Town and Country Planning Act 1971–Effect of subsequent material change of use on existing planning permission–Resumption of previous use–Whether original planning permission was spent when material change of use was implemented or whether it was capable of further application–Whether section 23(8) of 1971 Act applied–Meaning of ‘Subject to limitations’ in section 23(8)–Appeal from decision of Mr David Widdicombe QC, sitting as a deputy judge of the High Court–In this case planning permission had been granted and implemented in 1958 for use of premises as a fish-and-chip shop–In 1978 premises were acquired for use as a hot food take-away (which was within the same use), but owing to her ill-health at the time the premises had to be let temporarily by the new owner to persons carrying on the business of an antique shop, for which planning permission was given by the 1977 General Development Order–The owner recovered but was told that resumption of the hot take-away use required a new planning permission, and this was refused for amenity reasons–Owner appealed and inspector allowed her appeal on two grounds, (1) a resumption of the take-away food business was permitted by section 23(8), and (2) the original 1958 permission was not spent but could still be activated–Planning authority applied to High Court to quash this decision, but deputy judge dismissed appeal–Although disagreeing with inspector on the section 23(8) ground, he upheld the decision on the basis of the continued efficacy of the 1958 permission–Planning authority appealed to the Court of Appeal and the Secretary of State by a respondent’s notice renewed the issue as to the effect of section 23(8)–Court of Appeal held that the change back from use as an antique shop to use as a hot food take-away required planning permission; that such permission was not given by the General Development Order; and that reliance could not be placed on the continued force of the 1958 permission, which was spent once the initial change of use took place–The court, however, held, on the section 23(8) point, that the permission given by the General Development Order for the change of use from fish-and-chip shop to antique shop was ‘subject to limitations’, so that section 23(8) applied and the change back to a hot food take-away did not require fresh permission–On this narrow ground the appeal was dismissed–A number of authorities are cited in the judgment of the court, including Young v Secretary of State for the Environment
The following cases are referred to in this report.
Ellis v Worcestershire County Council (1961) 12 P &CR 178; [1961] RVR 652; [1961] EGD 142; 178 EG 103, LT
Garland v Minister of Housing and Local Government (1968) 20 P&CR 93; 67 LGR 77, CA
Newbury District Council v Secretary of State for the Environment [1981] AC 578; [1980] 2 WLR 379; [1980] 1 All ER 731; (1980) 78 LGR 306; 40 P&CR 148, HL
Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527; [1974] 1 All ER 283; (1973) 26 P&CR 508; 72 LGR 303; [1974] EGD 787; 230 EG 1737, DC
Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132; [1984] 3 WLR 32; [1984] 2 All ER 358; (1984) 48 P&CR 95; [1984] EGD 1094; 272 EG 425, [1984] 2 EGLR 183, HL
Rochdale Metropolitan Borough Council v Simmonds (1980) 40 P&CR 432; 256 EG 607, [1980] 2 EGLR 148; [1981] JPL 191, DC
Young v Secretary of State for the Environment (1983) 81 LGR 389; [1983] JPL 465, CA
This was an appeal by the planning authority, Cynon Valley Borough Council, from the decision of Mr David Widdicombe QC, sitting as a deputy High Court judge, dismissing an application by the authority to quash the decision of an inspector appointed by the Secretary of State for Wales. The inspector had determined an appeal against the authority’s refusal of planning permission in favour of Mrs Oi Mee Lam in relation to shop premises at 38 Glancynon Terrace, Abercynon.
Andrew Kelly (instructed by N Stonelake, solicitor to Cynon Valley Borough Council) appeared on behalf of the appellant council; John Laws (instructed by the Treasury Solicitor) represented the first respondent, the Secretary of State; the second respondent, Mrs Oi Mee Lam, was not represented and took no part in the proceedings.
