by Delyth Williams
In 1987 town and country planning law saw significant developments both in case law and by way of statutory instrument. While some of these developments may be of only a minor nature, they are significant from a practical viewpoint. This article analyses some of these changes, but it is to be noted that the volume of new case law on this subject is so large that reference to specialist journals is required in most instances.
Change of use, materiality and conditions
One of the key questions in the operation of the town and country planning system is whether what the client proposes to carry out or change on the land in question amounts to “development” within the meaning of section 22(1) of the Town and Country Planning Act 1971. In Somak Travel Ltd v Secretary of State for the Environment and London Borough of Brent [7] JPL 630 the four-storey premises in question were built in 1925, with the ground floor being used by the appellants as a shop. The appellants amalgamated the first two floors together with the ground floor and converted the first two floors into offices for the purpose of a travel agency. An enforcement notice was issued requiring the appellants to discontinue the use of the first and second floors for office purposes and to remove an internal staircase which they had installed. The planning inspector concluded that a material change of use had occurred and required the staircase to be removed. Stuart-Smith J held that the enforcement notice could validly require the staircase to be removed as it was part and parcel of the material change of use.
The question of whether a material change of use had taken place was considered in Lilo Blum v Secretary of State for the Environment and the London Borough of Richmond upon Thames [7] JPL 278. In this case the site in question had been used as a livery stable since 1950, and a riding school was introduced in 1980 and 1981. The enforcement notice alleged a material change of the use of the land to use as a riding school and livery stables without planning permission. When the appellant appealed the planning inspector dismissed the appeal. Simon Brown J held that the previous established use was solely that of a livery stable for the accommodation of privately owned horses and that the setting up of the riding school activity was correctly assessed by the inspector as amounting to a material change of use. Further, it was valid for a local planning authority to consider the environmental impact of the proposed development upon the visual amenities of the surrounding area.
In Thrasyvoulou v Secretary of State for the Environment [7] 2 EGLR 195; (1987) 284 EG 511 the local planning authority alleged a breach of planning control by the change of use from hotel to hostel for homeless families. The authority considered that in a primarily residential area (with a large number of hotels and boarding houses) a proliferation of hostels for homeless families was undesirable, but the appellant claimed that no change of use was involved and that a restriction in the class of guests accommodated was a derogation of permitted use. The local planning authority argued that properties predominantly used to accommodate homeless families were not properly described as “hotels” but as “hostels” which was a sui generis use. The planning inspector was of the opinion that the properties in question were being used as hostels. McCowan J held that it was impossible to say that the inspector had erred in law and he rejected a submission that the decision of a previous inspector in 1982 (which went the other way) rendered the matter res judicata. The learned judge was of the opinion that each inspector must exercise his own judgment in the discharge of his statutory duty and cannot be fettered by the decision of a previous inspector. It is to be noted that under the new Town and Country Planning (Use Classes) Order 1987 (SI 1987 no 764) a hotel and hostel are now in the same use class (namely C1). In the court of Appeal [1988] 10 EG 131 the effect of the 1982 decisions was presented in a different way and elaborated in relation to the doctrine of issue estoppel. The determination of the inspector in 1982 in regard to certain of the properties affected by the enforcement notices was that the use was that of a hotel. The circumstances in the cases in 1985 did not differ from those prevailing in 1982 and it was contended that the principle of issue estoppel applied and the inspector in 1985 should have quashed the notices. The Court of Appeal held that the principle of issue estoppel was applicable to appeal proceedings under section 88. It was also applicable to a section 36 appeal subject to certain conditions. The court allowed the appeal in relation to four properties to which the issue estoppel applied.
