Certificate of lawful use (CLU) – Breach of planning control – Respondents appealing against enforcement notice without relying upon CLU – Respondents failing to comply with enforcement notice – Appellants applying for permanent injunction – Whether respondents entitled to rely upon CLU – Whether CLU overriding enforcement notice – Appeal allowed
The first respondent’s father owned agricultural land. He died in 1997 and the respondents became the executors of his estate. In 1988, the appellants served an enforcement notice, under section 172 of the Town and Country Planning Act 1990, alleging a breach of planning control and requiring the importation of waste material to the land to be stopped. No appeal was made against that notice.
The first respondent used some of the land for business purposes and, in 1994, the borough council granted his application for a certificate of lawful use (CLU) under section 191 of the 1990 Act. However, the borough council had no power to grant a CLU for a waste process because that was a planning function of the appellants.
In 1996, the appellants refused to grant a CLU relating to use of part of the land for storage and the processing of waste materials and, in 1997, they issued a further enforcement notice alleging a breach of planning control by a change of use to use of the land from agriculture to that of a waste-transfer station. The first respondent appealed against that decision under section 174 of the 1990 Act, relying not upon the existence of the CLU but solely upon the contention that there had been no change of use. An inspector appointed by the secretary of state dismissed the appeal, taking account of the CLU as part of the planning history of the site.
The appellants then applied for an injunction against the first respondent to restrain further breaches of the enforcement notice and brought proceedings against both respondents to recover the cost of direct action taken to remove waste materials from the land. The judge found against the appellants, holding that the prohibition on challenging an enforcement notice in section 285(1) of the 1990 Act did not suffice to override the conclusive nature of the CLU. Moreover, the appellants could not recover their costs of the direct action since they were unable to allocate those costs to the removal of materials that had been brought onto the site in breach of the enforcement notice and those that had not. The appellants appealed.
Held: The appeal was allowed.
The judge had erred in regarding the activities covered by the 1994 CLU as being exempt from the 1997 enforcement notice. The enforcement notice would prevail if a conflict arose between the two.
It had long been established that lawful use rights would be lost if an enforcement notice was served and the rights were not then raised as a ground of appeal. There was no general right to assert existing use rights at the time the enforcement notice had come into effect after an unsuccessful appeal or in the absence of an appeal. Such rights had to be asserted at the time of appeal against the enforcement notice. If a landowner slept on those rights, it would lose them. The position was no different when existing use rights had been certified in a CLU, the existence of which made no difference to the effect of section 285(1) of resolving issues such as existing use rights as part of the process of appeal to the secretary of state: R v Smith [1985] JPL 183; Vale of the White Horse District Council v Treble-Parker [1997] JPL 660; Buckinghamshire County Council v North West Estes plc [2003] EWCA Civ 719; [2003] 3 PLR 46; Mansi v Elstree Rural District Council (1964) 189 EG 341; R v Harfield [1993] 2 PLR 23 and Duguid v Secretary of State for the Environment, Transport and the Regions [2000] 4 PLR 107 considered.
The respondents were liable for the costs of the appellants’ removal of the waste materials under section 178 of the 1990 Act, but this would be limited to the value of the estate since the respondents had been sued in their capacity as executors.
Finally, since there had been flagrant non-compliance with the 1997 enforcement notice, a permanent injunction was necessary, under section 187B of the 1990 Act, to ensure compliance by the first respondent with the enforcement notice in the public interest.
Note: An appeal by the respondent against his criminal conviction was also heard by an identically constituted court in the Criminal Division of the Court of Appeal, which held that the effect of section 285 was to prevent reliance on the CLU in the criminal proceedings and dismissed the appeal.
Ian Dove QC, Nicola Preston and Richard Kimblin (instructed by the legal department of Staffordshire County Council) appeared for the appellants; Anthony Smith QC and Patrick Darby (instructed by Dunham, Guest & Lyons, of Cannick) appeared for the first respondent; The second respondent appeared in person.
Eileen O’Grady, barrister
