Lord Justice Keene:
1. Just to the southwest of Heathrow Airport is located an area of about five hectares of land, which is now owned by the respondent and occupied by the appellant as tenant either personally or through companies controlled by him. He first came to the site in 1978. His activities since then can broadly be described as industrial or commercial. His tenancy was terminated by a notice served under section 25 of the Landlord and Tenant Act 1954 in July 1990, a notice which stated that the landlord would oppose the grant of a new tenancy. The appellant’s application for new tenancy described the nature of the business carried on as:
“…a transport depot and concrete-crushing and storage plant.”
2. The application came before Lewison J in February of this year. He, by a decision dated 15 February 2008, dismissed the application and made an order for possession in the respondent’s favour on the basis that the vast majority of the appellant’s activities on the site were illegal and would remain so in the future. They amounted to criminal offences, which was a reason “connected with the tenant’s use or management of the holding” (see section 30(1)(c) of the 1954 Act).
3. Permission to appeal to this court was granted by Arden J, but only on some of the grounds of appeal in the appellant’s notice, those being grounds 10 to 15 inclusive. The first two of those grounds concerned an enforcement notice of 1988; the next two relate to an application by the appellant for a Certificate of Lawfulness of Established Use or Development (“CLEUD”) under section 191(1) of the Town and Country Planning Act 1990 (“the 1990 Act”), and the final ground relates to the judicial discretion under section 30(1)(c) of the Landlord and Tenant Act 1954.
4. The appellant’s case before Lewison J was that he carried on a number of businesses on the site, namely (as appears from the judgment) a haulage business; a concrete-crushing business; the importation of soil for screening and sale; a demolition business to the extent of storing plant and machinery; a bin and skip hire business, and a plant hire business. The judge did not accept that all of these were separate businesses, independent of each other. Lewison J’s judgment contains a useful description of the physical characteristics of the activities on the land within the tenancy, areas identified by letters D, F, G and L on the plan.
5. The two largest areas amongst those four were F and G. G was described as a large mound of debris and rubble from demolition sites. These materials were crushed by two mobile concrete crushers so as to form aggregate, which was then piled on area F. There were then two smaller areas, one used for the storage of demolition plant and equipment — area D — and the other used for a weighbridge, area L.
6. The planning history of this land is complex and is described in detail in the judgment below. I can therefore confine myself to the most significant features of it. It is, in general terms, a history of repeated attempts by the local planning authority to halt the appellant’s activities on this land, which lies in the approved green belt, and to restore it to an appropriate condition for that designation. For none of those activities carried on by the appellant has the land ever enjoyed a permanent planning permission, and yet activities in some shape or form have been going on for over 20 years.
7. The earliest event in planning terms which requires mention is the service of an enforcement notice on 19 May 1988. It alleged a breach of planning control by, first, the carrying out of certain operations, namely the laying out and construction of hard standings and the erection of a workshop; and secondly, the making of a material change of use. The change of use specified was:
“…to use for a haulage contractors yard including the stationing of portable buildings for use as offices in the approximate positions shown [marked Y and Z] on the plan annexed hereto, the parking and storage of trailers and vehicles, the installation and operation of a concrete crusher and soil hopper and the storage of materials including soil concrete and excavated materials.”
I have quoted that in the slightly amended form as approved by the Secretary of State. The steps required to be taken by that notice were, apart from the removal of the hard standings and workshop:
“(ii) Discontinue the use of the land as a haulage contractors yard and
(ii) Remove from the land the portable buildings, trailers, vehicles, concrete crusher, soil hopper and all materials and equipment associated with the use as a haulage contractors yard.”
8. As I have indicated, there was an unsuccessful appeal against that enforcement notice to the Secretary of State. In the form upheld by the Secretary of State in due course, it required compliance within 12 months of 15 May 1989. The appellant did not comply and was convicted of an offense on 5 October 1990 and fined. Nonetheless, he continued not to comply and eventually, in an attempt to get the site successfully restored, the local planning authority, in the shape of the county council, granted an application for a temporary planning permission. That was dated 31 March 1994. It was a permission for use of the land:
“…for the reception, processing and recycling of waste concrete with the restoration of part of the site to grassland and the construction of a landscaped bund for a temporary period of 7 years”
9. The time limit embodied in the description of the development permitted was reinforced by condition 4 on the permission. That provided as follows:
“The permission hereby granted shall be for a limited period of 7 years from the date of issue whereupon the use will cease. All fixed and mobile plant and any stockpiles of processed or unprocessed material shall be removed, all roadways and hardstandings broken up and the site restored in accordance with the details contained in the application and such details as may subsequently be approved in accordance with Condition 12.”
