Town and Country Planning Act 1971–Established Class IV use for concrete block-making–Enforcement notice–Notice not void although drafting defective–New processes and intensification of use extending in part to open land–Interpretation of article 2(3) of the Town and Country Planning (Use Classes) Order 1972–Open land used for same purpose as building one unit for planning purposes–Where operations confined to Class IV uses question whether intensification of use a material change irrelevant–Case remitted to Secretary of State for reconsideration
This was an
appeal from a decision of the Queen’s Bench Divisional Court who had dismissed
an appeal by Brooks & Burton Ltd, owners of land at Holt, Wimborne, Dorset,
from a decision of the first respondent, the Secretary of State for the
Environment, confirming with certain amendments enforcement notices served on
behalf of Dorset County Council, the planning authority, requiring the
appellants to cease using land and buildings for the manufacture of concrete
blocks and other industrial uses. The second respondent, the county council,
was not represented and took no part in the proceedings. The decision of the
Divisional Court was reported at (1977) 241 EG 457, [1977] 1 EGLR 123.
Miss Monique
Viner and William Hicks (instructed by Riders, agents for Derek T Wilkinson
& Co, of Bournemouth) appeared on behalf of the appellants; Peter Boydell
QC, Harry Woolf and R J Seabrook (instructed by the Treasury Solicitor) represented
the first respondent.
Giving the
judgment of the court at the invitation of Megaw LJ, LAWTON LJ said: In this
appeal, in which the Dorset County Council have not appeared, the main
questions for decision have been these: first, was an enforcement notice dated
September 13 1973 served upon the appellants, Brooks & Burton Ltd, by the
Wimborne and Cranborne Rural District Council, acting as agents of the Dorset
County Council as the planning authority, null and void? Secondly, even if that enforcement order was
valid, did the Secretary of State misdirect himself in law on the facts found
by the inspector and as to the construction of the Town and Country Planning
(Use Classes) Order 1972 (SI 1972 No 1385)?
Thirdly, was an enforcement notice dated April 4 1973, and served by the
same planning authority, valid having regard to the facts found by the
inspector?
The land to
which these enforcement notices applied was about four miles north-north-east
of Wimborne Minster. We shall refer to this land as the appeal site. It covers
about five acres, but the activities which led to the serving of the two
enforcement notices were on only part of the site, the area being about 1.78
acres. We shall refer to this as the block-making site. The appeal site lies
behind some houses in the hamlet of Holt and is approached by an accommodation
road off an unclassified road running through the hamlet. This site, together
with some adjoining land, was for a long time before 1963 known as Holt
Brickworks. We shall refer to all that land as the brickworks land.
Brick-making on a small scale was carried on there from 1929 until 1958. Clay
was hauled up by machinery from clay-pits on this land. It was moulded in a
shed. The moulded bricks were then dried in open-sided sheds known as hacks,
and when sufficiently dry they were burnt in kilns. By 1937 there were three
kilns. As brick-making was taking place on July 1 1948, that activity became an
established use under the Town and Country Planning Act 1947: see section
12(1). Under the Town and Country Planning (Use Classes) Order 1953, the
"burning of bricks or pipes" became a Class VI use. In 1958
brick-making stopped. The then owner of the brickworks land applied to the
planning authority for permission to use three acres of it for light industrial
purposes, a Class III use. A large part of that three acres was on the appeal
site. The application was granted on January 28 1959. Later in that year the
brickworks land was sold to a Mr Stokes, together with the goodwill of the
brick-making business. Mr Stokes found it impracticable to carry on the
brick-making business. The land was unused from 1959 until the end of 1963; but
the buildings and machinery remained.
