Town and Country Planning Act 1971, section 246 — Appeal against decision of inspector upholding an enforcement notice — Alleged breach of planning control was a material change in the use of the land in question without planning permission, namely, the holding of weekly Sunday markets with associated car parking — The steps required by the enforcement notice to be taken were to discontinue the use of the land for the holding of markets and associated car parking ‘on such Sundays which fall within the period of summer time in any year’ — The main issue raised by the appellants, who were the leasehold owners of the land, was that the enforcement notice was a nullity because of the ambiguity of the expression ‘the period of summer time’ — The inspector appeared to have recognised the ambiguity but did not go on to consider whether it rendered the notice a nullity — He proceeded to vary the notice, which he could not do if it was in fact a nullity, ie if there was no notice in existence to be varied — Held, applying the test laid down in Miller-Mead v Minister of Housing and Local Government, that the expression ‘the period of summer time’ was ‘hopelessly ambiguous and uncertain’ and consequently rendered the enforcement notice a nullity — That was sufficient to deal with the appeal, but the judge considered certain other criticisms of the inspector’s decision letter in case he (the judge) was wrong on the nullity point — However, he concluded that he would not have wished to remit the case to the Secretary of State because of any of the other points — Appeal allowed and case remitted with the opinion that the enforcement notice was a nullity
This was an
appeal under section 246 of the Town and Country Planning Act against the
decision of an inspector acting on behalf of the Secretary of State for the
Environment who had upheld an enforcement notice served by Cleethorpes Borough
Council in respect of the use of land belonging to the appellants, Dudley
Bowers Amusements Enterprises Ltd. The land in question was adjacent to
‘Wonderland’, North Promenade, Cleethorpes.
A E Telling
(instructed by D Jebb & Co, of Market Rasen, Lincolnshire) appeared on behalf
of the appellants; P Havers (instructed by the Treasury Solicitor) represented
the first respondent, the Secretary of State; the second respondents,
Cleethorpes Borough Council, were not represented and took no part in the
proceedings.
Giving judgment,
MR DAVID WIDDICOMBE QC said: This is an appeal under section 246 of the Town
and Country Planning Act 1971 against a decision of an inspector acting on
behalf of the Secretary of State for the Environment, upholding an enforcement
notice served by the Cleethorpes Borough Council in respect of the use of land
adjacent to ‘Wonderland’, North Promenade, Cleethorpes. An appeal lies to this
court on a point of law.
The
enforcement notice, dated August 5 1983, alleged a breach of planning control
consisting of ‘the making of a material change in the use of the land to use
for the purpose of holding weekly Sunday markets with associated car parking
without the grant of planning permission’. The steps required to be taken to
remedy the breach were ‘to discontinue the use of the land for the holding of
markets and associated car parking on such Sundays which fall within the period
of summer time in any year’.
The
appellants, who are the leasehold owners of the land, appealed against the
enforcement notice to the Secretary of State for the Environment. An inspector,
who was appointed to determine the appeal, held a local inquiry and issued a
decision by letter dated March 26 1984.
Validity
of the notice.
Mr Telling for
the appellants took four points, the first of which was that the enforcement
notice was a nullity. It will be convenient if I deal with that ground of
appeal first. Mr Telling referred to Miller-Mead v Minister of
Housing and Local Government [1963] 2 QB 196 for the proposition, which was
not disputed by Mr Havers for the Secretary of State for the Environment, that
a notice which does not specify the steps to be taken to remedy the alleged
breach of planning control is a nullity. Mr Telling contended that, in this
case, the steps specified were hopelessly ambiguous, to use the phrase in the
judgment of Upjohn LJ in Miller-Mead, and that the notice was therefore
void. He also referred to Metallic Protectives Ltd v Secretary of
State for the Environment [1976] JPL 166, in which an enforcement notice
was held, with the consent of the Secretary of State, to be a nullity for just
these reasons.
