Town and Country Planning Act 1971–Enforcement notice requiring discontinuance of use of farm shop for sale of "imported" produce–Motion to set aside Secretary of State’s decision quashing notice–Material change of use, but breach of planning control found to have occurred before end of 1963–Date of change a matter of fact for minister–No error–Application for certiorari dismissed
In these proceedings
the local planning authority, the London Borough of Bromley, applied for an
order of certiorari to set aside a decision of the second respondent, the
Secretary of State for the Environment, quashing, on an appeal by George
Hoeltschi & Son Ltd, the first respondents to the present application, an
enforcement notice requiring them to discontinue the use of a farm shop at
Hayes Street Farm, Bromley, for the sale of agricultural produce other than
produce grown on the farm, on the ground that such use was a material change of
use for which planning consent had not been granted.
P Ground
(instructed by B R Wilson, Town Hall, Bromley) appeared for the applicants; D
Woolley (instructed by Harveys) represented the first respondents; Harry Woolf
(instructed by the Treasury Solicitor) represented the second respondent, the
Secretary of State for the Environment.
LORD WIDGERY
CJ said that the applicants’ complaint was that the Secretary of State erred in
law in quashing the enforcement notice made on the ground that it appeared to
the local planning authority that the use of the farm shop for the sale of
produce other than that grown on the 300-acre farm had developed to such an
extent after December 31 1963 as to amount to a material change of use. The
local planning authority’s case was that the sale of "imported
produce" from the farm shop had increased so as to constitute development.
The case of Williams
v Minister of Housing and Local Government (1967) 18 P & CR 514
raised similar issues to the present case. In that case it had been held that a
change in the character of use which was not de minimis could be a
material change of use. It was clear that the Secretary of State in the present
case had had the Williams case clearly in mind in reaching his decision.
As soon as the
first respondents began to "import" produce into the shop for retail
sale there was a change in the character of use and that would justify a
finding that there had been a material change of use. But the court would not
interfere in questions of fact and degree and whether or not the change took
place before January 1 1964 was such a question. When one looked at the
evidence one saw that the first respondents began selling produce from the shop
in 1962. The sale of produce bought wholesale and not grown on the farm
continued between 1962 and 1968. There was sufficient evidence to justify the
Secretary of State’s conclusion that the sale of "imported" produce
before January 1 1964 was not de minimis and the appeal should be
dismissed.
EVELEIGH and
BOREHAM JJ agreed.
The appeal
was dismissed. The applicants were refused leave to appeal.