In the summer
of 1963 Mr Stokes agreed to sell the brickworks land to three partners, who
were two brothers named Sturtevant and a Mr King. The conveyance was dated
October 14 1963. The partners wanted to use a small part of the brickworks land
to make concrete blocks. They started to do so in November 1963. By Christmas
1963 commercial production can be said to have been established. Planning
permission for this change of use had neither been asked for nor given. It was
a development of the land in breach of planning control, but as it had started
before the end of 1963 and no enforcement notice had been served in respect of
it before 1973 the partners and their successors in title became immune from
enforcement; but the use for concrete block-making was not one for which
planning permission had been granted. See sections 23 and 87 of the Town and
Country Planning Act 1971 and LTSS Print & Supply Services Ltd v Hackney
London Borough Council and Another [1976] QB 663. That this use was not a
lawful one, even though the occupiers were immune from enforcement proceedings,
is of importance in relation to the appellants’ submissions as to the validity
of the enforcement notice dated April 4 1973.
By 1972 Mr
King was dead. One of the Sturtevant brothers had sold out to the other. He was
carrying on with the help of his son. Their operations were then on a small
scale. They made concrete blocks for garden use. Two sheds were in use. One had
in it block-making machinery which was driven by a diesel engine. This caused
some noise which could be heard outside the boundaries of the appeal site. The
other was used as a staff room and had a lavatory in it. The blocks when made
were dried in the open air. This was done by placing them on concrete strips
set in hoggin which had been laid down. About six men were engaged in
block-making. The potential production for the machinery and manpower was about
300,000 blocks a year but this was not accomplished. The vehicular traffic to
and from the block-making site was light. The office work was done in a
bungalow in a corner of the block-making site. Planning permission for the
erection of this bungalow had been given in 1959 but its use was limited to
light industrial purposes.
In 1972 the
appellants became interested in the brickworks land. They had ideas for
increasing the production of concrete blocks by the use of more modern
machinery. They made inquiries about the planning position. In the autumn of
1972 one of the appellants’ directors, a Mr Brooks, called at the local
planning office at Wimborne Minster and had an interview with a Mr Belcher, who
was the local building inspector. Mr Belcher said he knew the brickworks land
and that concrete blocks had been made there for 10 years or more. A few days
later Mr Brooks called on Mr
and that planning permission for industrial use had been given for three acres
and that he could see no reason why Mr Brooks’ company should not carry on with
concrete block-making. He suggested that Mr Brooks should call on the planning
officer, a Mr Belsten. This Mr Brooks did, accompanied by another director. Mr
Belsten got out the plans and checked the records. He confirmed that there was
a permitted use on three acres under Class III. Mr Brooks told him that his
company had plans to install a new mixer and to concrete the yards. Mr Belsten
said that they could carry on making concrete blocks.
The
appellants’ two directors assumed that their company would not require planning
permission for what they had in mind to do by way of block-making on the appeal
site. No application was ever made for planning permission. When in 1973 the
appellants learned that the planning authority were claiming that they should
have obtained permission for what they were doing and served the enforcement
notice dated September 13 1973 they were indignant. In the inquiry which was
held as a result of the service of this and other enforcement notices the
appellants contended that the planning authority were estopped by what Mr
Belcher and Mr Belsten had said to them from alleging that there had been any
development of the appeal site which required planning permission. The
inspector rejected this contention. So did the Secretary of State. On the
appeal from the latter’s decision which the appellants made to the Divisional Court
they again raised the issue of estoppel and again failed. The Divisional
Court’s order did not indicate that leave to appeal on that issue had been
given. At the hearing Miss Viner on behalf of the appellants asked the court
for leave to appeal on that issue. After some discussion she abandoned that
application. This was a wise decision, as on the evidence and the inspector’s
findings estoppel would have been difficult, probably impossible, to establish.
We say no more about this issue.
Confident that
they could lawfully use the appeal site for what they wanted to do, the
appellants agreed to buy it in November 1972. It was conveyed to them on
December 14 1972. Once in possession they set about modernising and expanding
the business which the Sturtevants had carried on. They planned to produce
concrete blocks for general building use as well as for ornamental garden use.
Blocks of the new type were to be made in the open air with modern equipment.
For this purpose they obtained and installed in the open air on the
block-making site some machinery called a batching plant. It was large,
standing about 25 ft off the ground. It could be seen from neighbouring
properties. It made some noise, as did the diesel generator which provided it
with electricity. A small amount of cement dust was released when cement was
fed into it. Other smaller machines were brought on to the block-making site
and installed in the open. The machinery which the Sturtevants had used for
making garden blocks was retained and used in one of the two sheds in wet
weather. The other shed was used, as it had been in the Sturtevants’ time, as a
workshop with welding equipment and tools in it. Part was set aside as a staff
room, adjoining which was a lavatory. The bungalow was used solely as offices.
