Enforcement notice–Established use for general industrial purposes held to cover only a building on owner’s land
This was an
appeal by Brooks & Burton Ltd, owner-occupiers of land at Holtwood,
Wimborne, Dorset, from a decision of the first respondent, the Secretary of
State for the Environment, upholding with amendments an enforcement notice
served on them by the second respondents, the former Dorset County Council, requiring
them to cease using the land for manufacture of concrete blocks or other
similar industrial purposes.
Miss M Viner
(instructed by Riders, agents for Derek T Wilkinson & Co, of Bournemouth)
appeared for the appellants, and P Boydell QC and H K Woolf (instructed by the
Treasury Solicitor) represented the first respondent. The second respondents
took no part in the proceedings.
Giving
judgment, LORD WIDGERY said that in 1959 planning permission was granted for
use of at any rate some of the land in question for light industrial purposes
within Class III of the Town and Country Planning (Use Classes) Order 1950, now
replaced by Class III of the Town and Country Planning (Use Classes) Order
1972. From 1963 to 1972 the land was occupied by two brothers who carried on
business as makers of concrete blocks, installing in a building which stood on
part of the land some fairly basic equipment involving a minimum of mechanical
power. In 1972 the land was occupied by two brothers who carried orally
inquired of officers of the local planning authority whether planning
permission was needed to carry on the business of concrete-block making on the
land, and were told no. They bought the land, and then set up a larger business
than existed previously. In addition to retaining the old equipment they
installed more modern machinery in the open; and they increased the number of
employees from a maximum of six to about 19, and the production from under
300,000 blocks a year to over 1,200,000. The appearance of the land was
altered, and the activities carried on upon it became much more intense. On
September 13 1973 the planning authority served an enforcement notice on the
appellants reciting a breach of planning control, namely a material change of
use to a use for the purpose of the manufacture of concrete blocks and other
industrial purposes distinct from those indicated under Class III of the use
classes order. The notice required the appellants to discontinue the use and
remove the plant and machinery connected with the manufacture.
It was obvious
that what the planning authority was complaining about was the more intense
activities taking place on the land. Nevertheless it was clearly wrong, having
regard to the existing use within Class III, for the authority to require
removal of all the appellants’ plant and machinery. There was an appeal to the
minister, who appointed an inspector to hold an inquiry. The inspector came to
the conclusion that a use within Class IV of the order as ‘a general industrial
building for any purpose’ had become established on the land by 1972, and that
accordingly the concrete-block-making business did not constitute development
for which planning permission was required. The minister accepted this
conclusion, but went on to hold that the intensification of the activities
constituted a material change of use. He therefore upheld the enforcement
notice, having made the amendments necessary to permit the established use to
continue. The question which arose on that decision was how, since both the
pre-1972 and the present use of the land were within Class IV, a material
change of use could have taken place. The answer lay in article 2 (3), by which
references to a building might include land occupied therewith and ‘used for
the same purposes.’ By that article land
was excluded from a building unless it was attached to and ancillary to the
building. The minister took the view that the open land did not acquire the
capacity for use as a general industrial building before 1972, since the
machinery was then installed indoors and the blocks were made indoors. If that
view were right the enforcement notice could not be set aside.
The remaining
question of substance was whether the planning authority were estopped from
serving the enforcement notice because of the views expressed by their
employees to the appellants about the need for planning permission. Any attempt
to expand the doctrine of estoppel expressed in Lever Finance Ltd v Westminster
(City) London Borough Council [1971] 1 QB 222 was to be deprecated, because
it was extremely important that planning authority officers should feel free to
help applicants without having the shadow of estoppel hanging over their heads
and the possibility of their immobilising the authority by some careless remark.
In the present case it had not been shown that the appellants gave the officers
sufficient information for them to give a precise answer so as to bind the
authority. The appeal failed on this ground also, and should be rejected.
MELFORD
STEVENSON and CAULFIELD JJ agreed, and the appeal was accordingly dismissed.