Giving the judgment of the court, BALCOMBE LJ said: No 38 Glancynon Terrace, Abercynon, is an end-of-terrace shop with residential accommodation above. In 1958 planning permission was granted for use of the premises as a fish-and-chip shop and this permission was implemented. In January 1978 the premises were acquired as a going concern by Mrs Oi Mee Lam, who intended to carry on the business. Owing to ill-health she was unable to carry out that intention at the time, and accordingly she let the premises on a temporary basis to a Mr and Mrs Evans, who there carried on the business of an antique shop. However, it remained Mrs Lam’s intention to use the premises for the sale of hot take-away foods as soon as she was able to do so. In March 1983 Mrs Lam, having regained her health, recovered possession of the premises. She was unable to recommence the business as she was informed that a fresh planning permission was required for the proposed use. She applied to the Cynon Valley Borough Council for permission, which was refused generally on amenity grounds in May 1983. From that refusal she appealed to the Secretary of State for Wales, who appointed an inspector to determine the appeal.
By his decision letter of July 9 1984 the inspector held that no development requiring planning permission was involved. He arrived at this decision for two reasons: first, because resumption of the fish-and-chip use (which it was and is agreed includes use as a Chinese take-away) was permitted by section 23(8) of the Town and Country Planning Act 1971, and second, in the alternative, because the change of use to an antique shop did not mean that the premises had lost the benefit of the 1958 planning permission for fish-and-chip use.
The Cynon Valley Borough Council then applied to the High Court under section 245 of the 1971 Act for an order to quash the decision of the inspector. To that application the Secretary of State for Wales and Mrs Lam were respondents. Mrs Lam has, however, taken no further part in the proceedings. That application came before Mr David Widdicombe QC, sitting as a deputy judge of the High Court. On July 22 1985 the learned deputy judge, in a full and careful judgment, disagreed with the inspector’s conclusion on section 23(8) but upheld his decision on his second ground and dismissed the application.
From that decision the local authority has appealed and at the hearing we gave leave to the Secretary of State to put in a respondent’s notice out of time so as to renew the section 23(8) argument.
The approach to be adopted by the courts in considering such questions as arise in this case was stated by Lord Scarman in the course of his speech in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132 at p 140H*:
Planning control is the creature of statute. It is an imposition in the public interest of restrictions upon private rights of ownership of land. The public character of the law relating to planning control has been recognised by the House in Newbury District Council v Secretary of State for the Environment [1981] AC 578. It is a field of law in which the courts should not introduce principles or rules derived from private law unless it be expressly authorised by Parliament or necessary in order to give effect to the purpose of the legislation. The planning law, though a comprehensive code imposed in the public interest, is, of course, based on the land law. Where the code is silent or ambiguous, resort to the principles of the private law (especially property and contract law) may be necessary so that the courts may resolve difficulties by application of common law or equitable principles. But such cases will be exceptional. And, if the statute law covers the situation, it will be an |page:192| impermissible exercise of the judicial function to go beyond the statutory provision by applying such principles merely because they may appear to achieve a fairer solution to the problem being considered. As ever in the field of statute law it is the duty of the courts to give effect to the intention of Parliament as evinced by the statute, or statutory code, considered as a whole.
*Editor’s note: Also reported at (1984) 272 EG 425 at p 426., [1984] 2 EGLR 183
With that approach in mind we turn to consider the relevant provisions of the 1971 Act.
Section 22(1) defines ‘development’ as including ‘the making of any material change in the use of any buildings or other land.’
Section 23(1) provides: ‘Subject to the provisions of this section, planning permission is required for the carrying out of any development of land.’
The remaining subsections of section 23 are concerned with a number of specific cases where planning permission is not required, notwithstanding that there may be a material change in the use of land.
Section 23(5) provides:
Where planning permission to develop land has been granted for a limited period, planning permission is not required for the resumption, at the end of that period, of the use of the land for the purpose for which it was normally used before the permission was granted.