The inspector
dealt with the ambiguity argument as follows:
4 The evidence given on behalf of your clients
is that a market with associated car parking operated on the site on Sundays
from some time in March 1983 to the end of September 1983, and on the Easter,
Spring and August Bank Holiday Mondays in 1983. The evidence also shows that
your clients seek to operate the market on those days from the beginning of
March to the end of September each year. The period March to September is the
interval not covered by a planning permission dated May 6 1982, details of
which are given in para 16 below.
5 Whilst I do not consider that the scope of
the enforcement notice could be extended to take in the Bank Holiday market
use, it appears to me that the breach of planning control alleged in the notice
should specify the period during which Sunday markets on the site have operated
and during which it is the intention that they should operate, namely, in
months other than January and February and October to December. The
requirements of the notice, which as you have pointed out are ambiguous, in
that the period of summer time is not defined, could then be varied to reflect
the allegation.
6 With regard to the requirements, you have
referred to the cases of Metallic Protectives Ltd v Secretary of
State for the Environment [1976] JPL 166 and Copeland Borough Council
v Secretary of State for the Environment [1976] JPL 304.
7 The Council, while pointing out that the
authority to issue the notice required it to be issued ‘pursuant to all
relevant statutory provisions’, and saying that ‘summer time’ should be
interpreted as defined in the Summer Time Act 1972, agreed that the notice could
be varied as proposed above.
8 I cannot see that there would be any
injustice to your clients if the notice were varied as proposed. The scope of
the alleged breach would be reduced rather than extended, and the requirements
would relate to the breach as alleged. The Council’s position would not be
prejudiced by the variation in the allegation, since a Sunday market held on
the site between October and February would be in breach of condition 5
attached to the planning permission dated May 6 1982 and appropriate action
could be taken. The Council do not insist on, and you do not accept, their
interpretation of ‘summer time’, and I am not satisfied that, when issuing the
notice, they intended the words to be interpreted in that way rather than as
the period from March to September. I shall therefore vary the notice as
proposed.
Mr Telling
assured me, and I accepted from him, that he took the nullity point at the
inquiry. The inspector appears to have held that the requirements of the notice
were ambiguous, but he did not go on to consider whether such ambiguity
rendered the notice a nullity. He proceeded to vary the notice, which of course
he could not do if there was no notice in existence to be varied. He simply has
not dealt with Mr Telling’s initial point.
The test to be
applied was stated by Upjohn LJ in Miller-Mead at p 232 as follows:
I repeat,
therefore, that in my judgment the test must be: does the notice tell him
fairly what he has done wrong and what he must do to remedy it?
Earlier at p
226, the learned lord justice had said:
Supposing
then upon its true construction the notice was hopelessly ambiguous and
uncertain, so that the owner or occupier could not tell in what respect it was
alleged that he had developed the land without permission or in what respect it
was alleged that he failed to comply with a condition or, again, that he could
not tell with reasonable certainty what steps he had to take to remedy the
alleged breaches. The notice would be bad on its face and anullity.
The ambiguity
to which Mr Telling draws attention lies in the phrase ‘the period of summer
time’. What does this mean? It is common
ground between the parties that the language of the enforcement notice must be
given its ordinary or popular meaning and that extrinsic evidence, such as the
earlier planning applications and decisions referred to by the inspector in
paras 15 and 16 of his decision letter, are not admissible as an aid to
construction. Mr Telling said the phrase ‘period of summer time’ might mean (i)
summer in the seasonal sense, from summer solstice to autumnal equinox, ie June
to September or (ii) British Summer Time as defined in the Summer Time Act 1972
or (iii) summer in a larger sense as opposed to ‘winter’. He contended that it
was quite impossible to tell from the document itself which of these meanings
was intended by the local planning authority.
Mr Havers for
the Secretary of State said that the phrase meant British Summer Time as
defined in the Act of 1972. He referred to the Shorter Oxford English
Dictionary, where ‘summer time’ is stated to be: ‘1. The season of summer;
the time that summer lasts. 2. (as two words) The standard time (in advance of
ordinary time) adopted in some countries during the summer months.’ He said that the absence of a hyphen between
the word ‘summer’ and ‘time’ was significant.
