Town and Country Planning Act 1971–Appeal by planning authority against decision of Secretary of State excluding part of the ground floor of a property from an enforcement notice served by authority–Beauty clinic and sauna bath business–Part of ground floor used for this purpose before January 1 1964, but business later spread to the whole of ground floor without planning permission–Authority’s enforcement notice extended to whole ground floor–Exclusion by Secretary of State of part in use before 1964 challenged on the principle that the planning unit was the whole ground floor–Held that Secretary of State acted correctly by approaching the case on the basis of one planning unit but exercising his powers under section 88(5) by varying the terms of the notice in favour of the affected party
In this
appeal, which concerned an enforcement notice relating to the use of the ground
floor of 8 West Hampstead Mews, London NW6, the appellants were the London
Borough of Camden, the first respondent was the Secretary of State for the
Environment and the second respondent was Allen Marston, who had an interest in
the property the exact nature of which was not disclosed to the court.
R Carnwath
(instructed by F Nickson, town clerk, Camden) appeared on behalf of the
appellants; Simon D Brown (instructed by the Treasury Solicitor) represented
the first respondent; J Sullivan (instructed by Gerald A Waller & Co)
represented the second respondent.
Giving
judgment, LORD WIDGERY CJ said: This is an appeal under section 246 of the Town
and Country Planning Act 1971 brought by the Mayor, Aldermen and Burgesses of
the London Borough of Camden, who are the appellants, and the respondents are
the Secretary of State for the Environment and Mr Marston, who no doubt has an
interest in the land. We have not had the details of what that might be.
The property
around which this issue revolves is 8 West Hampstead Mews. It is an
old-fashioned house. We are concerned only with the ground floor because the
upper floors are used for normal residential purposes and require no comment.
On the ground
floor, which is a substantial area capable of housing seven motor cars, there
is as to one half of the area what is described in the plan accompanying the
papers as a clinic, storage and parking. That means storage for the clinic, to
which reference will be made in a moment, and parking. As regards the other
half of the area–the eastern half of the area–there are various partitions
which can be separated to give small rooms. Within this area there was at most
of the essential time, if not all of it, a business being carried on by a
beauty clinic and sauna bath, and in that half one finds, as I say, partitions
which provide for a changing room, sauna, a reception room, a bath, a clinic
and so on.
The
introduction of the clinic and all that went with it was not altogether popular
with the other residents in West Hampstead Mews, and in due course enforcement
action was taken at the instance of the planning authority. The enforcement
notice is dated September 30 1974. It recites that it appears to the London
Borough of Camden (the planning authority) that there has been a breach of planning
control. It identifies the land in which this breach of control has occurred as
the ground floor of 8 West Hampstead Mews. It goes on in paragraph 3 to
describe the conduct which is alleged to constitute a breach of planning
control, and that is described as ‘the making of a material change in its use
from use for workshop and garage purposes to use for the purposes of a beauty
clinic and sauna bath such development having been carried out without the
grant of planning permission required in accordance with Part III of the Town
and Country Planning Act 1971.’ Then
provision is made for steps to be taken to remedy the breach of planning
control referred to, and the planning authority in that context require the
discontinuance of the use of the land for the purposes of a beauty clinic and
sauna bath.
Planning
authorities do not always get 100 per cent accurate information when they start
enforcement action, and it may be that the planning authority in this case were
misled by the information they received. Now, after the event, it is quite
obvious that the planning authority were not entitled to insist on a total
discontinuance of the sauna bath use, if I may so describe it, because it had
been carried on in respect of a substantial part of the ground floor for a
number of years, and in particular since the period prior to January 1 1964,
the significance of that date being that under section 88 of the Act uses which
were begun before January 1 1964 are, broadly speaking, protected from
enforcement action. Since the sauna bath use was in respect of part of the
premises at all events before that date, there was, as one might say, something
wrong in the conclusion which the planning authority had reached.
