Town and Country Planning Act 1971 — Appeal under section 246 against decision of Secretary of State upholding enforcement notice served by local planning authority — Applicant was tenant of ground floor and basement of a building where he operated a takeaway hot-food business, a restaurant and, up to a certain date, a shop — After some correspondence he made an application for planning permission and received from the authority a letter in reply informing him that his proposal to use part of the rear of the ground-floor shop as a takeaway for hot food and a restaurant did not constitute development and did not require planning permission — Subsequently, however, he was served with an enforcement notice requiring discontinuance of the use of the building as a restaurant and hot-food takeaway — Appellant appealed to the Secretary of State and there was a public inquiry — Inspector dismissed appeal but varied the enforcement notice by adding an exception in respect of the use authorised by the letter from the planning authority above mentioned — Appellant submitted that the notice as thus varied was bad for uncertainty; it was impossible for the applicant to deduce from it exactly what he was allowed to do — Held that the inspector’s amendments did not cure the invalidity of the notice and the matter must be remitted to the Secretary of State — Appeal allowed
This was an
appeal by Ehsan U1 Choudhry from a decision of the Secretary of State for the
Environment dismissing his appeal against an enforcement notice served on him
by Westminster City Council in respect of the use of the ground floor and
basement at 102 Queensway, London W2.
David
Neuberger (instructed by Nicholls & Co) appeared on behalf of the
appellant; J C Harper (instructed by Miss M Butts, City Solicitor, Westminster
City Council) represented the second respondents, the city council; the first
respondent, the Secretary of State, was not represented and took no part in the
proceedings.
Giving
judgment, STEPHEN BROWN J said: This is an appeal from a decision of the
Secretary of State for the Environment dated May 28 1981 whereby he dismissed
the applicant’s appeal against the enforcement notice which had been served by
the second respondents, the Westminster City Council, subject to the notice
being amended within the powers of the minister under section 88 of the Town
and Country Planning Act 1971.
The history of
this matter can be shortly stated. The applicant, Mr Choudhry, is the occupier
of the ground floor and basement of premises at 102 Queensway, London W2.
Apparently he has been a tenant of that part of 102 Queensway, W2, since about
1966. It is relevant to state that the three upper floors of 102 Queensway are
completely separate and are used as offices. The applicant has no connection
with them at all. He has carried on, on the ground floor of those premises
since about 1966, three separate uses in his business. He has operated a
takeaway hot-food business, a restaurant, and in addition — certainly until a
date after the beginning of 1978 — a shop.
In November
1977 he submitted what was intended to be an application for planning
permission in respect of part of the ground-floor shop, so described, for use
as a takeaway hot-food and restaurant business. That followed consultation with
the local planning authority and letters which had passed between them and
which had apparently been prompted by the activities of a local residents’
society who were objecting to the restaurant and takeaway business at those
premises. On September 7 1977 the local planning authority wrote a letter to Mr
Choudhry, the applicant, saying:
It would
appear from information which you have supplied . . . that within the last
three or four years you have offered a takeaway hot-food service
The use is accordingly unauthorised, and I would ask you to complete the
enclosed application forms in an attempt to regularise the position.
Your early
reply would be appreciated.
That is how he
came to complete and send to the planning authority the application which
appears in the agreed bundle of documents. The planning authority acknowledged
that application for use of part of the ground-floor shop as a takeaway
hot-food shop and restaurant, and asked that he should provide details of the
use of the property since 1972. I should interpolate that in 1972 a new use
classes order came into effect which required a use for ‘takeaway’ purposes to
be the subject of a separate permission — it would no longer be included in the
shop use. Previously it would have been covered by the use of the premises as a
shop.
Mr Choudhry
replied in a letter dated January 6 1978 saying:
In 1970 we
made the proper kitchen in the basement of the shop under the approval of and
supervision of the Health Authority.
Since then no
change has been made to the shop and we are running the same business.
We hope to
have a favourable early reply to our application.
In reply to
that letter, on January 30 1978, the local planning authority wrote the
following letter to Mr Choudhry:
Your
application dated November 10 1977 has been considered by the council which has
decided that the proposal to use part of the rear of the ground-floor shop as a
takeaway hot-food shop and restaurant does not constitute development and that
the permission of the council under the above-mentioned Act is not required.
It should be
observed that Mr Choudhry’s application did not, in fact, refer to the ‘rear’;
it merely referred to use of ‘part of the ground-floor shop’ as a takeaway
hot-food shop and restaurant. That was the use described. In the letter giving
particulars of use since 1972 Mr Choudhry set out the planning use history as
from 1970: ‘Since then no change has been made to the shop and we are running
the same business.’ It is quite possible
that the use of the word ‘shop’ was not there being used as a term of art, or
with the precision which the use classes of the town and country planning
legislation would require. However, the letter of the planning authority of
January 30 1978 said in terms: ‘the council . . . has decided that the proposal
to use part of the rear of the ground-floor shop as a takeaway hot-food shop
and restaurant does not constitute development and that the permission of the
council under the above-mentioned Act is not required.’ The Act referred to is, of course, the Town
and Country Planning Act 1971.