The question of whether a condition attached to a planning permission was unreasonable was considered in Bradford Metropolitan City Council v Secretary of State for the Environment [6] 1 EGLR 199; (1986) 278 EG 1473. In this case developers made application to the local planning authority to build 200 houses on a site 3 miles from the centre of Bradford. However, the local planning authority were concerned that the existing road was inadequate to cope with the likely increase in traffic and they wished to have the road widened. Negotiations took place between the developers and the local planning authority and as a result the developers submitted amended plans showing the widening of the roadway, and permission was granted subject to a condition requiring the widening of the roadway. The local planning authority claimed that the developers had agreed to carry out the road widening at their own expense, but the developers denied this. On appeal to the Secretary of State the condition was discharged as unlawful. The Court of Appeal held that in considering the validity of a condition attached to the grant of planning permission requiring the applicant to carry out works at his own expense, such as road widening, which were the responsibility of the planning authority, the true test was whether the conditions imposed were manifestly unreasonable.
In Newham London Borough v Secretary of State for the Environment (1986) 53 P&CR 98 a housing association applied for planning permission to convert seven two-storey houses into two flats each. At the local inquiry the local planning authority argued that if any of the appeals were to be allowed conditions relating to sound insulation should be imposed. The inspector rejected this contention, considering that sound insulation was not a planning matter. Webster J held that the inspector had erred in law in concluding that sound insulation in flat conversions was not a planning matter and that the inspector should have taken into account para 19 in Department of the Environment Circular 1/85 before reporting to the Secretary of State. Further, Webster J was of the opinion that it was common ground that a circular which comes into existence after an inquiry has been held but before a decision has been made and contains policy or advice relevant to a significant issue raised at the inquiry is a material consideration.
In Trusthouse Forte Hotels Ltd v Secretary of State for the Environment [6] 2 EGLR 185 the hotel group sought to quash the decision of the Secretary of State dismissing their appeal from a refusal of the local planning authority to grant planning permission to erect a hotel in green belt land north-east of Bristol. The applicants considered that the site in question was the prime site and that if they were not given the permission they sought the area would be deprived of the modern hotel development it needed, as no other site in the area could be successfully developed. The planning inspector concluded that the need for additional hotel facilities in the Bristol area was capable of being met otherwise and elsewhere than by the appellants’ proposed development. Simon Brown J held that as a matter of law it was open to a local planning authority to decide on the facts that an accepted need could and should be met elsewhere than on the appeal site without the need to identify alternative sites.
Effect of Government circulars
The operation of the discretion element in the town and country planning system is highlighted by the guidance given to local planning authorities in Department of the Environment and Welsh Office circulars. In E C Gransden & Co Ltd v Secretary of State for the Environment [6] 2 EGLR 265 the local planning authority refused outline planning permission for residential development in Rainham, Kent, in 1982 on the grounds that it was contrary to the housing policies of the structure plan. When the inspector’s decision on the first planning appeal was quashed, a second local inquiry was held. At the second local inquiry the inspector applied the policy set out in Department of the Environment Circular 22/80, which asks local planning authorities to identify specific sites providing a five-year supply of housing land in accordance with structure plan policies and, where the authority is approached by the housebuilding industry, to discuss with the industry whether that land is genuinely available for development. In applying Circular 22/80 the inspector found that there was no identified five-year supply of land available for housing, so that there was a presumption in favour of granting planning permission. The inspector, in computing the supply of land, did not take into account possible redevelopment at Chatham Naval Base, as there was at the time sufficient doubt about such a development. The inspector considered that there were sufficient clear planning objections to the residential development which outweighed the presumption together with the fact that a sufficient supply of land might become available at Chatham Dockyard outside the five-year period. The Court of Appeal held that in considering the advice in para 3 of Annexe A to Circular 22/80 and, in particular, whether there were clear planning objections which outweighed the presumption in favour of granting planning permission created by the absence of a five-year supply of building land it was permissible to take into account the fact that building land might become available outside the five-year period.
The interpretation of Circular 22/80 was also considered by McCowan J in J A Pye (Oxford) Estates Ltd v Secretary of State for the Environment and Wychavon District Council [7] JPL 363, where planning permission for the erection of houses at Bredon, Herefordshire, was refused in 1979 and the local planning authority’s decision was upheld on appeal. In the High Court Glidewell J (as he then was) [1982] JPL 575 quashed the inspector’s decision. The appellants then proceeded to make a fresh application for planning permission in 1984 which was refused and the inspector came to the same conclusion. In reaching his conclusion the inspector took into account plans that were in the course of preparation. The appellants appealed to the High Court, alleging that the inspector had failed correctly, or at all, to apply the policy in Circular 22/80. McCowan J held that the inspector had properly taken into account plans which were emerging and that the “clear planning objections” required by para 3 Annexe A did not have to be derived from the development plan but could be derived from an emerging plan or a non-statutory village plan.
