Town and Country Planning Act 1971–Local planning authority challenge decision of Secretary of State to quash enforcement notices–Change in character of use of land from predominantly rural use for storing, sorting and grading timber in the round to industrial timber yard with stacks of planks–Present use, however, not materially different from that specified in established use certificate–Effect of certificate–Function under section 94 of Act to render specified use, so long as it persists, immune from enforcement action–Secretary of State acted correctly in rejecting inspector’s recommendations, based on investigation of actual use before issue of certificate, that the enforcement notices should, with an exception, be upheld–Wrong to go behind the established use certificate–Appeal and motion to quash dismissed
These
proceedings consisted of an appeal under section 246 and an application to
quash under section 245 of the Town and Country Planning Act 1971. Both were
designed to challenge decisions of the Secretary of State concerning
enforcement notices served by the appellants, Broxbourne Borough Council, in
relation to Doverfield, Goff’s Lane, in Hertfordshire, a piece of land of about
3 1/2 acres. The Secretary of State was the first respondent, St Ouen Diamond
& Fine Art Co Ltd, the freeholders, were the second respondents and Sir
William Burnett & Co (Timber) Ltd, leaseholders, were the third
respondents.
C Fay
(instructed by P H Sturrock, solicitor to Broxbourne Borough Council) appeared
on behalf of the appellants; Harry Woolf (instructed by the Treasury Solicitor)
represented the first respondent; the second respondents were not represented
and took no part in the proceedings; and Viscount Colville of Culross QC
(instructed by Braby & Waller) represented the third respondents.
Giving the
first judgment at the invitation of Lord Widgery CJ, ROBERT GOFF J said: There
are before the court two matters brought by the Broxbourne Borough Council,
each arising out of the same decisions by the Secretary of State for the
Department of the Environment. The first is an appeal under section 246 of the
Town and Country Planning Act 1971 and the second is an originating motion
under section 245 of the same Act. Both arise out of decisions by the minister
on appeals to him against enforcement notices served by the appellant council
relating to the use of certain land in Hertfordshire.
The land in question
is an ‘L’-shaped piece of land called Doverfield, Goff’s Lane, Goff’s Oak in
the county of Hertfordshire. The site is about 3 1/2 acres in area. In the
north-east corner there is an access road about 200 ft long leading to Goff’s
Lane. The northern side of the site abuts on to the back gardens of houses on
Goff’s Lane and is separated from them by a close-boarded fence. To the east of
the site is a caravan site, to the south of which there is open land. The
remainder of the site is surrounded by allotments, woodland and farmland.
The history of
the site was the subject of detailed findings by the inspector following a
local inquiry which he held in April and May 1976 following the appeals against
the Enforcement notices. In his decision letter the minister accepted the facts
found by the inspector, and it is enough that I should refer to the summary of
those facts in the decision letter itself. It is there found that until 1960
the site was owned by a Mr Skeggs, who used it for the storage and cutting of
trees, logs and fencing posts. Part of the site was also used by a Mr Fletcher,
a tree-felling and tree surgery specialist, for the storage of planks and logs
and for cross-cutting and resawing timber, and part by a Mr Parks who was
concerned with tree surgery and site clearance and cut and trimmed trees for
firewood. In addition, Mr Clothier, a haulage contractor, used the site from
1958 as a yard and store for logs brought in from the forest. There is then
reference to use by Mr Symonds, who took over Mr Skeggs’ business in 1960, and
to its continued use until 1975, showing that the use was primarily for the
storage, sorting and grading of timber in the round.
On October 6
1972 there occurred an event of crucial importance in the case. On that date an
established use certificate was issued in respect of the site in the following
terms:
It is hereby
certified that the use of the above land and building for the storage, sawing,
resawing and disposal of timber in the round and the storage, maintenance, repair
and overhaul of vehicles and plant incidential thereto, was on the 3rd day of
October 1972 established within the meaning of paragraph (a) of section 94(1)
of the Town and Country Planning Act 1971.
Thereafter, as
is found (I quote from the minister’s decision letter): ‘Mr Fletcher, Mr Parks
and Mr Clothier remained on the site until 1975. When a workshop was erected in
1967 Mr Clothier moved his depot to the site. He worked as a subcontractor to
Mr Symonds and also on his own account. All the occupants of the site had
vehicles, plant and other equipment there.’
The next
crucial event occurred in 1974 when the site was sold to a company called St
Ouen Diamond & Fine Art Co Ltd. In June of 1975 that company leased the
site to Sir William Burnett & Co (Timber) Ltd, and subsequently it has been
used by Burnett as a bulk storage depot for timber planks. No timber in the
round is handled there, but occasionally sawing is done; the depot is used as a
buffer stock area to supply Burnett’s timber mill at Cuffley and is used for
the storage of planks in stacks for that purpose. It is clear that in point of
fact a material change did take place in 1975 following the change of
ownership. Substantial concrete roadways were completed by July 25 1975. These
consisted of a concrete road running south-west from the site entrance with
four concrete spur roads adjoining the road at right-angles on the western
side. The area between the spurs has been covered with hardcore. These concrete
roadways are now used by lorries transporting the timber planks to and from the
site, and the timber is now stacked on the hardcore area. In addition to the
roadways two buildings have been constructed. One is a wooden sectional
building of modest dimensions, and the other is a breeze-block extension which
was added on to the back of the existing workshop at the south-eastern corner
of the site.