The new machinery produced many more blocks than had been produced in the
Sturtevant days. Production began to run at a rate of about 1,200,000 per
annum. More men had to be employed–15 or so instead of six. The traffic to and
from the site increased considerably; more materials were brought on to the
site, more blocks taken away. The materials had to be stored pending use. This
was done on a small piece of land, about 1/4-acre in size to the south-east of
the area which had been used by the Sturtevants for block-making. Lorries were
also parked there from time to time.
The people
living around did not like what was going on. Complaints were made to the
planning authority. They looked into the matter. What was going on was not a
use of the block-making site "as a light industrial building" under
Class III of the Use Classes Order 1972, which was the use for which permission
had been granted in 1959. The reason for this was that the appellants’
block-making activities were undoubtedly a detriment to the amenity of the
neighbourhood by reason of noise and dust: see the definition of "light
industrial building" in article 2 (2) of the Use of Classes Order 1972,
which is as follows: "’light industrial building’ means an industrial
building (not being a special industrial building) in which the processes
carried on or the machinery installed are such as could be carried on or
installed in any residential area without detriment to the amenity of that area
by reason of noise, vibration, smell, fumes, smoke, soot, ash, dust or
grit."
The planning
authority decided to use its enforcement powers and to refuse belated
applications for planning permission which the appellants made when they
appreciated that there was doubt about the planning situation. Two enforcement
notices dated February 7 1973 were served. This appeal is not concerned with
either of them. The next notice was dated April 4 1973 and required the
appellants to demolish the batching plant which they had installed. There was
another notice, dated July 2 1973, requiring the appellants to discontinue use
of the land for a temporary office. We have not been concerned with that
notice. The last of the notices was dated September 13 1973. The object of this
notice was to stop the appellants making concrete blocks in the way they had
been doing. As this notice is said to be null and void, it is necessary to
refer to it in some detail. It was in common form with four recitals followed
by a paragraph telling the owners, that is the appellants, what they were required
to do. One of the recitals set out the planning authority’s allegation: It was
as follows:
It appears to
the council that after December 31 1963 there has been a breach of planning
control in that the said land [that is the appeal site] has been developed
by the making of a material change in the use thereof and of the buildings
situated therein to a use for the purpose of manufacture of concrete blocks,
and other industrial purposes other than those indicated under Class III of the
Town and Country Planning (Use Classes) Order 1972 without the grant of
permission required in that behalf under Part III of the Town and Country
Planning Act 1962, or Part III of the Act of 1971.
The material
parts of the requirement were as follows: the appellants were required within
two months:
to
discontinue the use of the said land and of the buildings situate on the said
land for the manufacture of concrete blocks and other industrial uses and to
remove from the said land and the buildings situate thereon plant and machinery
used or designed for the manufacture of concrete blocks and restore the land
and buildings to their original condition before the said development took
place.
The appellants
by letter dated October 15 1973 appealed to the Secretary of State against the
service of these enforcement notices. He ordered an inquiry which was held by
his inspector, H St J Grant, from October 22 to November 9 1974. He heard
evidence and listened to elaborate submissions. He made a lengthy report to the
Secretary of State dated April 19 1975. It contained no less than 604
paragraphs. He recommended that the enforcement notices with which this appeal
is concerned should stand, with modifications of the periods of time for
compliance.
The Secretary
of State gave his decision in a long and carefully worded letter dated October
14 1975. The relevant parts of his decision can be summarised as follows.
