Enforcement notice prohibiting change of use from warehouse to cash-and-carry store–Planning officer’s opinion of supply of land may be treated as evidence though unsupported by documentary sources–Impact of cash-and-carry business on other shops etc in the district is a relevant consideration for the planning authority or Secretary of State–Owners’ appeal dismissed
This was a motion
by Collis Radio Ltd, of St John’s Square, Wolverhampton, and Eclipse Radio
& Television Services Ltd of Park Lane, Halesowen, Worcestershire, to remit
a decision of the first respondent, the Secretary of State for the Environment,
dismissing an appeal by the two companies against an enforcement notice served
on them by the second respondents, Dudley Borough Council.
Mr I Glidewell
QC and Mr R J Moshi (instructed by Simpson, Silvertown & Co, agents for
Betesh & Co, of Manchester) appeared for the appellants, and Mr H K Woolf
(instructed by the Treasury Solicitor) represented both respondents.
Giving
judgment, LORD WIDGERY said that the appellants owned and occupied land in
Halesowen covering an area of 18,000 sq ft. There was a large building on the
land, and the surrounding ground was used as a car park. The site was on land
allocated for industrial development. The appellants had had planning
permission to use the building as a warehouse since 1967, and they used it to
store electrical stock. In 1972 they applied for permission to change the use
of the warehouse to a retail cash-and-carry business. The retail customers
would look at the electrical goods at the warehouse, pay cash for them and
carry them away. This selling method would allow the appellants to sell their
goods at a significantly lower price than ordinary retail shops. There was some
muddle over this application of 1972; the local planning authority said that it
had been refused, but the appellants claimed that they had received no notification
of any refusal. In any event, the appellants had now been using the site as a
cash-and-carry warehouse for the last 18 months, and the local planning
authority served an enforcement notice requiring the warehouse to be returned
to its former use. The appellants appealed to the Secretary of State, who,
after a public inquiry, dismissed the appeal. The appellants now came to the
Divisional Court, where of course they had a right of appeal only on points of
law. What they said was that the Secretary of State’s decision letter was
erroneous in two respects. First, the Secretary of State found that there was a
shortage of land for industrial development in the area, and that what there
was would soon be used up. The appellants said that this was unsupported by
evidence. Secondly, the Secretary of State had found that a proliferation of
cash-and-carry warehouses would affect other commercial interests in the
district, and the appellants said that this was not a material consideration.
So far as the
first point was concerned, the borough council’s planning officer had given
evidence at the inquiry, and expressed the view that there was only a small
amount of land available for industrial use, which land was not likely to
remain available for long. His opinion was unsupported by plans, schedules or
any documents, and counsel for the appellants argued that his evidence was
merely an unsupported assertion. He (his Lordship) was unable to accept this
argument. The planning officer lived with the situation day after day. He knew
whether the supply of industrial land was drying up or not. He could speak from
his special knowledge of the area. If he said that there was very little
industrial land left and that this was likely to be used up in the near future,
then this was some evidence on which the Secretary of State could base his
decision. What weight he attached to that evidence was entirely up to him, and
the court, acting on well-known principles, was unable to interfere with his
decision on the ground put forward.
The second
issue was the Secretary of State’s finding that a proliferation of development
like cash-and-carry warehouses in the area would be likely to have a severe
effect on the Halesowen shopping centre. The inspector thought that if planning
permission were given for shopping purposes to one firm in the industrial
development area, similar applications would follow from other firms and these
would be difficult to refuse once one application had been granted. This view
was supported by evidence that enforcement orders had been served by the
council on two similar premises in the area which had been changed to retail
cash-and-carry warehouses. Counsel for the appellants argued that the
consequences to other sites if planning permission were given on one application
was not a proper consideration for the planning authority. He accepted that
granting planning permission to site A might affect site B when there was a
close relationship between them, but he did not accept that the prospect of
proliferation of similar use in this case was a proper consideration for the
local planning authority or the Secretary of State. He (his Lordship) was quite
unable to agree. Planning was something that dealt with locations, not with
individual sites. It was of the greatest importance when considering a single
planning application to take into account what the consequences, or
‘side-effects,’ of granting it would be. An application for planning permission
for site A had to be judged according to the consequences to sites B, C and D;
this was the most elementary planning procedure.
ASHWORTH and
MICHAEL DAVIES JJ agreed, and the appeal was accordingly dismissed.