As a result
of these new activities the inspector held in findings which were accepted by
the Secretary of State that: the character of the use has changed quite
dramatically. The former use had rural connotations with logs being stored on
what was predominantly a green field site stacked to a fairly low level. Now
the site has the appearance of an industrial timber yard with high rectangular
stacks of timber concentrated in a small area of the site serviced by concrete
roadways.
This change
led to complaints by the local residents. Following those complaints the
appellant council served four enforcement notices dated respectively July 28,
July 31, and September 1 1975 and January 13 1976. These were served on both
the second respondents (the freeholders) and the third respondents (the
leaseholders). They have been referred to as notices A, B, C and D. Notice A
was concerned with the construction of the concrete roadways and required them
to be broken up and the land to be restored to its condition before the
development took place within two calendar months. Notice B, which is by far
the most important notice in the case, is concerned with use of the land for
the purpose of the stacking and storage of planks of timber. It required the
respondents to discontinue that use within one month. Notice C was concerned
with the erection of the wooden shed and required its removal within one month.
Notice D was concerned with the breeze-block extension to the workshop and also
required its removal.
The second and
third respondents appealed against these enforcement notices, and the appeals
against notices A, C and D were on the grounds specified in subsections (a) and
(g) of section 88(1) of the Act. The appeals against notice B were on the
grounds specified in subsections (a), (b), (d), (f) and (g) of that subsection.
As I have
said, a local inquiry was held. The inspector investigated in great detail the
actual uses of the site before the events of 1975. He reported to the minister
on June 25 1976 and the inspector considered first the appeal against notice B.
His conclusion was that the change of use was so very marked as to constitute a
material change in the use of the site after January 1 1964. He accordingly
recommended that the appeal under section 88(1)(d) should fail. So far as the
appeal in respect of notice B under section 88(1)(a) was concerned, he
considered the present use was completely out of place in the approved green
belt, and, having considered also the weight of traffic and the inadequacy of
the access road, his recommendation was that the application for planning
permission should be refused. On the assumption that those recommendations were
accepted, he also recommended that the appeals in respect of notices A and C
should likewise be dismissed, but he recommended that the appeal in respect of
notice D should in any event succeed on the grounds that the extension, which
was to cover an oil tank, was there on the grounds of safety and was
inoffensive.
The Secretary
of State, having considered the inspector’s report, decided to quash all four
notices. He decided that the appeal in respect of notice B should succeed on
ground (d) in section 88(1)–ie that it was protected by time. But he declined
to grant planning permission in respect of that development. He also allowed
the appeals in respect of notices A and C as well as notice D, in each case
granting planning permission for the retention of the development.
The appellants
now appeal against the Secretary of State’s decision in respect of notices A, B
and C, but not D, and it is common ground that, if the appeal on notice B is
successful, then they will also succeed in respect of notices A and C. Conversely,
if they fail on notice B, they will fail on the other two. Therefore, notice B
is the crucial notice.
Before dealing
with the merits of the appeals, there is one procedural point I have to
mention, and that is that the appellants appeal both under section 246 of the
Act and by originating motion under section 245. That is because they are
asking for the planning permission granted by the Secretary of State in
relation to notices A and C under section 88(5)(a) of the Act to be quashed,
and such a matter is expressly referred to in section 245(3) by reference to
section 242(3)(f) of the Act. By an order made on May 16 1978 this court
ordered that the originating motion should be heard immediately after the
appeal.
I now come to
the substance of the appeal. In order to understand the point at issue it is
necessary to refer to section 94 of the Act of 1971, which is concerned with
certification of established uses, and in particular subsection (7) of that
section, which provides as follows:
An
established use certificate shall, as respects any matters stated therein, be
conclusive for the purpose of an appeal to the Secretary of State against an
enforcement notice served in respect of any land to which the certificate relates,
but only where the notice is served after the date of the application on which
the certificate was granted.
The crucial
passage in the Secretary of State’s decision letter is contained in paragraph
12 of that letter, which reads as follows. I omit the first sentence. The
paragraph then continues:
It is also
agreed that the established use certificate is conclusive for the particular
use specified in it and that the main issue before the Secretary of State is
whether the present use is so different in degree and character from the use
specified as to constitute a material change of use. Section 94(7) of the 1971
Act states that the established use certificate shall ‘be conclusive for the
purpose of an appeal . . . against an enforcement notice’ as respects any
matters stated therein. The view is taken that in the light of this provision
the Secretary of State must accept that the use of the site before January 1
1964 was as described in the established use certificate and it is not open to
him to consider the nature of the use in respect of which the certificate was
sought. (Had he been able to reopen the matter, however, he would have taken
account of the fact that the former use of the site had rural connotations,
being described as a forestry contractor’s yard and depot in the application
for the certificate.) It is concluded
that the present use of the land for the purpose of the stacking and storage of
planks of timber is not so different from that described in the established use
certificate as to constitute a material change of use of the land. The use
described was established before 1964 and the appeals succeed on ground (d).
