Town and Country Planning Act 1971, section 246 — Appeal against decision of Secretary of State for the Environment upholding enforcement notice served by planning authority — Question as to application of Class XI of the Schedule to the Town and Country Planning (Use Classes) Order 1972 — ‘Use as a boarding or guest house, or an hotel providing sleeping accommodation’ — The planning unit in this case consisted of an hotel, formed out of three private houses, with drinking facilities in a bar open to non-residents — The authority served an enforcement notice requiring the hotel company to cease using the enlarged bar area for the sale and consumption of intoxicating liquor and other drinks to the general public — The Secretary of State on appeal held that the enforcement notice was right — The case came before the Divisional Court on two occasions, having been sent back on the first occasion to the Secretary of State for further consideration — The Secretary of State adhered to his original opinion on the ground that the use of the enlarged area as a non-residents’ bar was not an incident of the hotel use, but, because of its scale, advertisement, manner of operation etc, was a separate use in breach of planning control — Held that the Secretary of State was in error as none of the features on which he relied showed that the use was not an incident of the hotel use — Appeal allowed and decision sent back a second time to the Secretary of State for further consideration
This was the
second appeal against a decision of the Secretary of State to uphold an
enforcement notice served by the Southend-on-Sea Borough Council in respect of
the Boston Hall Hotel on The Leas, Westcliff-on-Sea. The first appeal was
reported at (1979) 250 EG 157, [1979] 1 EGLR 151.
C Cochrane
(instructed by Kingsford, Dorman, agents for Drysdales & Janes, of
Southend-on-Sea) appeared on behalf of the appellants; Simon Brown (instructed
by the Treasury Solicitor) represented the Secretary of State; the borough
council was not represented and took no part in the proceedings.
Giving
judgment, DONALDSON LJ said: Emma Hotels appeal under section 246 of the Town
and Country Planning Act 1971 against the decision of the Secretary of State
for the Environment to uphold an enforcement notice served by the
Southend-on-Sea Borough Council. It is the second decision by the Secretary of
State to uphold the enforcement notice and it is the second appeal to this
court.
The planning
unit comprises what was once three private houses, namely, 25, 26 and 27 The
Leas, on the sea-front at Westcliff-on-Sea. In 1969 permission was granted for
the conversion of 25 and 26 into a private hotel and that produced the Boston
Hall Hotel. In 1974 permission was obtained to incorporate 27 into the hotel as
six bedrooms, a lounge and a bar. Shortly after that, permission was obtained
to change the use of the bar in 27 into a use as a non-residents’ bar. A
question was raised as to whether that permission was necessary, but I do not think
it matters now. The position, historically, is that from three private
dwelling-houses these premises have changed, bit by bit, into a larger hotel
with drinking facilities for non-residents.
Following the
enlargement of the bar area the appellants applied to the local licensing
justices for a licence — I take it to have been a full publican’s on-licence —
and were refused it by the licensing justices but obtained it on appeal to the
crown court.
The
enforcement notice was dated June 3 1976 and it required Emma Hotels Ltd to
cease using this enlarged area for the sale and consumption of intoxicating
liquor and other drinks to the general public. There was a public inquiry and
the Secretary of State upheld the enforcement notice, concluding that there had
been a change from use as a private hotel into a composite use partly for the
purposes of an hotel and partly for the purposes of a fully licensed
non-residents’ bar and lounge: in other words, something in the nature of a
public house. There being a material change of use, he had to consider whether
planning permission should be granted and he refused planning permission and
upheld the enforcement notice.
That decision
was appealed to this court which, on that occasion, consisted of Lord Widgery
CJ, Bridge LJ and Caulfield J, and the judgment of the court was given by
Bridge LJ on January 23 1979. He recited the facts of the matter and the
decision of the Secretary of State that the premises were in composite use for
the purposes of an hotel and a non-residents’ lounge and bar. He went on to
say:
At an early
stage in the argument, Mr Cochrane for the appellants conceded, and in my
judgment rightly conceded, that, viewed independently of any provision in the
Use Classes Order to which I shall have to turn in a minute, it could properly
be said that use of premises as a licensed public house was a materially
different use from use of premises as a private residential hotel. That
concession having been made, it would certainly seem to me that, if one had to
decide this appeal independently of the Use Classes Order, one would be bound
to say that there was material on which the Secretary of State could properly
conclude that here there was a composite use of a single planning unit in
relation to which a change in the proportion of the elements making up the
composite use had taken place, which was capable of affording material on which
the Secretary of State could conclude as a matter of fact and degree that a
material change of use of the whole had taken place.
However, the
matter does not rest there, for Mr Cochrane relies on the well known provisions
of Article 3 of the Town and Country Planning (Use Classes) Order 1972, which
it will be recalled provides: ‘Where a building or other land is used for a
purpose of any class specified in the Schedule to this order, the use of such
building or other land for any other purpose of the same class shall not be
deemed for the purposes of the Act to involve development of the land.’
The class in
question here is Class XI, which refers to: ‘use as a boarding or guest house,
or an hotel providing sleeping accommodation.’
Before the
extension of the non-residents’ licensed bar area involved in which is now
alleged to have been a material change of use for the purposes of planning law
took place, there cannot be the slightest doubt that the whole unit, 25, 26 and
27, constituted an hotel providing sleeping accommodation, and was within that
class.
The question
I ask myself is whether the fact that the permitted small area included in 27
for use as a non-residents’ bar has been enlarged to take in the area to which
the enforcement notice relates for some reason takes the entire premises
outside the ambit of Class XI.
