division (1977) 24 EG 377 affirming a decision of the
Secretary of State for the Environment to quash enforcement notices served by
the former Hungerford Rural District Council on the International Synthetic
Rubber Co Ltd, occupiers of two hangars at Membury Airfield, near Newbury,
requiring the discontinuance of the hangars’ use for the storage of synthetic
rubber. The questions arose whether a condition of earlier planning permission,
requiring the removal of the hangars within a specified period, was one relating
fairly and reasonably to the permitted development; whether the use as a
‘repository’ fell within the Town and Country Planning (Use Classes) Order; and
whether the applicants, having sought planning permission, could now assert
that it was not needed.
Peter Boydell
QC and Robert Gray (instructed by Sharpe Pritchard & Co, agents for W J
Turner, Solicitors’ Department. Newbury District Council) for the council;
Christopher Symons (instructed by the Treasury Solicitor) for the Secretary of
State; David Widdicombe QC and Anthony Anderson (instructed by Herbert Smith
& Co) for International Synthetic Rubber Co Ltd, the second respondents.
Giving
judgment LORD DENNING MR said that after the war the area was gradually
restored to agricultural use, the runways were restored to fields, but the
hangars remained huge black structures of corrugated iron despoiling the
landscape. They were used until 1953 for food storage, and until 1959 by the
Home Office for housing self-propelled fire pumps and other vehicles.
When it became
known that the Crown was thinking of selling the airfield site and the hangars,
the pre-war owner, J G Gilbey, and his family trustees, were interested. Mr
Gilbey came to a provisional agreement with the Crown and sought planning
permission for the hangars, saying he wanted them for storing fertilisers and
corn. The planning authority on December 2 1959 granted permission for change
of use to allow for storage of agricultural products, subject to conditions (i)
that the buildings should be removed at the expiration of the period ending
December 31 1970, and (2) that no fertilisers should be stored in the buildings
which gave rise to offence through smell. The reason for the conditions was ‘to
safeguard the amenities of the area.’
After obtaining this permission the trustees bought the freehold of the
site from the Crown for £9,000, and granted the Crown a leaseback for 40 years
at £2 a year.
Soon
afterwards the International Synthetic Rubber Co Ltd applied for planning
permission to use the hangars ‘as warehouses for the storage of synthetic
rubber,’ and stated in a covering letter that they were prospective buyers from
the Air Ministry. On May 31 1962, before they bought the hangars, they were
given planning permission for the use of two hangars as warehouses, subject to
conditions (1) that the buildings should be removed at the expiration of the
period ending December 31 1972; (2) that the use should be confined to storage,
and no materials should be stored which gave rise to offence through smell. The
reasons for the conditions were (1) to accord with the planning authority’s
policy regarding industrial development in rural areas; (2) to safeguard
amenities of the area.
The rubber
company then purchased at an auction on July 26 1972 the 40-year lease for
£22,000, and thereafter for several years used the hangars for storing
synthetic rubber. In November 1970, realising that their permission would come
to an end in December 1972, they applied for an extension for 30 years.
Hungerford Rural District Council refused this on January 4 1971 on the grounds
that it conflicted with the county development plan, was in an area of
outstanding natural beauty, was very conspicuous from the adjoining highway,
and represented an ‘undesirable intrusion into the rural landscape to the
detriment of amenities.’
After December
1972 the rubber company continued to use the hangars in defiance of the
conditions. In November 1973 the council, after a good deal of grace, served
enforcement notices. There was a public inquiry, and the minister, in his
decision letter in July 1975, held that the condition was invalid, and the
planning permission itself void (as in Hall & Co Ltd v Shoreham-by-Sea
UDC [1964] 1 WLR 240) but the rubber company had an indefeasible right to
continue using the hangars because (section 87 of the Town and Country Planning
Act 1971) they started using them before 1963.