First, that although the enforcement notice dated September 13 1973 was not
null and void, it should be varied. In the recitals the reference to Class III
of the Town and Country Planning (Use Classes) Order 1972 should be deleted and
there should
about, namely, the use of a mobile machine, the extension of the area used for
block-making and the intensification of use; and the requirement paragraph
should be amended to read so as to call upon the appellants to discontinue the
use of the appeal site "for the manufacture of concrete blocks by a mobile
block-making machine and to remove from the said land the mobile block-making
machine and other plant used in connection with it." Secondly, that the use of the appeal site by
the Sturtevant partnership from shortly before January 1 1964 until the
appellants took it over from them had been a Class IV use, not a Class III one;
that this use, although not a permitted one, had become one which was immune
from enforcement proceedings. Thirdly, that there had been a material change of
use by the appellants. This had come about in three ways: by block-making in
the open; by different working procedures "together with intensification
of the potential capacity of the plant"; and by the extension of the area
used for block-making to include land to the west to provide a concreted area
for the storage of blocks produced by the mobile block-making machine. It was
accepted by Mr Boydell on behalf of the Secretary of State that there had been
no extension to the west of the area used for block-making. The only extension
had been a small one of about 1/4 acre to the south-east and that was not used
for actual block-making but for the storage of materials and the occasional
parking of vehicles. The Secretary of State accepted the other recommendations
made by the inspector.
The appellants
appealed to the Divisional Court against the Secretary of State’s decision. The
appeal was made under section 246 of the Town and Country Planning Act 1971. It
could only be made on points of law. On the hearing of this appeal Widgery CJ commented
critically on what he called "the degree of technicality into which the
law of town and country planning has now come." We share his antipathy for this development,
of which this case is a striking example. The Divisional Court adjudged first,
that the enforcement notice dated September 13 1973, was not null and void and
could lawfully be amended in the way the Secretary of State had done so;
secondly, that the part of the appeal site on which block-making was being
carried out in the open had never acquired the capacity for use as an
industrial building because it had never been land ancillary to an industrial
building; and thirdly, that, because of the activities being carried on in the
open, apart altogether from the changes in the volume and methods of
manufacture, there had been a material change in the use of the appeal site and
in consequence unlawful development. The Divisional Court did not give any
ruling on the enforcement notice dated April 4 1973; but it dealt at length
with the issue of estoppel, with which we are no longer concerned. The appeal
was dismissed.
Before this
court, Miss Viner on behalf of the appellants renewed and elaborated the
arguments which she had put before the Divisional Court. It will be convenient
to start with those directed to the alleged total invalidity of the enforcement
notice dated September 13 1973. Leave to appeal was not given by the Divisional
Court on this issue. It is clear from the court’s order that the Divisional
Court did not think that such leave had been asked for. In the light of what
appears in the transcript, there is no reason why they should have thought that
leave was being asked on this issue. But, solely because we were told that
there had been some misunderstanding on the part of counsel on both sides, who
believed that such leave had been asked for and given, we decided that we
should grant leave. Otherwise we would not have done so. Miss Viner contended
on this issue that this notice was founded on a misconception as to what had
happened in the past. The planning authority had wrongly assumed that the
Sturtevant partnership had used the appeal site for Class III purposes whereas
they had used it for Class IV purposes. This, submitted Miss Viner, was a fatal
defect. We do not agree. The planning authority had overstated their case; but
that did not mean they had no case at all. Provided the analogy is not taken
too far, an enforcement notice can be likened to an indictment. In an
indictment the prosecution may charge more than they can prove, as, for
example, by charging causing grievous bodily harm with intent, when they
cannot, as it turns out, prove the intent; but if they can prove the causing of
grievous bodily harm, a conviction can be founded on the indictment. So with
this enforcement notice. The allegation was that the appellants were using the
appeal site for the manufacture of concrete blocks in a different way from that
in which it had been used in the past; and so it had been; but not as
differently as the planning authority had alleged. Miss Viner’s complaint about
the requirement part of the enforcement notice was based upon its alleged
ambiguity. It left uncertain, she said, what the appellants had to do to comply
with it. This uncertainty was made the greater by the reference in the recitals
to an earlier alleged Class III use. Again we do not agree. Had this
enforcement notice been drafted by a skilled conveyancer it would, no doubt,
have been made more specific; but it was not. It was probably drafted by or for
a planning officer and was intended to be read by the appellants’ directors. We
have no doubt as to how they would have construed it. They were to stop doing
what they were doing and to run the appeal site in the same way as the
Sturtevant partnership had run it. It was effective enough for its purpose but
capable of improvement. This is what it got from the Secretary of State by way
of amendment. In our judgment it was far from being a notice which was null and
void within the principles referred to by Upjohn LJ in Miller-Mead v Minister
of Housing and Local Government [1963] 2 QB 196 at p 226.