On August 12
1980 the local planning authority served an enforcement notice on the applicant
and that notice specified in the first schedule the use which it was alleged
was in breach of planning control. That is set out in these terms: ‘beginning
the use of the land described in the second schedule hereto for the purpose for
which the same is now used, namely as a restaurant and takeaway hot-food use’.
The second schedule described the premises or land in question as 102
Queensway, London W2. It did not in fact limit it to the ground floor and
basement, but referred to the whole of the premises. The third schedule set out
the action which was required to be taken by the enforcement notice in these
terms: ‘(a) Discontinue the use of the land described in the second schedule
hereto for the purposes specified in paragraph (a) of the first schedule
hereto. (b) Remove from the said land all fixtures, furniture and equipment
brought to the premises for the purpose of the unauthorised use.’
Mr Choudhry
appealed against that enforcement notice to the minister. The grounds of appeal
in the notice of appeal were those set out in section 88(1) paragraphs (a),
(b), (f) and (g) of the Town and Country Planning Act 1971. Mr Choudhry also
set out in the notice of appeal the facts upon which he relied. The first
matter was the letter of January 30 1978 (to which I have referred) which the
applicant contended did in fact give him the use, at any rate as to part of the
premises, which it was now being sought to enforce by the enforcement notice
against the whole of the premises. In paragraph 2 he said that the use of the
premises had not altered since that letter, and he claimed that the enforcement
notice was not valid.
A public
inquiry was held in due course, and the inspector was charged with the task of
determining the matter on behalf of the minister. In the course of his report
he dealt with the point taken as to the validity of the notice and the
submissions made to that effect at the inquiry. He said: ‘I recognise that whatever
use rights your client may have must be protected and I put the matter in those
terms because there is a vagueness and uncertainty about the council’s letter
of January 30 1978 in that, failing an accompanying plan, I could not ascertain
what is meant by ‘the rear of the ground floor’ . . .’. He concluded that
paragraph by saying: ‘However this may be, I am of the opinion that your
client’s rights would be adequately safeguarded by an exclusion clause in the
requirements of the notice reciting the terms of the letter dated January 30
1978. I propose to take this course of action using ground of appeal 88(1)(f)
of the 1971 Act.’ He concluded that in
1971 there was a mixed use comprising a restaurant, a takeaway service and a
retail shop.
The present position
is that the ground floor is used as to approximately half of its area as a
restaurant, while the remainder is used as a hot-food takeaway service. He
found that there is, in fact, no shop use. This was confirmed on inspection. In
his formal decision he directed that the notice be varied by substituting,
first, for the words ‘102 Queensway, London W2’ in the second schedule, the
words ‘the ground floor of 102 Queensway, London W2’; and in the third schedule
he directed that the requirement of the notice be varied by adding to paragraph
(a) the words ‘except in so far as the use may be authorised by a letter from
the council dated January 30 1978’. He also enlarged the period for compliance
from 12 weeks to 12 months. The inspector said: ‘Subject to these variations I
hereby dismiss your appeals, uphold the enforcement notice and refuse to grant
planning permission on the applications deemed to have been made under section
88(7) of the 1971 Act.’
In the appeal
to this court from that decision of the inspector on behalf of the minister, Mr
Neuberger, for the applicant, argues that the enforcement notice as it was
served originally was hopelessly bad inasmuch as all three schedules were
defective and misleading. He accepts in so far as the second schedule is
concerned that it is capable of amendment by the inspector in the manner in
which he did in fact amend it so as to refer to the ‘ground floor’ of 102
Queensway. But Mr Neuberger submits the requirement of schedule three as
proposed to be amended by the inspector, by adding the words ‘except in so far
as the use may be authorised by a letter from the council dated January 30
1978’, was not a valid amendment which could cure the otherwise defective
notice. Mr Neuberger submits that it is bad for uncertainty and he relies upon
paragraph 14 of the inspector’s report, to which I have referred, where the
inspector says in terms ‘I recognise that whatever use rights your client may
have must be protected and I put the matter in those terms because there is a vagueness
and uncertainty about the council’s letter of January 30 1978 in that, failing
an accompanying plan, I could not ascertain what is meant by ‘the rear of the
ground floor’ and even more would I have difficulty with ‘part of the rear of
the ground floor’.’
Mr Neuberger
submits that it would be quite impossible from the enforcement notice as
amended by the inspector for the applicant or any other person to deduce what
was required to be done. The applicant would be at risk of criminal prosecution
if he did not meet the wishes of the local planning authority. They might act
on that notice considering that it meant something different from that which Mr
Choudhry understood. So it is contended that although the inspector plainly has
power to amend an enforcement notice, the amendment which he has purported to
make does not cure the essential and initial defect of this notice. Counsel
invites this court to quash the decision of the inspector and to remit it for
further consideration. This might well involve a further inquiry.