Section 23(8) provides:
Where by a development order planning permission to develop land has been granted subject to limitations, planning permission is not required for the use of that land which (apart from its use in accordance with that permission) is the normal use of that land, unless the last-mentioned use was begun in contravention of the provisions of this Part of this Act or in contravention of previous planning control.
Section 23(9) provides:
Where an enforcement notice has been served in respect of any development of land, planning permission is not required for the use of that land for the purpose for which (in accordance with the provisions of this Part of this Act) it could lawfully have been used if that development had not been carried out.
Section 24(1) empowers the Secretary of State to provide for the granting of planning permission by development order.
Section 24(4) provides:
Planning permission granted by a development order may be granted either unconditionally or subject to such conditions or limitations as may be specified in the order.
Section 33(1) provides:
. . . any grant of planning permission to develop land shall (except in so far as the permission otherwise provides) enure for the benefit of the land and of all persons for the time being interested therein.
Section 51(1) empowers a local planning authority to require the discontinuance of any use of land, but subject to the payment of compensation and to confirmation by the Secretary of State.
Pursuant to section 24(1) of the 1971 Act the Secretary of State has made the Town and Country Planning General Development Order 1977. Article 3(1) of that order provides that development of any class specified in Schedule 1 to the order is permitted by the order and may be undertaken without the permission of the local planning authority or of the Secretary of State, subject to a proviso that the permission granted by the order in respect of any such class of development ‘shall be defined by any limitation and be subject to any condition imposed in the said Schedule 1 in relation to that class.’ Schedule 1 to that order is prefaced by the following introductory words:
The following development is permitted under article 3 of this order subject to the limitations contained in the description of that development in column (1) and subject to the conditions set out opposite that description in column (2).
The body of Schedule 1 then contains two columns, column (1) headed ‘Description of Development’ and column (2) headed ‘Conditions’. In column (1), under the heading ‘Class III. — Changes of use’, there appears:
Development consisting of a change of use:- . . . to use as a shop for any purposes including in Class I referred to in the Schedule to the Use Classes Order from use as:- (i) a shop for the sale of hot food.
There are no conditions set out opposite that description in column (2). (We have set out the relevant part of Schedule 1 in its original form: Class III was amended in 1981, but not in any material respect.) Finally, Class I of the Schedule to the Town and Country Planning (Use Classes) Order 1972 is in the following terms: ‘Use as a shop for any purpose except (i) a shop for the sale of hot food’ and other specified exceptions (which exceptions do not include use as an antique shop).
Finally, before considering the effect of these provisions in the circumstances of the present case, we should mention that the effect of the decision in the House of Lords in the Pioneer Aggregates case was that a valid planning permission capable of implementation according to its terms cannot be abandoned.
On the application of these provisions, and that decision, to the facts of the present case, in our judgment:
(1) The change of use of the premises from fish-and-chip shop to antique shop was a material change of use which constituted development. Planning permission was required, but was granted by article 3(1) of the 1977 General Development Order.
(2) The change of use of the premises from antique shop to fish-and-chip shop and Chinese take-away will involve a material change of use which will constitute development. On this point we disagree with both the inspector and the learned deputy judge. The inspector, in para 11 of his decision letter, said: ‘In my view the recommencement of the fish-and-chip shop use does not amount to development within the meaning of section 22 of the Act of 1971’, and this view was approved by the judge at p 23 of the transcript of his judgment.
(3) The change back from antique shop to fish-and-chip shop (and Chinese take-away) is not within the development permitted by the 1977 Order.
The short, but by no means easy, point in this part of this appeal is whether the change back from antique shop to fish-and-chip shop (and Chinese take-away) is development to which the 1958 planning permission applies. Since the 1958 planning permission cannot have been abandoned (see Pioneer Aggregates (supra)) the question is whether it was fully implemented, or ‘spent’, once the initial change of use took place in 1958 or thereabouts. Mr Kelly for the local authority submits that it was: Mr Laws for the Secretary of State submits that it was not.