As an
alternative to her submission that this enforcement notice was null and void,
Miss Viner argued that the making of the amendment after the inquiry had been
held had resulted in an injustice to the appellants because they had attended
the inquiry to meet the allegations and requirements contained in the unamended
notice and had had no opportunity of dealing with the case revealed by the
amended notice. She said that, as the appellants’ counsel, she would have
conducted their case differently if the amended form of notice had been before
the inspector. She told us the respects in which she would have conducted the
case differently. There is nothing in this submission. As we have already said,
it was clear from the start what the inquiry was about and the appellants must
have known what it was about. Had the amendment been under consideration by the
inspector, Miss Viner might have emphasised one point more than another, but it
could not have made any real difference to the case which the appellants were
putting forward.
The appellants
challenged the Secretary of State’s decision about there having been a material
change in the use of the appeal site. In his decision letter he had given two
reasons for saying that there had been such a change in use. The first was that
the processes carried out on the open land were not dependent at all on any use
of the industrial buildings. Accordingly, in so far as such processes were new
ones, the use could not be regarded as falling within Class IV of the Use
Classes Order 1972, since they were not "a use as a general industrial
building." The new processes were
development within section 22(1) of the 1971 Act, but as they were not
dependent at all on any use of the industrial buildings they did not attract
the benefit of section 22(2)(f), which excludes from the definition of
development in section 22(1) any uses "in the case of buildings or other
land which are used for a purpose of any class specified in an order made by
the Secretary of State under this section, the use for any other purpose of the
same
IV carried on inside the buildings would have been permissible under section
22(2)(f), but new ones carried on outside were not. The second reason was that
on the evidence there had been a material change of the use of the whole
block-making site by the introduction of a materially different working
procedure together with intensification of the potential capacity of the plant.
The Divisional
Court did not give any ruling upon that part of the Secretary of State’s
decision about a material change of use coming about through the
intensification of the manufacturing procedure on the appeal site. The Lord
Chief Justice in his judgment, with which Melford Stevenson J and Caulfield J
agreed, said that the open land which the appellants had used for concrete
block-making had never acquired the capacity for use as an industrial building
because it was never land ancillary to an industrial building and that some
connection of that kind was necessary before the characteristic of the use can
be acquired by open land. It was on this issue that leave to appeal, so far as
appears from the order of the Divisional Court, was in fact given by that
court.
Both the
Secretary of State and the Lord Chief Justice put a gloss on the relevant
provision in the Use Classes Order 1972, which is article 2(3). It provides as
follows: "Reference in this Order to a building may, except where otherwise
provided, include references to land occupied there-with and used for the same
purposes." The Secretary of State
said that the concrete block-making in the open was not dependent on any use of
the industrial buildings. The word "dependent" is not to be found in
article 2(3); nor is the phrase "land ancillary to an industrial
building" which the Lord Chief Justice used. The relevant words are
"land occupied therewith and used for the same purposes." In the context, the words "land occupied
therewith" must mean land other than the site of the building. The words
"and used for the same purposes" are words of limitation restricting
the extent of the land which can be included with a structure so as to
constitute a "general industrial building." The amount of land which comes within article
2(3) will usually be small, for example a loading bay or a yard used for
storing fuel; but in exceptional cases it may be extensive, as in a
linen-weaving factory which bleaches its woven products in the open air. Miss
Viner pointed out that this Use Classes Order does cover uses which are
dependent on or ancillary to something else; but when it does so it uses
language different from that in article 2(3). Thus article 3(3) refers to a use
"which is ordinarily incidental to and included in any use specified in
the schedule to this Order . . . "; and Classes VI and VII except from
their general words of definition processes which are "ancillary to the
getting, dressing or treatment of minerals."
