Town and Country Planning Act 1971–Enforcement notice alleged storage and dismantling of scrap motor vehicles without permission–Contention by appellants that use complained of had begun before the end of 1963 and was therefore immune from enforcement action under section 87 of the Act–Appellants had failed to satisfy onus of proof as to commencement of use–No misdirection by Secretary of State–Appeal dismissed
This was an
appeal under section 246 of the Town and Country Planning Act 1971 by Richard,
Norman and John Stanton in respect of an enforcement notice served upon them by
Gateshead Metropolitan Borough Council in respect of an alleged breach of
planning control on land at Middle Hedgefield Farm, Ryton, Tyne and Wear. They
contended that the Secretary of State should have amended the notice to take
account of the existing user prior to December 31 1963.
George Dobry
QC and J Furber (instructed by Malcolm Collis & Sumption, agents for
Patterson Wolf & Co, of Ryton) appeared for the appellants; Patrick Ground
(instructed by the solicitor to Gateshead Metropolitan Borough Council)
represented the council (second respondent); the Secretary of State for the
Environment (first respondent) was not represented.
Giving
judgment, WATKINS J said that the appellants moved for an order that a decision
of the Secretary of State dated
of State with the court’s opinion as to the determination of the issues before
him. The enforcement notice alleged a breach of planning control by the making
of a material change of use of the land by using it for the purpose of storing
and dismantling of scrap motor vehicles after the end of 1963 without planning
permission. The requirements were (1) discontinuance of such use (2) removal of
all scrap materials and vehicle parts resulting from such use. The period laid
down for compliance was two months.
For some years
up to 1965 the land formed part of some 80 acres owned by the National Coal
Board and leased to the grandfather of the appellants (who were brothers). He
grew crops and grazed cattle on it. In about 1958 Norman, one of the
appellants, started a firewood business. It also seemed to have been contended
by him and others that in addition he began to collect a certain amount of
scrap metal, gather it on the land and sell it.
The
grandfather died in 1965, and two years later the appellants bought the
freehold of the land. In 1968 they sought planning permission to convert the
farmyard and outbuildings and nearby land into a scrap-metal yard. This was
refused. In May 1975 they sought an established use certificate in respect of
the firewood and scrap-metal business under section 94(1)(a) of the Town and
Country Planning Act 1971. That was refused, and they appealed to the Secretary
of State under section 95. On August 1 of the same year the enforcement notice
was served, and from that they also appealed to the Secretary of State under
section 88(1)(d) on the ground that the breach of planning control occurred
before the beginning of 1964.
The Secretary
of State supported the findings and conclusion of his inspector (1) that the
appellants had not discharged the onus of proof that the alleged use had been
carried on before the beginning of 1964 and (2) that it was unlikely to have
commenced on a commercial scale until some time after May 1965. The Secretary
of State also decided that the deemed application for planning permission under
section 88(7) of the 1971 Act should not be granted. He accepted the
inspector’s conclusion that the steps required by the enforcement notice did
not exceed what was necessary to remedy the breach of planning control, and
that the period allowed for compliance was reasonable.
It was now
contended that those steps went beyond what was necessary and that the
Secretary of State had misdirected himself in not amending the notice so as to
take account of the extent to which the activities forbidden by the notice had
taken place before December 31 1963. But what the Secretary of State appeared
to be saying was that the appellants had utterly failed to discharge the onus
of proof on them and, whatever might have been the circumstances prior to the
end of 1963, nothing of significance in relation to scrap metal was going on
then which disabled him from coming to the conclusion that he could safely
ignore it.
It seemed that
the Secretary of State had considered all the matters which were relevant for
him to consider, including of course, the law, and the obligation imposed on
him by section 88, and his Lordship saw no reason to say that the Secretary of
State had erred in law.
His Lordship
would dismiss the appeal.
LORD WIDGERY CJ
and TALBOT J agreed.