Mr Kelly’s argument can be conveniently summarised under three heads: (1) the provisions of the 1971 Act; (2) the authorities; and (3) the practical consequences of a decision in a sense contrary to that for which he contends.
(1) The provisions of the 1971 Act. Mr Kelly submits that the scheme of sections 22 and 23 of the Act requires the grant of planning permission for a particular development. Where that development is a change of use from use A to use B, the use from which the change takes place is just as important as the new use, so that once the particular change of use has occurred that development is complete and that planning permission is spent. He points in particular to subsections (5) and (8) of section 23 and asks rhetorically, ‘What purpose can these subsections serve if a planning permission subsists notwithstanding an intermediate change of use?’ He anticipates an argument based on section 33(1) by pointing out that the subsection is needed to meet the case of a change in ownership or occupation of the land before a planning permission has been implemented.
(2) The authorities. The strongest authority in support of Mr Kelly’s submission is a passage from the judgment of the Court of Appeal given by Watkins LJ in Young v Secretary of State for the Environment (1983) 81 LGR 389 at p 397:
There is ample and powerful authority for the proposition . . . that, when land ceases to be used for a lawful purpose for a period of time, it is a question of fact whether the right to use the land for that purpose has been abandoned so that resumption of that use amounts to development requiring planning permission . . . There is
no authority
to which we were referred or we have been able to find that allows of the application of the concept of abandonment to a situation in which without interruption one use follows another. The use of the word abandonment in such a circumstance is inappropriate and potentially misleading. The position which has then arisen is simply that the later use, whether unlawful or rendered lawful by reason of the operation of article 3 of the General Development Order 1977, has in fact supplanted the former which cannot be revived without an operation of law, for example section 23(9), or the grant of planning permission. A lawful use becomes attached to the land; it enures for the benefit of it: see section 33(1) of the Act. It remains, contrary to the submissions of counsel for the appellant, attached to that land only so long as it is not supplanted by the introduction of another use or is detached by some other process such as abandonment following interruption of use.
Mr Kelly inevitably relies strongly on the passages we have emphasised, which undoubtedly appear to support his submission.
(3) The practical consequences. Mr Kelly stresses the practical difficulties which a local planning authority may face if a planning permission, not currently being implemented, may be lying dormant capable of subsequent revival. Good planning considerations may|page:193| require a limit to the number of premises used in a particular manner within a given area. If a planning permission for this type of user, once given, remains indefinitely valid, notwithstanding that the premises may for many years have been used for a different purpose, less harmful to the amenities of the area, it can have the effect of an unexploded bomb, liable to go off at any time when the owner of the premises chooses to revert to the user for which permission has once been given. How, then, can the local planning authority safely grant any further similar permissions, notwithstanding that, so long as the original permission is still not being implemented, there may be a legitimate demand for other premises of this type? We find this a powerful argument.
Mr Laws counters these arguments seriatim.
(1) He submits that if Mr Kelly’s construction of sections 22 and 23 is correct, then it must follow that any use in accordance with the planning permission, for however short a period it may last — even if only momentary — will exhaust that permission. Not only would that be a surprising result, but it would be inconsistent with the provisions of section 33(1) that a planning permission enures for the benefit of land. He distinguishes between an operational planning permission and a user planning permission. An operational permission, eg for building operations, will be fully implemented, or spent, once the operations for which permission was granted are complete. A user permission can never become spent, although it may be extinguished under section 51. On his construction of the Act, subsections (5) and (8) of section 23 are capable of serving a useful purpose where the ‘normal use’ of the land means the existing use of the land on the appointed day (July 1 1948) and not use for which planning permission has subsequently been expressly granted. Such a construction would be consistent with the whole tenor of section 23, which is a re-enactment of section 13 of the Town and Country Planning Act 1962, introduced at a time when ‘the appointed day’ was within the recent past.