Mr Boydell
submitted that article 2(3) should be construed in the restricted sense used by
the Secretary of State and the Divisional Court. This construction had been
applied, he said, ever since Use Classes Orders had first been made, which was
nearly 30 years ago. It was one which conformed to the general policy of the
Town and Country Planning Acts and the Use Classes Orders made under them.
Section 22(2)(f) of the 1971 Act excluded from the definition of
"development" in section 22(1) "in the case of buildings or
other land" changes of use which were within the same class of use as had
been carried on previously. The policy behind this was that a change of use
within the same class inside a building was unlikely to be detrimental to the
amenities of the neighbourhood. The reference to "other land" in
section 22(2)(f) and in article 3(1) of the Use Classes Order 1972 was
irrelevant to this case because the only relevant use was that "as a
general industrial building" under Class IV. These words "other land"
were put in to cover industrial activities within Classes VI, VII and VIII
which might be carried on in the open air. If article 2(3) were not construed
in a restrictive sense, a Class IV change of use in a building and on the
"land occupied therewith and used for the same purposes" might result
in a deleterious interference with the amenity of the neighbourhood. Mr Boydell
also submitted that a wider construction of article 2(3) could result in the
kind of absurdity to which the Lord Chief Justice referred in his judgment when
he said: "But what I do not believe is possible is for a piece of land to
acquire, as it were, industrial rights for planning purposes merely because in
the corner is a tiny building used for industrial purposes." Nor do we; and this is so under the wider
construction which we adjudge to be the correct one. The test is the use to
which the land occupied with the building has been put. If it has been used for
the same purpose as the building it can be regarded planning-wise as one unit
with the building; but if it has not been so used it cannot be. In our judgment
this is the plain meaning of the words used in article 2(3). If policy requires
a more restricted meaning to be put upon the article, the order will have to be
amended.
When the
construction which we have adjudged to be correct is applied to the inspector’s
findings of fact, the result must be that during the Sturtevant occupation of
the appeal site the part of the block-making site in the open was used for the
same purpose as the shed in which the concrete block-making machinery was
installed. The blocks produced in the shed were dried in the open on concrete
strips set in hoggin. This was all part of the block-making process. The whole
block-making site was a "general industrial building" for the purposes
of the Use Classes Order; and as long as the appellants confined their
operations on this site to Class IV uses, they were entitled to the benefit of
section 22(2)(f) even though any new processes and intensification of use
amounted to a material change of use.
Miss Viner
submitted that on the evidence there had not been a material change of use
anyway because all that had been proved had been a change in the degree of use,
not the kind of use. She said that the Secretary of State had misdirected himself
in law in deciding that a change in the degree of use could be a material
change of use. Having regard to what we have adjudged to be the right
construction of article 2(3), it matters not whether the intensification of use
found by the inspector to have taken place did amount to a material change of
use, provided the new use was a Class IV one; and it clearly was. Nevertheless
Miss Viner’s submission on intensification of use calls for examination because
she told us that there is no reported case in which a change in the degree of
an existing use, often referred to as intensification of use, has been adjudged
to be a material change in use. As her researches have clearly been thorough,
this may be so as a matter of the strict application of the law relating to
precedent. In Guildford Rural District Council v Fortescue and Penny
[1959] 2 QB 112 Lord Evershed MR, without deciding the point, expressed the
opinion that "mere intensity of use may . . . affect a definable character
of the land and of its use. . . . "
In Glamorgan County Council v Carter [1963] 1 WLR 1,
Salmon J, as he then was, expressed the opinion on the facts before him that
"once it is established that the whole site is used as a caravan site it
does not seem to me that the use is materially changed by bringing a larger
number of caravans upon the site."
On numerous occasions since 1959 the Secretary of State, probably
relying on the opinion of Lord Evershed, has decided that an intensification of
use may be a material change of use. Particulars of some of these decisions are
to be found in the Encyclopedia of Planning, vol 4, pp 6077-6079. What
is clear is that, when hearing appeals from the Secretary of State in cases
where there has been a question whether there has been a material change of
use, the courts have consistently held that the question is one of fact and
have declined to substitute any decision of their own for that of the Secretary
of State: see East Barnet Urban District
cases referred to in the Encyclopedia of Planning, vol 4, at p 6079. We
have no doubt that intensification of use can be a material change of use.