In circular
5/68, the ministry stated that a condition requiring the removal of an existing
building, whether on the application site or not, would be reasonable only if
the need for such removal sprang directly from the fact that a new building was
to be erected. This view was based on words of his Lordship in Pyx Granite
Co Ltd v Minister of Housing and Local Government [1958] QB 554
that, although planning authorities had very wide powers to impose such
conditions as they thought fit, those conditions must fairly and reasonably
relate to the permitted development. Those words had been approved by the House
of Lords in Fawcett Properties Ltd v Buckingham County Council
[1961] AC 636 and Mixnam’s Properties Ltd v Chertsey UDC [1965]
AC 735.
Section
30(1)(b) of the 1971 Act made it clear that where permission was granted
authorising ‘any building or works’ (eg by erecting a new building) it was legitimate
to enforce a condition for requiring the removal of such building or works. But
that provision did not extend, it was contended, to cases where the permission
was only for a change of use.
those hideous hangars removed was by section 51 or 52 of the 1971 Act. Section
51 procedure would be very costly, and any agreement made with the rubber
company under section 52 would not bind successors in title, though it was now
possible under section 126 of the Housing Act 1974.
His Lordship
thought the ministry had put too narrow a construction on his words in the Pyx
Granite case, and paid insufficient regard to the provisions of the
development plan or the generality of section 29(1). The development plan dealt
specifically with ‘the use of buildings on sites relinquished by government
departments,’ and (expanded a little) it plainly contemplated that war-time
buildings such as these should be removed in due course, but, pending removal,
permission could be given for some changed use such as storage. The development
plan was referred to in the auction sale particulars, and no doubt the rubber
company knew all about it when they applied for planning permission. A
condition specifying a period of ‘temporary use,’ and one requiring ‘removal’
at the end of that period, both related fairly and reasonably to the permitted
development, ie the temporary use.
The rubber
company’s second line of defence was that in 1962 they did not need to ask for
planning permission because the use fell within the Use Classes Order, Class X,
as ‘use as a wholesale warehouse or repository for any purpose.’ ‘Repository’ must be narrower in meaning than
‘warehouse.’ In G Percy Trentham Ltd
v Gloucestershire County Council [1966] 1 WLR 506 at p 512 his Lordship
had ventured to define it as ‘a place where goods are stored away, to be kept
for the sake of keeping them safe, as part of a storage business.’ In his Lordship’s view no one conversant with
the English language would dream of calling these hangars a ‘repository’ when
filled with fire pumps or synthetic rubber. Thus his Lordship rejected the
claim under the Use Classes Order.
Finally, could
the rubber company, having accepted the grant of planning permission in 1962,
now say they do not need planning permission at all? To his Lordship’s mind, he who took the
benefit must accept the burdens which went with it; see Halsall v Brizell
[1957] 1 Ch 169; E R Ives Investments Ltd v High [1967] 2 QB 379,
at p 394.
In 1962 the
rubber company must have thought it necessary to get planning permission before
they bought these hangars. They bought the land on the basis of permission
requiring the pulling down of the hangars at the end of 10 years, and realised
the condition was perfectly fair and reasonable. They then had two courses open
to them: to apply for planning permission, or to rely on any existing use
rights which might be attached to the site. They opted for the former and,
having made their bed, must lie on it.
LAWTON LJ,
agreeing, said that the company knew what the planning objectives were and
bought at the auction knowing what the condition was. There was no evidence
that the local planning authority, in imposing the condition, had had any
motive other than the attainment of their policy objectives. The condition was
a valid one, and the Secretary of State should have upheld the enforcement
notice. His Lordship agreed with the definition by Lord Denning of ‘repository’
in the Trentham case (supra). As a matter of ordinary modern
usage of the English language, he was sure that no literate person would say
that the use to which the Home Office had put the hangars in the 1950s was, or
that the company were now using them as, a repository.
BROWNE LJ also
gave a concurring judgment.
The appeal
was allowed. Leave to appeal to the House of Lords was given to the Secretary
of State for the Environment and others by the Appeal Committee of the House of
Lords on November 16.