(2) He submits that we should not follow the passage cited from the judgment of the Court of Appeal in Young v Secretary of State for the Environment (supra) for the following reasons:
(i) Although the passage is, in terms, wide enough to refer to the supplantation of a use for which express planning permission has been granted by the introduction of another use, there never had in that case been an express grant of planning permission. If and in so far as the court intended to refer to the supplantation of a use for which express planning permission had been granted, the passage is obiter.
(ii) Although the decision of the Court of Appeal in Young was affirmed by the House of Lords ([1983] 2 AC 662) it was on the narrow basis of the construction of section 23(9) of the 1971 Act and did not involve an endorsement of the wide proposition in the passage cited from the judgment of the Court of Appeal.
(iii) That passage is inconsistent with the reasons of Lord Scarman in the Pioneer Aggregates case, reasons with which all their lordships agreed. In the course of his speech, which was concerned with the question of the extinguishment of a planning permission by abandonment, Lord Scarman said (at [1985] AC 132 pp 143 et seq):*
Three classes of case can be identified. The first is concerned not with planning permission but with existing use . . .
The second class of case has been described as that of the ‘new planning unit’ . . . the cases are, without exception, cases where existing use rights were lost by reason of a new development sanctioned by a planning permission. There is no case, so far as I am aware, in which a previous planning permission has been lost by reason of subsequent development save in circumstances giving rise to the third class of case, which I shall discuss in a moment.
(our italics).
The third class of case . . . These cases are concerned . . . with two planning permissions in respect of the same land. It is, of course, trite law that any number of planning permissions can validly co-exist for the development of the same land, even though they may be mutually inconsistent. In this respect planning permission reveals its true nature — a permission that certain rights of ownership may be exercised but not a requirement that they must be.
But, what happens where there are mutually inconsistent permissions (as there may well be) and one of them is taken up and developed? The answer is not to be found in the legislation.
*Editor’s note: (1984) 272 EG at p 428.
Lord Scarman then discusses the cases of Ellis v Worcestershire County Council (1961) 12 P & CR 178 and Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527 and approves the decision of the Divisional Court in Pilkington that the implementation of one of two mutually inconsistent planning permissions renders the development authorised by the other permission incapable of implementation. (It is to be noted that the examples considered in Lord Scarman’s third class of case were all operational permissions.) However, there is nothing in this third class of case to qualify the application of Lord Scarman’s general statement, cited above, in its application to user planning permissions.
(3) The practical consequences of which Mr Kelly is so fearful can be met, when necessary, by the use of section 51.
We have come to the conclusion that Mr Kelly’s submissions are to be preferred to those of Mr Laws. In particular we accept Mr Kelly’s submission that where the development for which planning permission is required is a material change of use, the permission is to change from use A to use B, and is not merely a permission to use the property for use B for the indefinite future. We appreciate that most, if not all, planning permissions are expressed in the latter form, but that is no guide to the true construction of the 1971 Act.
More relevant is the fact that permission for a change of use granted by article 3 of the General Development Order of 1977 is, under Class III in Schedule 1 to that order, in every case permission to change from use A to use B. The definition of planning permission in section 290(1) of the 1971 Act is permission under Part III of the Act and draws no distinction between a particular permission and a general permission under the 1977 order.
But in the end we are persuaded that a careful consideration of the decision of the House of Lords in Young v Secretary of State for the Environment (supra) does indeed involve an endorsement of the passage cited from the judgment of the Court of Appeal in that case.
The facts in Young‘s case were complex. From 1912 until 1969 premises were used as a laundry which was a use as a general industrial building within Class IV of the Schedule to the Town and Country Planning (Use Classes) Order 1972. In 1969 there was a change of use to use for food processing, which was use as a light industrial building within Class III of the order of 1972, a permitted change by virtue of article 3(1) of the Town and Country Planning General Development Order 1977, and Schedule 1, Class III, and therefore a lawful use. In 1970 the premises reverted to use as a laundry, but that change was not lawful as planning permission had not been obtained for it. Since 1977 the premises had been used by the present owner for his business as an insulating contractor, mainly for storing and processing materials and that light industrial use of the premises was itself unlawful because the immediate preceding use as a laundry required planning permission. In February 1980 the local planning authority served an enforcement notice on the owner alleging that the use for carrying on the business of an insulating contractor was a material change of use without planning permission and requiring its discontinuance.