The basic
question I have to answer is, per Upjohn LJ: ‘Does the notice tell him’,
ie the landowner, ‘fairly what he has done wrong and what he must do to remedy
it?’ It must be borne in mind that the
notice is not discharged by compliance but remains in force permanently (see
section 93 of the Act) and that since 1981 it is registrable under section 92A
of the Act. The persons affected are, therefore, not just the actual recipients
of the notice, but all those into whose hands the land may come in the future.
In my
judgment, there is clearly ambiguity in the phrase ‘period of summer time’. Can
that ambiguity be resolved?
I cannot
accept Mr Havers’ submission that the ambiguity should be resolved by adopting
the meaning in the Summer Time Act 1972. That Act provides for altering the
clocks during specified dates in the year, the precise periods being subject to
amendment in any year by Order in Council. In my view, this is a technical
meaning of the phrase and not its meaning in ordinary language.
The inspector
said, in para 8 of the decision letter, that he ‘was not satisfied that, when
issuing the notice, [the council] intended the words to be interpreted in that
way’ and I agree with him. It is true that there is no hyphen between the words
‘summer’ and ‘time’ and that the Shorter Oxford Dictionary suggests that
that is significant. But dictionaries are only a guide to language and, for my
part, I do not think persons affected by this notice can be assumed to know
that a hyphen might make a difference to the meaning of the phrase ‘period of
summer time’. Nor do I think either of the other two possible meanings
identified by Mr Telling is necessarily the correct one. Summer as a season
does not seem a likely meaning to me; summer as opposed to winter is, in my
view, much more likely to be taken as the meaning by a recipient of the notice
but, if that is the meaning, when does it start and when does it end? That meaning itself is hopelessly vague.
My conclusion
is that the phrase is ambiguous and that the ambiguity cannot be resolved. In
the words of Upjohn LJ, it is ‘hopelessly ambiguous’ and the enforcement notice
is, therefore, a nullity.
I add that the
parties referred me to the recent decision of Nolan J in Rhymney Valley
District Council v Secretary of State for Wales and G Isaac [1985]
JPL 27, in which it was held that a decision by the Secretary of State that an
enforcement notice was a nullity could not be challenged by appeal under
section 246 of the Act and only by proceedings for judicial review. Mr Havers,
for the Secretary of State, told me that he did not rely on that decision and
was content that the question of validity should be dealt with on this appeal.
Section 246 of
the Act gives a right of appeal where the Secretary of State is alleged to have
erred in law in a decision on an appeal against an enforcement notice. Here the
Secretary of State, by his inspector, has given a decision on an appeal against
an enforcement notice and, in my judgment, this court therefore has
jurisdiction to consider whether that decision contains an error of law. In the
Rhymney Valley case the inspector had held that the enforcement notice
was a nullity. It seems doubtful to me whether that constitutes a ground for
distinguishing between the cases. I may, therefore, be differing from Nolan J
on this point. If so, I naturally do it with respect and diffidence.
Other
points.
Having
concluded that the notice is a nullity, strictly speaking I do not need to
consider Mr Telling’s other points. But in case I am wrong, I think I should do
so. I can take his other three points together. To explain them, I must refer
again to the inspector’s decision letter. After describing the appeal site and
its surroundings, the inspector went on as follows:
Undisputed
Facts:
11 For many years up to 1925 the land now
containing the site and the Wonderland building was used for general amusement
purposes.
12 The Wonderland building was erected in about
1925, whereafter it and the remaining land were used for various amusement
purposes. For a long time attractions on the appeal site included a Big Dipper.
13 The land containing the Wonderland building
and the appeal site is held on a 42 year lease from January 1 1964 granted by
the British Railways Board, the lease providing for a review after 21 years of
the rent initially fixed at £12,500 per annum. Your client company acquired the
lease and took control of the premises in December 1981.
14 On December 18 1981 planning permission was
granted for an expansion of ‘existing activities, eg Sunday market sales and
amusements’, on land containing the Wonderland building and the appeal site.