For my part,
I am quite unable to see that it does. Mr Collins, who has said everything that
could be said on behalf of the respondent Secretary of State, has drawn
attention to the fact that in the definition of a ‘shop’ there are specifically
excluded from the definition, inter alia, hotels and premises licensed
for the sale of intoxicating liquor, which are there dealt with as separate
entities. That confirms the provisional view I expressed that they are indeed
different uses. But it does not follow from that, in my judgment, that an hotel
providing sleeping accommodation in any way ceases to come within Class XI if
it includes as one of the incidents of the hotel use [my emphasis] use
of part of the hotel premises as a bar open to non-residents. Both bars and
dining rooms are common features of hotels providing sleeping accommodation. I
suppose the vast majority of hotels up and down the country include such
facilities, and in many, many cases those facilities are open to the general
public and not confined to use by persons who are residing in the hotels.
I interpret
that passage as meaning that the fact that you find a public house use, that is
to say the provision of premises to which non-residents can resort for the
purposes of drinking and socialising, does not mean you are necessarily outside
Class XI. It is a question of whether, to use his words, ‘it is one of the
incidents of the hotel use’.
He goes on in
the judgment to say: ‘For those reasons I have come to the conclusion that the
Secretary of State, who does not appear to have addressed his mind and his decision
letter to the issue raised under Class XI of the Uses Classes Order, came to a
conclusion which cannot be supported in law’, and he set aside the decision and
sent it back to the Secretary of State for further consideration. As I
understand it, what the learned Lord Justice was doing was saying to the
Secretary of State, ‘Please consider whether, on the facts of this case, the
hotel use included, as one of its incidents, the provision of non-resident
drinking facilities’.
It went back
to the Secretary of State and he has remained of the opinion that he originally
held, namely, that the enforcement order was right and his reasons are
contained in paragraph 7 of his decision letter dated October 19 1979. In
fairness to him I had
of the Divisional Court, he says:
The Secretary
of State has given particular consideration to the issue raised in relation to
Article 3 and Class XI of the Town and Country Planning (Use Classes) Order
1972 and fully accepts that the use of a part of an hotel which provides
sleeping accommodation as a bar open to non-residents as an incident of the
hotel use would not remove the hotel from Class XI. The issue in the present
case appears to be whether the use of the enlarged area as a non-residents’ bar
is in fact an incident of the hotel use of 25, 26 and 27 The Leas. The facts
have been fully reconsidered. It is noted that, on the estimation of your
clients’ managing director, not more than 20 per cent to 30 per cent of the
persons using this bar are hotel guests. It is also noted that the bar is
advertised and operated in a manner more akin to a public house than an hotel
bar: there are external advertisements reading ‘open to the public’ and ‘Oak Hall
Free House’ and there are signs on the front windows of the room which state
that it is a free house and which advertise different brands of beer. Your
clients’ general manager stated that this part of the premises was run on the
same lines as a public house. The Secretary of State concludes that, as a
matter of fact and degree, the use of the larger area which is the subject of
the enforcement notice, together with the permitted area, as a non-residents’
bar for the sale of intoxicating liquor and other drinks to the general public
and the consumption of intoxicating liquor and other drinks by the general
public is, having regard to the scale of its use by non-residents of the hotel,
the way in which it is advertised and operated, with its distinctive character
and appearance, and the fact that it can be readily isolated physically from
the rest of the building, not an incident of the hotel use, but a separate one.
It is further concluded that the introduction of that use constituted a
material change of use of the planning unit to a mixed use as an hotel
providing sleeping accommodation and as premises for the sale of intoxicating
liquor and other drinks to the general public. There was therefore a breach of
planning control and the appeal fails on ground (b).
For my part, I
think that the Secretary of State, in that paragraph, has isolated precisely
the point which he was asked to consider by this court, and that he has
considered it. But I am quite unable to see how, directing himself correctly,
it would be possible for him to decide that this was not an incident of the
hotel use. A non-residents’ bar by its nature has to be run as a public house.
There is no particularly different way in which you treat resident users of a
bar except that you may, perhaps, allow them to charge their drinks to their
hotel account. However, I have never understood that putting drinks ‘on the
slate’ was unknown in a public house, and that really is all that is happening
here.
The fact that
it is a free house may well attract customers in larger numbers than would be
the case if it were a tied house, but it does not follow from that that it
ceases to be an hotel or the attracting of non-residents involves a separate
composite use within the same planning unit as something in the nature of a
public house.
Unless you
have a very large number of bedrooms, or a very large number of people sleeping
in those bedrooms, and in addition residents who are prone to make use of the
drinking facilities to a very large extent, I really do not see why the
Secretary of State should be in the least bit surprised that only 20 per cent
to 30 per cent of the users of the public bar were residents.
The other
factors encouraging the general public to come in and drink seem to me all
necessary incidents of having a non-resident bar. There is no point in having a
non-residents’ bar if you do not invite people to use it.
The fact that
it can be readily isolated physically from the rest of the building does not
seem to me to be a relevant factor unless steps are taken to isolate it. That
would be a different matter altogether, but unless and until that is done I
cannot see on what basis the Secretary of State reached the conclusion that
this was not an incident of use, as had been held.
Mr Brown did
say that there is no challenge in the notice of appeal on Wednesbury
principles. I do not, for my part, think it matters, since this point was fully
argued, but if for the purposes of any subsequent proceedings he would rather
have the notice of appeal amended, I have always personally taken the view that
much the best time to amend a notice of appeal, or any pleadings, come to that,
is when the case is concluded. For my part, I should be entirely happy to give
leave for any necessary amendments to be made.
For those
reasons, I fear that the Secretary of State has erred and I would once again
set aside his determination and return it.
HODGSON J
agreed.
The appeal
was allowed with costs. Leave was given to appeal to the Court of Appeal.