In Surrey Heath Borough Council v Secretary of State for the Environment and Elliot Developments Ltd [7] JPL 199 the local planning authority refused planning permission in 1985 for the demolition of existing buildings and the erection of a three-storey office building. On appeal the inspector allowed the scheme primarily on the ground of the policy outlined in Department of the Environment Circular 14/85, namely to encourage development of a kind that might create jobs even though the proposed development was contrary to local policy in many significant respects. On appeal to the High Court, Kennedy J was of the opinion that the decision of the inspector had to be quashed because although nationally there was a need to promote economic activity the need was greater in some places than in others. However, a proper implementation of Circular 14/85 in relation to any individual planning application had to involve an evaluation of the local as well as the national need for economic regeneration; in this case local considerations prevailed. For a decision on the conflict between a policy in a local plan and the policy enunciated in a circular see also Waverley Borough Council v Secretary of State for the Environment and Clarke Homes (Southern) Ltd and Clarke Homes (South Eastern) Ltd [1987] JPL 202.
More recently, in Wycombe District Council v Secretary of State for the Environment and Queensgate Developments Ltd [8] JPL 111 Graham Eyre QC (sitting as a deputy judge) gave guidance that a consideration of policy matters was, prima facie, a matter for the determining authority (whether it be a local planning authority or the Secretary of State) and not for the court. However, the following points could be gleaned from the authorities:
(1) The policy being examined or being relied upon had to be a lawful policy related to proper planning considerations. (That point did not arise in this case.)
(2) If the policy related to development or land use or other proper planning consideration, regard had to be had to it by the determining authority, whether the planning authority or the Secretary of State.
(3) The determining authority had correctly to interpret and understand the nature and content of the policy.
(4) Whether the policy was contained in a development plan or elsewhere, such as Government circulars, provided proper regard had been had to it, there was no requirement that it should be slavishly followed.
(5) Assessing the relevance and weight to be accorded to the policy as against the relevance and weight to be attached to other material considerations was a matter for the determining authority in a particular case and the determining authority alone.
(6) If the determining authority, and in particular the Secretary of State in his appellate capacity, departed from the policy contained in the development plan in a particular case, he had to set out his reasons for so doing, and such reasons had to be sound, clear cut and intelligible.
(7) Nevertheless, the reasons could be briefly stated. That was clear from the case of Edwin H Bradley & Sons Ltd v Secretary of State for the Environment [2] EGD 1280; (1982) 264 EG 926.
(8) There could be no challenge of the reasons for departing from a policy or treating a particular case as an exception to the policy unless in that particular case they were substantially wrong or irrelevant. (The matters referred to at (6), (7) and (8) were expressly approved by the House of Lords in Westminster City Council v Great Portland Estates plc [5] AC 661.)
Several very interesting issues were raised in ELS Wholesale (Wolverhampton) Ltd and Crownbrae Ltd v Secretary of State for the Environment and Cheltenham Borough Council [7] JPL 844, where the appellants opened a business as a retail shop for furniture, carpets and furnishings. The local planning authority served enforcement and stop notices and the notice required the discontinuance of the land and premises as a retail shop with ancillary storage because the use was not in accord with the council’s policy on shopping and industry and conflicted with a local plan. The appellants’ appeal was dismissed and they appealed to the High Court under section 246 of the 1971 Act. The Divisional Court (May LJ and Macpherson J) held that appeals could only be brought on points of law under section 246 and that a contention that an inspector at a planning inquiry gave undue weight to a material consideration did not raise a question of law for this purpose. May LJ stressed the distinction to be drawn in the planning system between circulars and statutory instruments and stated that circulars indicate from time to time the approach to be adopted in general terms to applications and what, similarly, may be more or less important material considerations. Further, the court was of the opinion that circulars need to be read as a whole. Finally, the decision letter of an inspector had to be read in a broad sense and not scrutinised for the minutiae of language.