Conditions imposed included ones requiring the use to cease on February 28 1982,
markets to be held on Sundays only from November 15 to February 28, and no
trading to take place or market stalls to be erected other than within the
building.
15 On February 19 1982 your clients submitted an
application for planning permission for an ‘extension of permission to hold
Sunday markets and amusements to apply all year. Occasional additional
permission requested, ie bank holidays. Market to be outdoors during summer,
indoors in winter’. The land was described as ‘Wonderland Amusement Park’, and
the submitted plan showed the appeal site as included in the Wonderland
property and to be partly used as an outdoor market stall area and for car
parking. A covering letter explained the proposed indoor winter market period
as October to February annually, and the proposed outdoor summer market period
as March to September annually.
16 In response to the application planning
permission was granted on May 6 1982 for the operation of an ‘indoor Sunday
market between October and February each year only’. Conditions imposed
required the permission to be for the period October 1 to February 28-29 in any
one year, for the market to be held on Sundays only, and for no trading to take
place or market stalls to be erected other than within the buildings.
17 On the same day planning permission was
refused for the operation of ‘a Sunday market from March to September’.
18 Your clients operated a Sunday market on the
appeal site in the period March to September 1983 as stated in paragraph 4
above.
19 On July 8 1983 planning permission was
refused for the operation on land within the appeal site of an ‘outdoor Sunday
market during the period April 1 to September 30 annually plus occasional bank
holidays, and use of land as car park’.
The inspector
held, in paras 20 to 22, that the market use of the land was a material change
of use, which conclusion is not challenged. He then considered whether planning
permission should be granted for the market use of the land. He said:
Planning
Considerations.
23 It appears to me from the representations and
my inspection of the site and surroundings that the main issue is the effects
which the summer Sunday market use, if continued, would have on trade in the
town’s established shopping areas, on the character and attractiveness of this
part of the town’s sea front, and on the safety of pedestrians on North
Promenade.
24 In the Town Map the site falls within an area
allocated primarily for amusement, recreation and entertainment. A draft local
plan states that the introduction of uses other than those supporting the
resort function of the area will be resisted. It also states, with regard to
shopping policy, that the further development of shopping uses outside defined
areas centred on St Peter’s Avenue and Sea View Street will only be permitted
where there is an overriding local need. I have considered the relevant
provisions of the local plan, and although the plan has not yet been approved,
see no reason to doubt that in general terms the policies merit support.
25 Whilst I am mindful of the policy objection
to the summer Sunday market use, and of the objections contained in letters
received, I note that Sunday markets have been operating in winter in the Wonderland
building for sometime, and that the number of stalls at the markets is between
200 and 250. Sunday markets also operated on the appeal site throughout last
summer. There is no firm indication that town centre trade has suffered as a
result. Although I do not doubt that some persons make purchases at the Sunday
markets which would otherwise be made in the town centre shops, I accept that
the markets attract substantial numbers of visitors from outside the area, and
that those of the town’s businessmen and traders who provide services or
facilities to the public on Sundays are likely to benefit from the spending of
the visitors. I find myself not satisfied on the evidence before me that the
holding of summer Sunday markets on the site would have a materially damaging
effect on trade in the town’s established shopping areas.
26 Your clients claim that the changed habits
and demands of holidaymakers have resulted in use of the appeal site for the
provision of amusements ceasing to be viable. They refer to the heavy cost of
maintenance and repair work on their premises and equipment, of rates
increases, and of the substantial increase in rent likely to result from the
review at the end of this year. The Council say that, after a period of decline
in the prosperity and appearance of North Promenade, investment is taking place
in both existing and new entertainment and amusement type developments; that
their policies have been drafted to take account of the upturn, and they now
look forward to seeing further investment on North Promenade and uses of land
there geared to fulfilling the needs of the holidaymaker and day tripper to the
resort; that the Promenade may reasonably be expected to be reserved for
walking; that the beach near the appeal site is very popular, and the quiet
enjoyment of it should be protected as much as possible; and that a summer
Sunday market on the site, while an attraction on that one day of the week,
would result in the site being in a vacant, unused state for the other six days
at the height of the holiday season.