Whether it is or not depends upon the degree of intensification. Matters of
degree are for the Secretary of State to decide. He did so in this case. There
was ample evidence to support his decision on this point. It cannot be upset in
this court.
Mr Boydell
sought to uphold the Secretary of State’s decision about change of use on
another ground. He submitted that when the appellants started to make concrete
blocks for general building use in the open air on the appeal site they began a
new operation which was an unauthorised development within section 22(1) of the
1971 Act. They were not, he argued, merely intensifying an existing use. We do
not agree. The primary purpose for which the Sturtevants had used the site and
the appellants were using it was for concrete block-making. It is this primary
purpose which determined the character of the use. See Brazil (Concrete)
Ltd v Amersham Rural District Council (1967) 18 P & CR 396.
There remains
one detail to be dealt with in relation to change of use, namely the use to
which the appellants put the small area of 1/4-acre to the south-east of the
appeal site. The Secretary of State admittedly was mistaken about the situation
of, and the use to which the appellants put, the additional land to which he
referred in his decision letter. This, in our judgment, is of no materiality in
relation to the enforcement notice dated September 13 1973.
We turn now to
the appellants’ contention that the enforcement notice dated April 4 1973 was
invalid. The appellants did not get leave from the Divisional Court to appeal
against this notice, but on the hearing of the appeal, in order that this
further issue might be considered in the light of our decision, differing from
the Divisional Court in one respect, as to the enforcement notice of September
13 1973, we granted leave. The allegation in the April enforcement notice was that
in breach of planning control the appeal site had been developed by the
erection of a concrete batching plant. The requirement was that the appellants
should demolish this plant and remove all materials arising from such
demolition and restore the land to the condition it was in before the
unauthorised development had taken place. In the early part of 1973 the
appellants erected the batching plant on the block-making site and began to use
it in May 1973. It stood on the concrete yard. Miss Viner made an elaborate
submission to justify the erection of this machinery. It was to the effect that
the Sturtevants’ use of the appeal site had not been in contravention of
planning control. This was based upon the history of the appeal site and of the
adjoining land when the brickworks were operating, and upon the contention that
burning bricks and making concrete blocks were substantially the same
operation, since the burning of bricks and the drying of blocks were mere
finishing processes after moulding had been done. The Secretary of State
rejected this argument and decided that the concrete block-making started by
the Sturtevants had been a material change in the use of the site. That use was
a Class IV use and not a Class III use for which planning permission had been
granted in 1959. It followed that the Sturtevant use was not a use for which
planning permission had been granted although with the passing of time it
became a use which was immune from enforcement: see section 87 of the 1971 Act
and LTSS Print & Supply Services Ltd v Hackney London Borough
Council [1976] 2 QB 663. Miss Viner accepted that the LTSS case,
being a decision of this court, was binding on us. It follows, in our judgment,
that the appellants, as successors to the Sturtevants, could not take advantage
of the provisions of article 3(1) of the Town and Country Planning General
Development Order 1973 (SI 1973 No 31) which permits development of any class
specified in Schedule 1 to the Order. Class VIII permits the installation or
erection by way of addition or replacement of machines not exceeding 15 metres
in height. The batching plant was under this height. But advantage of this
permission can only be taken by an industrial undertaker on land used
"otherwise than (i) in contravention of previous planning control or (ii)
without planning permission granted or deemed to be granted under this
Act." This qualification renders
Miss Viner’s argument of no avail to the appellants. She wished to reserve the
right to argue elsewhere that the LTSS case had been wrongly decided. In
our judgment no valid criticism of the enforcement notice dated April 4 1973
can be made.
The appeal
will be allowed and the case will be remitted to the Secretary of State in
accordance with Rules of the Supreme Court Order 94 rule 12(5) for him to
reconsider and determine it in the light of our opinion as to the right
construction of article 2(3) of the Town and Country Planning (Use Classes)
Order 1972.
The
appellants were awarded costs in the court below and one-half costs in the
Court of Appeal. An application by the first respondent for leave to appeal to
the House of Lords was refused.