In South Staffordshire District Council v Secretary of State for the Environment and Bickford [7] JPL 635 the main building on a 7-acre site had been used for the storage of various articles since 1957 and this use continued until 1976. In 1978 the site was resold to B, who commenced to carry on business as commercial vehicle dealers, hirers and repairers. In 1980 the local planning authority served an enforcement notice relating to the 7-acre site alleging a material change of use to warehousing, including the storage of timber and joinery products. An inspector upheld the notice in 1980 but varied it so as to require only the discontinuance of the use of the open land. In 1981 planning permission was granted to refurbish and extend the existing warehouse. A very complex history of the site followed and subsequent enforcement notice and planning appeals turned on whether the changes and conditions attached to earlier planning permissions had brought the established use rights to an end. The Divisional Court (Glidewell LJ and Schiemann J) held that the erection of a building authorised by planning permission on part of a site does not terminate established user rights on the rest of the site unless the development which takes place is inconsistent with the established use. Further, where an enforcement notice prohibits a particular use of land this precludes reopening the question of whether it is established provided the use is covered by the notice. The court was also of the opinion that the term “new chapter in the planning history” was to be preferred to the term “new planning unit”.
The loss of existing use rights because of a failure to appeal in time against an enforcement notice was considered in Nash v Secretary of State for the Environment and Epping Forest District Council (1985) 52 P&CR 261. In this case the appellant was the owner of land which he had used for a haulage business and on which he had for some years parked lorries. When the local planning authority served an enforcement notice requiring that the land be returned to agricultural use the appellant did not appeal and was prosecuted for failure to comply with the terms of the notice. The appellant sought to quash the inspector’s decision on the ground that in failing to make a finding as to existing use rights the inspector had failed to take into account the personal hardship caused by the loss of existing use rights. The Court of Appeal held that it was clear that the inspector had taken into account the issue of personal hardship.
The question of whether an enforcement notice could extinguish existing use rights was considered by David Widdicombe QC (sitting as a deputy judge) in John Pearcy Transport Ltd v Secretary of State for the Environment (1986) 53 P&CR 91, where the appellants owned the site in question which had been occupied by persons connected with haulage contracting since 1941 and the administration of such businesses had been undertaken from the site since 1956. Between 1969 and 1980 the use of the site for the purposes of haulage business had increased and a larger hardstanding had been laid out over what was previously a garden and orchard. An application for an established use certificate for the use of the site for the business of haulage contracting was refused in 1980. The site was subsequently sold to the appellants (at a residential use price). The local planning authority served enforcement notices requiring the use of land for haulage purposes to be discontinued. The Secretary of State dismissed the appellants’ appeal, holding that a change of use had taken place in 1969 and that the haulage use had continued uninterrupted since 1941. The High Court held that the enforcement notice had gone too far in attempting to extinguish the existing use rights as the inspector should have applied the rule in Mansi v Elstree RDC (1964) 16 P&CR 153. Further, the applicants could raise in court a point not raised at the inquiry.
The question in Bristol City Council v Secretary of State for the Environment and Williamson [7] JPL 718 was whether the Secretary of State, on an appeal to him, had the power to grant an established use certificate for a lesser use than that described in the application. In this case the Secretary of State refused to grant an established use certificate to the effect that the premises had been used in multiple occupation housing seven households with nine occupiers. However, the Secretary of State did grant, on the evidence, an established use certificate for multiple occupation for six households with six occupiers. Stuart-Smith J held that the Secretary of State was entitled to grant a certificate for a lesser use than that in the application.