The notice will be quashed accordingly.
It is to be
observed that the Secretary of State’s approach to the matter was, therefore,
very different from that contained in the recommendations of the inspector. The
inspector’s report contained elaborate findings of fact relating to the use of
the land before 1975. However, it being accepted that there was no change of
use between the established use certificate in 1972 and the events of 1975, the
Secretary of State approached the matter on an entirely different basis. He
simply had regard to the use as specified in the established use certificate
and the present use of the land, and asked himself the question whether the
present use of the land for the purposes of stacking the storage of planks of
timber was so different from the use specified in the certificate as to
constitute a material change of use of the land. That question he answered in
the negative. The evidence as to the actual use of the land before 1975 he,
therefore, treated as wholly irrelevant.
Mr Fay for the
appellant council submitted that in so approaching the matter the Secretary of
State erred in law. He submitted that the proper course for the Secretary of
State was to compare the existing use with the last preceding use as it in fact
existed in order to decide whether there had been in fact a material change in
the use of the land. Section 94(7) constituted, he submitted, no bar to such an
inquiry because that subsection provided only that an established use
certificate should be conclusive as respects any matter stated therein, and the
certificate in question was wholly silent as to the scope and intensity of the
use at the time it was issued.
In my
judgment, this criticism of the Secretary of State’s approach is not well
founded. The purpose of an established use certificate is clear. It does not
render a use lawful. To that extent it is unlike a grant of planning
permission. Therefore, if, for example, the use specified in an established use
certificate is abandoned, it cannot lawfully be resumed.
from an enforcement notice. It, therefore, precludes the necessity of
investigating events which may have occurred many years before as to what was
the established use as at the date of issue of the certificate. If Mr Fay’s
submission were to be correct it would deprive an established use certificate
of all efficacy. In each case it would be necessary to investigate the actual
use at the date of the issue of the certificate in order to ascertain whether
there had in fact been a material change of use, a fresh investigation which it
was the object of the established use certification procedure to obviate.
Nor, in my
judgment, does it assist Mr Fay to argue that the certificate specifies no
particular level or intensity of activity and, therefore, to submit that the
level or intensity of activity was not a matter stated in the certificate and
so was a matter on which the certificate was not conclusive. The short answer
on this point is that the use was a matter stated in the certificate. Since no
limit was placed upon either the part of the site to be so used or the
intensity of the use, the use so specified was without limit as to space within
the site or intensity. Mr Fay cannot, therefore, now complain that the
Secretary of State has erred in law in holding that there has been no material
change of use by reason of the area of the site now employed or the present
intensity of the use.
It follows, in
my judgment, that the Secretary of State applied the correct test in the
present case. It is clear from the decision letter that the Secretary of State
was somewhat unhappy as to the conclusion he felt bound to reach, having regard
to the findings of fact in the inspector’s report, which appear to indicate
that the use by the appellant council’s predecessor in title specified in the
established use certificate was somewhat wider than the use actually enjoyed at
the time of the issue of the certificate. Indeed, as the argument proceeded, it
became only too clear that what Mr Fay was seeking to do was to invite the
court to read the certificate in a qualified manner. But the duty of the
minister and of this court is to apply the correct legal principles, and, if it
were not to do so and were to accept Mr Fay’s submissions, the result would be
that established use certificates would be deprived of their proper force,
their purpose would be undermined, and indeed purchasers of land in respect of
which there existed established use certificates might be misled into paying
too high a price for the land.
For these
reasons, in my judgment, the appeal under section 246 should be dismissed. It
must, therefore, follow that the originating motion under section 245 should
likewise be dismissed. But the case has a moral. It demonstrates that planning
authorities should exercise great care concerning the terms of established use
certificates which they issue. If a certificate is not drawn with care and
expressly limited to the precise use in question, then its issue can lead to
the consequence that the authority may, through its own act, find itself
thereafter precluded from preventing a use for which planning permission would
not have been granted simply because the certificate had been issued in terms
wider than were necessary.
Agreeing
KILNER BROWN J said: I would merely wish to add a word or two with reference to
what my Lord has described as ‘the moral’ to be drawn from this case. In my
judgment, it does underline the duty of a planning authority to consider with
care whether or not the proposed terms of the certificate sufficiently
particularise the existing use. The object of the exercise contemplated by
section 94 is not only to avoid an examination of the history and existing fact
but also to identify both the nature and the extent of the use. This
demonstrates that it is clearly important to be careful not only in order to
avoid the conclusive effect of a loosely and widely phrased certificate but
also, as all counsel have agreed and as my Lord has pointed out, for the
assistance of a prospective purchaser.
For the
reasons given by my Lord, with which I agree, I concur.
LORD WIDGERY
CJ also agreed.
The appeal under section 246 and the originating
motion under section 245 of the Town and Country Planning Act 1971 were both
dismissed. The court awarded one set of costs only, to be paid to the first
respondent, the Secretary of State.