27 Although the holding of Sunday markets in the
Wonderland building appears to me to be a sensible and appropriate way to use
the available space in winter, I am of the opinion that different
considerations apply during the summer, when the uses of land on North
Promenade should, in my view and in the words of the draft local plan, support
the resort function of the area. Whilst a Sunday market on the site in summer
would undoubtedly be an attraction to various persons using the sea front and
the beach, I do not believe that the use is of a kind appropriate to the area.
I consider that the activity, bustle, and vehicular movements generated by a
market would be out of place and would harm the area’s character at a time when
the public may reasonably expect both to find relaxation on the beach and
promenade, and to enjoy the customary attractions of a sea front. Furthermore,
your clients have submitted no proposals for the use of the site on days when
the market would not be operating, and in the absence of an appropriate use on
those days it seems to me that the site would appeal as a lifeless,
uninteresting and unattractive place. I am conscious of the financial problems
confronting your clients, and of the advantages to them of holding Sunday
markets on the site, but am convinced that the use does not represent a right
long-term use for the site.
28 There is no dispute that in summer,
especially at weekends, cars are attracted to North Promenade in considerable
numbers, and that dangers to pedestrians arise from the combined effects of
holiday attractions being on one side of the road, the promenade footway and
the beach being on the other, and vehicles moving up and down between them and
parking on the carriageway. The problem has resulted in the operation of a
traffic control system at certain times in the summer. The system has varied
over the years; in 1983 a barrier was operated at the south-eastern end of
North Promenade, and the entry of vehicles was restricted from the Spring Bank
Holiday weekend and on each weekend thereafter until the school summer
holidays, when the restriction was imposed daily. The evidence is that the
controls have been the subject of opposition from traders, and that no
arrangements have been agreed for the 1984 season.
29 Although I accept that, with the inclusion of
adjoining land owned by your clients, parking space at the site could be
provided for traders’ and patrons’ vehicles, I also accept the likelihood that,
if such accommodation were provided, it would not be feasible to maintain, at
least on market days, a control system such as that which operated in 1983. In
the absence of any control there would inevitably, in my opinion, be a large
increase in vehicular flows along North Promenade as a result of the market,
and, despite the existence of parking space at the site, in parking on the
carriageway. I am in no doubt that this would lead to a substantial and
unacceptable increase in dangers to pedestrians.
31 The matter of permitted development rights
under Class IV, Schedule 1
material consideration, and from the evidence and my inspection of the site and
surroundings am of the view that the appeal site is curtilage land associated
with the Wonderland building. If that is so, it does not enjoy Class IV rights
for the holding of markets. But in any case the matter in my view is not
sufficient to alter my conclusion that planning permission should not be
granted.
32 I am conscious of the particular need at the
present time to encourage business activity and promote employment, matters on
which guidance is given in Circular 22/80, but I consider there to be sound and
clear-cut reasons for refusal of planning permission in this case; and after
taking into account all other matters raised in the representations, I find
nothing to cause me to alter my decision. Accordingly the appeal fails on
ground (a).
Then the
inspector dealt with the variation of the notice.
Mr Telling
contends that the inspector erred in law in respect of this part of his
decision in three respects: (1) that he failed to have regard to a
consideration material to the decision, namely the amount of traffic which
would be generated by a resumption and/or intensification of the established
use of the appeal site for amusement purposes; (2) that he took into account a
consideration not material to that question, namely, the fact that the
appellants had submitted no proposals for the use of the appeal site on days on
which the Sunday market could not be operated; and (3) that on the evidence
given at the inquiry into the appeal the inspector could not reasonably have
concluded that the appeal site is a curtilage to a building.
Mr Havers for
the Secretary of State joined issue on all three points.