On these facts the owner contended that, by virtue of section 23(9) of the 1971 Act, it was permissible to revert to using the premises for light industrial use and that therefore the enforcement notice was ineffective. The leading speech was given by Lord Fraser of Tullybelton, with whose conclusions all their lordships agreed. He dealt with the whole appeal as a question of the construction of section 23(9). He pointed out (at p 668H) that the change in 1969 of the use of the premises from use as a laundry to use for food processing (ie as a light industrial building) was a change for which planning permission was given by article 3 of the 1977 General Development Order. The subsequent changes of use, in 1970 to use as a laundry (general industrial) and in 1977 to storage and processing (light industrial), were not lawful because they required planning permission (see in particular at p 669 C to D). There is implicit in this reasoning a conclusion that the planning permission granted in 1969 for use as a light industrial building was spent once the change was complete and did not cover the further change to light industrial use in 1977. The rest of Lord Fraser’s speech dealing with the construction of section 23(9) follows on that implied assumption: indeed, there would have been no point in considering the effect of section 23(9) if the 1977 development — change from general industrial user (laundry) to light industrial (storage etc) — was already covered by the 1969 permission.
As we have already said, the Act does not draw any distinction between a specific planning permission and a permission granted by the General Development Order. Accordingly it seems to us that the decision in Young’s case is conclusive of the point before us.
We appreciate that this involves giving a restricted construction to|page:194| section 33(1) as well as making a significant qualification to Lord Scarman’s classification in the Pioneer Aggregates case, but this seems to us inescapable from the decision in Young, and we are encouraged in reaching this conclusion that it follows the express finding of the Court of Appeal in Young‘s case.
It follows that on this point we disagree with the conclusions of the inspector and the learned deputy judge and, had this been the only point in the case, we would have allowed this appeal.
So we now turn to deal with the section 23(8) point.
This point turns on the question whether the permission for the change of user from fish-and-chip shop granted by article 3 of the 1977 General Development Order was ‘subject to limitations’. If it was, then section 23(8) applies and the change back to fish-and-chip shop does not require fresh planning permission; if it was not, then section 23(8) does not apply and fresh planning permission is required.
The provisions to which we have already referred make it clear that any limitations (as opposed to conditions) subject to which a development is permitted under article 3 of the 1977 order will be contained in the description of the development in column (1) of Schedule 1 to that order. That appears not only from the introductory words to the Schedule itself but also from various references in the body of the Schedule, eg Class 1, para 1, proviso (e) and Class IV, para 2, proviso. In the instant case, what was permitted by article 3 of the 1977 order was a change of use from a fish-and-chip shop to use as a shop for any purpose except as a shop for the sale of hot food and certain other specified purposes. Thus in our judgment the permission granted by the General Development Order was subject to limitations, the limitations being the excepted shop purposes. The learned deputy judge held, in reliance on the cases of Garland v Minister of Housing and Local Government (1969) 20 P & CR 93 and Rochdale Metropolitan Borough Council v Simmonds [1981] JPL 191, that these limitations on the use to which the premises might be put were not limitations subject to which the permission was granted within section 23(8), but were part of the definition of the development. The two cases cited were concerned with the validity of enforcement notices and we do not seek in any way to question the validity of those particular decisions. But where the General Development Order specifically makes it clear that any limitations contained in the description of the development are limitations subject to which the development is permitted, in our judgment that must be development granted subject to limitations within the meaning of section 23(8).
The appeal was dismissed; no order was made for costs. Leave to appeal to the House of Lords was refused.