Notice of
appeal was put in by the owners of the building, and this appeal (which, of
course, was to the Secretary of State) was in due course the subject of an
inquiry by an inspector. The inspector reached very detailed conclusions, which
I do not find it necessary to go into because all the provisions of the inspector’s
report, so far as material to this case in my judgment, can be taken from the
decision letter which comes in a moment.
First of all,
one ought to look, I think, and see what the grounds of appeal to the Secretary
of State were before we look at his decision letter and examine the matter in
greater detail. I take time to draw attention only to the fact that the
complaint made in the notice of motion, and the only complaint made in the
notice of motion, is that the planning unit to which the first respondent
should have had regard for his decision was the whole of the ground floor of
the said premises. It goes on to say: ‘The first respondent failed to have
regard to the said planning unit and in particular failed to consider whether
there had been a material change of use of the said planning unit since
1963.’ What is being said there is
familiar enough to those who know the jargon of this subject. What is being
said is that, in deciding whether there was a material change of use, the
Secretary of State, or rather at first instance the borough council, and later
the Secretary of State, should have had regard to the whole of the ground floor
because that was chosen as the planning unit by the language of the notice of
motion. Complaint is made in the terms which I have already read that the
matter was not judged on the footing that the planning unit was the whole of
the ground floor but on some other basis.
When the
matter came under close investigation, as it naturally did in the course of the
inquiry, some of the previously unreflected detail came to light. In
particular, as I say, there came to light the fact that the sauna bath use had
started on one half of the ground floor of the building before it started on
the other half, and naturally arguments then developed as to how that situation
was to be coped with, and indeed it laid some emphasis in this case on
ascertaining what the planning unit in question was.
The two
paragraphs which deal with the Secretary of State’s reaction to these problems on
receipt of the report of his inspector are paragraphs 10 and 11 of his decision
letter [APP/5008/C/74/1941 and D/75/61]. Paragraph 10 reads as follows: ‘While
it was suggested that some other business use persisted in the eastern part of
the ground floor, on balance the evidence that the use extended throughout this
section before the end of 1963 is accepted.’
The Secretary of State is accepting there was some use which went beyond
the limit of the eastern part of the ground floor. He went on to say:
Although it
has not been satisfactorily shown that the beauty clinic and sauna has been
continuously in active operation since that time there is no evidence that
there has been any other intervening use in the area which it occupied. It is
considered, therefore, that the use of the eastern part of the ground floor as
a beauty clinic and sauna began before the end of 1963 without the grant of
planning permission and has subsisted since that time, and the established use
certificate appeal and the appeal on ground (d) against the enforcement notice
succeed in part. The enforcement notice will be corrected to exclude this part
of the site.
The Secretary
of State is recognising that the sauna bath use in the eastern half of the
building antedated the magic date January 1 1964 and took the view that that
could be put right by releasing from the effective enforcement notice that part
of the ground floor which had a pre-1964 use. Whether that was a very elegant
way of getting over the difficulty is a matter which anyone could have an
opinion about, but what it did in fact was to ensure that those who were
interested in the sauna bath use on the eastern half of the ground floor were
fully protected to reflect the period of time during which that activity had
been carried on.
The Secretary
of State goes on in even greater detail with his conclusions on this point when
we come to paragraph 11:
With regard
to the garage (western) area, it has concluded that, apart from a possible
storage use in and after 1966, the use did not extend to that area until about
1968. From that year onwards the ground floor was gradually redeveloped by the
installation of a pool, new sauna and cubicles as shown in plan E attached to
the inspector’s report, and the beauty clinic and sauna spread to include the
former garage (western) part. Until that time the eastern and garage (western)
parts of the ground floor were separate units for planning purposes: when the
business of a beauty clinic and sauna replaced the existing use this was a
material change of use of the western or garage portion of the ground floor. .
. .
The Secretary
of State there uses the phrase two planning units. I question, with all
respect, whether he meant to use the phrase in a technical sense in that way.