As regards
point (1), assuming in Mr Telling’s favour that the traffic generated by a
resumption of the existing use was a material consideration and assuming that
the inspector left it out of account, both of which assumptions were disputed
by Mr Havers, I nevertheless think that, in the circumstances of this case, the
inspector was justified in disregarding it. In para 26 he stated: ‘Your clients
claim that the changed habits and demands of holidaymakers have resulted in use
of the appeal site for the provision of amusements ceasing to be viable.’ Apparently, it was part of the appellants’
case for a market use of the site that it could no longer economically be used
for amusements. It appears to me inconsistent that the appellants now complain
that the inspector did not take into account traffic which would be generated
by resumption of the use which they themselves say is unviable. They cannot
blow hot and cold. I therefore reject this point.
Mr Telling’s
next point relates to the sentence in para 27 of the decision letter, where the
inspector says: ‘Furthermore, your clients have submitted no proposals for the
use of the site on days when the market would not be operating, and in the
absence of an appropriate use on those days it seems to me that the site would
appear as a lifeless, uninteresting and unattractive place.’ I think there is more substance in this point
because there is no obligation under planning law for a landowner to use his
land. He is entitled to leave it unused if he wishes. I think, therefore, that
the inspector did take into account an irrelevant consideration. It may be that
what the inspector intended to say is that the use of the land for a market on
Sundays would necessarily preclude its use for anything else on other days of
the week. That is a different point. In my judgment, that would be a material
consideration from a planning point of view. That was the way the council put
it at the inquiry. In para 26 it is recorded as part of their case that ‘a
summer Sunday market on the site, while an attraction on that one day of the
week, would result in the site being in a vacant, unused state for the
other six days at the height of the holiday season’ (my italics). But the
inspector has not expressed it in that way and, in my view, he has therefore
erred in law.
Would the
decision have been any different if he had disregarded this factor? Mr Telling contends that it might be. I do
not accept that. It is clear from the passage in the decision letter which I
have quoted that the inspector had substantial other reasons for rejecting the
appellants’ proposals. He regarded the use as inappropriate to the area,
contrary to the draft local plan and he held that the activity, bustle and
vehicle movement generated by a summer market would be out of place and would
harm the area’s character, and that market use would cause a serious traffic
problem.
Taken in the
context of the decision as a whole, the sentence challenged by Mr Telling
appears to me to be a subsidiary reason. I am in no doubt that the decision
would have been the same without it. I would, therefore, in the exercise of my
discretion not remit the case to the Secretary of State on this point.
Mr Telling’s
final point involves para 31 of the decision letter, as cited above. The Town
and Country Planning General Development Order 1977, by Article III and
Schedule I, Class 4, para 2, grants planning permission for the use of land
other than the building or the curtilage of a building for, inter alia,
market use on not more than 14 days in any calendar year. The appeal site has
the benefit of this deemed planning permission. That, as the inspector rightly
said, would be a material consideration. He held that the appeal site was part
of the curtilage of the ‘Wonderland’ building, so that there was no deemed
planning permission for market use for 14 days in any year. Mr Telling
elaborated his argument on this point at some length and cited several cases on
the meaning of ‘curtilage’. I think he made this issue unnecessarily
complicated and I do not propose to follow him along that path. The question
for me is really a short and simple one, as I think Mr Telling eventually
agreed. Whether land is curtilage land is a matter of fact for the inspector
and I cannot interfere with the decision, so long as there was evidence on
which he could come to it and his conclusion is not obviously wrong. I have
seen the plan; I have been taken through the evidence and, on that evidence, in
my judgment, it was entirely open to the inspector to hold as he did, that this
land was part of the curtilage of the building. This court does not have to
decide whether this land is curtilage. It is enough that the inspector was
entitled to conclude as he did.
I note that
the inspector indicated that, in any case, the matter was not sufficient to
alter his conclusion. That I find a little surprising because, if the land
could be used for a market on 14 Sundays in the summer, it would seem to raise
the question whether the addition of some more Sundays makes any difference. If
I am wrong on the curtilage point, I would have been minded to remit the matter
to the Secretary of State for reconsideration if it were open to me to do so; a
fortiori because there would then be two errors of law in the decision, but
that does not arise.
However, as
stated, I do remit the case to the Secretary of State with the opinion of the
court that the notice is a nullity.
The case was
remitted to the Secretary of State, with costs for the appellant.