In Harrogate Borough Council v Secretary of State for the Environment and Procter [7] JPL 288 an enforcement notice was served which alleged the making of a material change of use by using the premises for the “storage sale and distribution of furniture and secondhand goods and of two containers”. In his decision letter on the appeal the inspector described the two containers as van bodies used for the storage of furniture and other goods and these had been placed on the site less than four years prior to the service of the enforcement notice. The inspector decided that he could correct the grammatical errors in the notice without prejudice to the parties. With these variations the inspector upheld the enforcement notice and refused to grant planning permission. The local planning authority appealed solely on the ground that the alterations made to the enforcement notice were variations not corrections and that the words “within the period of four years before the date of issue of this notice” should have been added in order to make the revised enforcement notice valid. Webster J held that it did not matter whether the alteration was called a correction or a variation and that, further, there was no need to add the requested words as the notice was valid as amended. (For another interesting case on the construction of an enforcement notice see Dudley Bowers Amusements Enterprises Ltd v Secretary of State for the Environment [1986] 1 EGLR 196; (1986) 278 EG 313.)
The question in R v Secretary of State for the Environment and Bromley LBC, ex parte Jackson [7] JPL 790 was whether the time-limits for making an enforcement appeal to the Secretary of State were strict. In this case the appeal documents were lost in the post and were not despatched via the methods (of recorded or registered delivery post) recommended in section 283 of the Town and Country Planning Act 1971. Macpherson J held that, following the case of Lenlyn Ltd v Secretary of State for the Environment [1985] JPL 482, the time-limits were strict and the time for appealing having lapsed the enforcement notice was effective.
Finally under this heading, two other enforcement related cases are worthy of note. In Newbury District Council v Secretary of State for the Environment and Rawlings [8] JPL 185 Kennedy J held that if an enforcement appeal is upheld and the matter is remitted to the Secretary of State for reconsideration the whole of the planning decision is reopened for reconsideration. The challenging of an enforcement notice was considered in R v Keeys, The Independent June 22 1987. In this case the Court of Appeal (Criminal Division) held that when a defendant is charged with using land in contravention of an enforcement notice he cannot argue, as a defence, that he was not using the land in the way alleged because he could thereby retrospectively challenge the validity of the notice in contravention of section 243 of the 1971 Act.
Miscellaneous matters
In Richards v Cresswell, The Times April 24 1987 a letter was sent to a planning inspector in connection with an appeal against an enforcement notice. The letter contained statements and remarks which were alleged to be defamatory. Turner J held that such a letter was not subject to absolute privilege for the purposes of the law of defamation as a planning inquiry was of an administrative, and not judicial, nature and the letter was not a document in the nature of a pleading, nor evidence, nor sufficiently closely connected to the giving of evidence before a judicial tribunal.
The question of whether the objectors had been treated with fairness was considered by Otton J in R v Great Yarmouth BC ex parte Botton Brothers Arcades Ltd [8] JPL 18. The facts of this case were complex but may be summarised as follows. The applicants were traders who owned amusement arcades and they applied for judicial review to quash two grants of planning permission for amusement arcades. A non-statutory plan identified a presumption in favour of granting planning permission for commercial entertainment, but the local planning authority had, since 1984, refused to grant planning permission for additional amusement arcades on the ground of proliferation. At the first stage the applicants for judicial review did not know of the planning permission applications, and when they did learn of them they did not object in view of the local planning authority’s previously declared policy. Otton J held that there was a duty on the local planning authority to act fairly and that fairness required that the objectors had an opportunity to make representations in the context of the special circumstances.
Statutory instruments
The following is a non-exhaustive list of the statutory instruments introducing the main changes to the planning system in 1987:
(a) Town and Country Planning (Listed Buildings and Buildings in Conservation Areas) Regulations 1987 (SI 1987 no 349).
(b) Town and Country Planning (Appeals) (Written Representations Procedure) Regulations 1987 (SI 1987 no 701).
(c) Town and Country Planning General Development (Amendment) Order 1987 (SI 1987 no 702).
(d) Town and Country Planning (Use Classes) Order 1987 (SI 1987 no 764).
(e) Town and Country Planning General Development (Amendment) (No 2) Order 1987 (SI 1987 no 765).
(f) Town and Country Planning (Control of Advertisements) (Amendment) Regulations 1987 (SI 1987 no 804).
(g) Town and Country Planning (Simplified Planning Zones) Regulations 1987. (SI 1987 No 1750).>