No previous admission by him has been made that two planning units were
involved here, and it may be that the explanation of those words is not in any
event to have a literal or technical meaning.
But look at
what has been done and see the situation as it now exists. We have the
Secretary of State accepting and upholding the enforcement notice which treated
this matter as being one planning unit on the ground floor. We find that there
was in fact a difference between the two halves of the ground floor in terms of
the date when the sauna bath use began in each, and we find the Secretary of
State, having discovered that the use began at a protected date in respect of
one half and an unprotected date in respect of the other, amending the
enforcement notice so as to ensure that enforcement action would not be carried
on against that part of the ground-floor use which has the protection of being
used since before 1964.
That that
produces a satisfactory explanation is, in my view, beyond argument. At least
it produces a sensible, commonsense approach to this rather complicated
problem. The only question that troubles me in the end is whether the Secretary
of State had adequately dealt with the somewhat technical but highly practical
problem of whether there was one planning unit or two, notwithstanding the fact
that the sauna bath use began at different dates in the two halves. I think
myself that the question of whether there was here a double planning unit or a
single one is an open matter. I think it is clearly one which is very largely a
question of fact. I have the greatest hesitation in thinking that we ought to
take a different view from the Secretary of State on this question of whether
there was one planning unit or more. I am not at all satisfied that the
appellants here are entitled to a decision that there was more than one unit,
and I am content to think that the parties will be adequately protected if we
leave the matter as it is now.
I emphasise that
the only possible way in which those concerned might have been entitled to some
further protection would be if I am wrong in the conclusion I am now
expressing, that we cannot set aside the Secretary of State’s decision on this
point, which is a point of fact. In the event, those concerned with the
existing rights having been adequately protected by the amendment of the
enforcement notice, it seems to me there is little more substance in the
complaint now outstanding, and I would simply dismiss the appeal.
KILNER BROWN J
agreed.
ROBERT GOFF J,
also agreeing said: I will just add a few words, if I may, to what my Lord, the
Lord Chief Justice, has said.
The first
ground of appeal is that ‘the planning unit to which the first respondent
should have had regard for his said decision was the whole of the ground floor
of the said premises.’ In my judgment,
as I read paragraph 11 of the decision letter, the Secretary of State did have
regard to the whole of the ground floor of the premises as at the date of the
enforcement notice. I say that because, when referring to separate units, he
uses the words ‘until that time,’ which was 1968 so far as concerned the
separate units which he was considering. After that date there was a single
unit, and, as I understand it, the Secretary of State was making his decision
on the basis that there was a single unit at the date of the enforcement
notice. In my judgment, therefore, there was no error of law as alleged in the
first ground of appeal.
What the
Secretary of State did, in fact, as I understand his decision, was this.
Approaching the matter on the basis of a single unit, he nevertheless exercised
the power which he had under section 88(5) of the Act to give directions for
giving effect to his determination, including, where appropriate, directions
for varying the terms of the notice in favour of the appellant. Although Mr
Carnwath submitted that he could not do that because there was no appeal under
section 88(1)(f), I can see no reason why the Secretary of State should not
exercise the power in section 88(5) on an appeal under section 88(1)(d). That
is precisely what the Secretary of State did, in my judgment, and there was no
error of law on his part in so acting.
With regard to
the separate ground of appeal added later, which was that the Secretary of
State erred in law in upholding an appeal under section 88(1)(d) in respect of
the eastern part of the building notwithstanding his conclusion that the second
respondent had failed to show that the beauty clinic and sauna had been in
continuous active operation in that part since before the end of 1963, I simply
say this. The Secretary of State, in paragraph 10 of the decision letter,
concluded as a matter of fact that the use as a beauty clinic had subsisted
since 1963, and, therefore, he made a conclusion as a matter of fact which is
not open to review by this court.
I would hold
that that ground also fails.
For those
grounds I respectfully agree with the decision of the Lord Chief Justice.
The appeal was dismissed, the appellants to pay the
costs of both respondents. Leave to appeal was refused.