On behalf of
the planning authority, Mr Harper realistically acknowledges the practical
difficulties which arise in relation to this enforcement notice in determining
exactly what planning rights the applicant should have reserved to him. Mr
Harper recognises that on the basis of the inspector’s finding (in his
conclusion of facts which I have already referred to), it must be accepted that
there was an existing use right for a mixed use comprising a restaurant and a
takeaway service and a retail shop use as from 1971 which, of course, is
immediately before the new Use Classes Order of 1972 came into effect.
The submission
of the planning authority is that this is a case where there were three
planning uses, none of which was ancillary to the other. These were a
restaurant, takeaway hot-food counter, and a shop. The breach of planning
control which the enforcement notice was designed to deal with was the
disappearance of the shop use and the encroachment into that particular area of
the restaurant and takeaway service.
I have been
referred to a number of authorities. Mr Harper relies upon the principle which
Brightman J, as he then was, set out in the case of Burdle v Secretary
of State for the Environment [1972] 1 WLR 1207. At p 1212 the learned judge
considered the position where there were multiple uses of a particular planning
unit. Adopting the learned judge’s approach, which is set out at G on p 1212,
Mr Harper submitted that this case could be brought within the second category
of a situation which the judge was there dealing with, where he says that:
It may
equally be apt to consider the entire unit of occupation even though the
occupier carries on a variety of activities and it is not possible to say that
one is incidental or ancillary to another. This is well settled in the case of
a composite use where the component activities fluctuate in their intensity
from time to time, but the different activities are not confined within
separate and physically distinct areas of land.
What Mr Harper
submits is that, in fact, the amendment which the inspector purported to make
to the notice did sufficiently and properly protect the rights of the applicant
based on the principle which is set out in the case of Trevors’ Warehouses
Ltd v Secretary of State for the Environment (1972) 23 P & CR
215. He submits that in this case it is not possible specifically to define in
the physical sense the areas of use, and accordingly, while practical
difficulties might ensue, the amendment made by the inspector did meet the
requirements of the Act and did sufficiently protect the rights of the
applicant. He submits that the notice is therefore good. He has invited me to
consider in respect to the inspector’s second amendment a further amendment
which he (counsel) proposed at the inquiry but which, apparently, was not
accepted. This would involve inserting the word ‘solely’ in the first schedule
and adding other explanatory words in relation to the third schedule.
It is to be
observed that when Brightman J was considering the problem of composite uses in
the case of Burdle v Secretary of State for the Environment, he
said, in regard to the second category to which I have referred, that one can
consider the entire unit of occupation even though the occupier carries on a
variety of activities and it is not possible to say that one is incidental or
ancillary to another. But he did go on to say: ‘This is well settled in the
case of a composite use where the component activities fluctuate in their
intensity from time to time, but the different activities are not confined
within separate and physically distinct areas of land.’
It seems to me
that there is a difference in the present case because the wording of the
planning authority in their letter of January 30 1978 clearly indicated that it
was possible to set physical limits to the area of permitted use. They
expressed it in the phrase ‘part of the rear of the ground-floor shop as a
takeaway hot-food shop and restaurant’. If a plan had been annexed to that
letter it would have been capable of definition. Of course, the inspector at
paragraph 14 of his report set out the difficulties which he found in
interpreting the letter in practical terms because of the absence of any plan.
It is equally true to say that if a plan had been annexed to the applicant’s
planning application this problem would not have arisen, or might not have
arisen.
In the result
I have come to the conclusion that although the inspector was plainly seeking
to protect the applicant’s existing use, and also seeking to implement his
finding of fact, his amendment did not cure the essential invalidity, as I find
it, of this enforcement notice. There is no question about it — indeed, Mr
Harper does not seek to say otherwise — that in its original form the notice was
not a good notice. But quite apart from the misdescription of the relevant
planning units, which obviously could be cured by an amendment, it did not in
fact safeguard the existing use rights of the applicant.
I have come to
the conclusion that the amendment which the inspector proposes does not save it
from its essential defects. In these circumstances, I feel that I must quash
the decision of the inspector made on behalf of the minister and remit this
matter to the minister for further consideration. I do not suggest or propose
any alternative amendment. I do not think it possible to achieve a proper
result by any particular form of words. He may have to conduct further
inquiries in order to deal with the situation.
The
application to this court succeeds. The decision of the inspector on behalf of
the minister is quashed and the matter is remitted for further consideration. I
should say that at this hearing the minister has not appeared or been
represented. He has left it entirely to the local planning authority.
The appeal
was allowed, with costs against the Westminster City Council.