There was also an agreement entered into under section 106 of the 1990 Act whereby certain bonds were to be provided by the appellant to ensure compliance with the restoration scheme. However, no bonds were ever provided, and apart from limited restoration work in the northwest corner of the site, the site was not restored as it should have been. On 31 March 2001 that temporary permission expired. Shortly before, the appellant had sought planning permission for the removal of the time limit condition (condition 4) in the 1994 permission. He appealed against the deemed refusal of that application, but his appeal was dismissed on 7 May 2002.
10. Pausing there for a moment, I should comment that there is some authority at divisional High Court level for saying that an enforcement notice is not merely held in abeyance by a temporary planning permission for the same development, but is extinguished by it. That was so decided in Cresswell v Pearson [1997] JPL 860. That, however, was a decision on an earlier statutory provision — section 92(1) of the Town and Country Planning Act 1971 — which has since been amended. The current wording of the relevant provision (section 180(1) of the 1990 Act) introduces the words “so far as inconsistent with that permission”, words introduced by the Planning and Compensation Act 1991 as from 2 January 1992. So section 180(1) as it stands reads:
“Where, after the service of —
(a) a copy of an enforcement notice; or
(b) a breach of condition notice,
planning permission is granted for any development carried out before the grant of that permission, the notice shall cease to have effect so far as inconsistent with that permission.”
Whether Cresswell v Pearson remains good law in respect of section 180(1) is a matter on which I need express no opinion today. What is clear is that the 1989 enforcement notice certainly remained, and remains, in force in respect of all the matters covered by it; first and foremost, the use as a haulage contractor’s yard, save insofar as any development was permitted by the 1994 temporary permission, which was essentially for the concrete-crushing use.
11. I return to the planning history. The appellant, having lost his appeal to get the time limit removed on the 1994 permission, then made a further application in March 2006 for a permanent planning permission for the concrete-crushing use. That was refused by the local planning authority and his appeal eventually dismissed on 25 March 2007. A section 288 application to quash that appeal decision has been lodged but not yet determined.
12. In the meantime, on 21 December 2006 the local planning authority served a breach of condition notice on the appellant under section 187A of the 1990 Act, and that asserted that condition 4 on the 1994 permission — the time limit condition — had not been complied with. It required the appellant to take certain steps, namely:
“(1) Cease the use of the land for the reception, processing, deposit and recycling of waste concrete and other materials.
(2) Cease the use of the land for the crushing of concrete and other waste materials.”
The appellant was allowed six months from 21 December 2006 to comply.
13. Leave to bring judicial review proceedings to quash that notice was refused on paper by Sullivan J but granted by Beatson J on two grounds. The application for judicial review itself has not yet been determined; but neither of the grounds went to the validity of condition 4 on the 1994 permission. In any event, Lewison J held that the breach of condition notice was valid, and permission to appeal against that part of his decision has been refused by Arden J. This court, therefore, proceeds as it must on the basis that the breach of condition notice was, and is, valid.
14. Section 187A(8) and (9) provide as follows:
“(8) If, at any time after the end of the period allowed for compliance with the notice —
(a) any of the conditions specified in the notice is not complied with; and
(b) the steps specified in the notice have not been taken or, as the case may be, the activities specified in the notice have not ceased,
the person responsible is in breach of the notice.
(9) If the person responsible is in breach of the notice he shall be guilty of an offence.”
Consequently, the appellant has been committing a criminal offence in respect of the concrete-crushing activity, and the use of the land for the continued deposit of concrete and other waste materials, since late 2007, as Lewison J found, and any future continuation of that use would also constitute a criminal offence. Likewise, the use of the land as a haulage contractors’ yard, including the various ancillary activities referred to in the 1988 enforcement notice, also constitutes a criminal offence by virtue of section 179 of the 1990 Act, since the 1988 enforcement notice remains in force today, save to the extent that it is inconsistent with the 1994 temporary permission. Lewison J held at paragraph 93 of his judgment:
“I conclude therefore that the vast majority of the activities that Mr Fowles carries out on the site are prohibited either by the breach of condition notice or by the enforcement notice and hence constitute the commission of continuing criminal offences.”
15. To continue with the planning history, in July 2007 the appellant applied for a CLEUD under section 191 of the 1990 Act. His application for such a certificate was refused and he appealed, the appeal being on a much more limited basis than the application. He sought a certificate of lawful use for use as a:
“depot for the operation of a demolition contractor’s business, a skip and bin hire operation and the repair and maintenance of vehicles and machinery in building 9.”
At the time of Lewison J’s decision that appeal was still pending. The judge below concluded that there was no realistic prospect that the appellant would succeed in obtaining the CLEUD which he sought.
16. Since that decision by the judge, the inspector dealing with the appeal for a CLEUD has made his decision, dated 8 October 2008. Both parties are agreed that this court should have regard to that decision. The inspector dismissed the appellant’s appeal, albeit for different reasons from those envisaged by the judge. The inspector found that the site was in a mixed use, including the three uses for which a certificate was sought and also a haulage business and the concrete recycling business. That mixed use had been instituted at some time within the ten-year period prior to the application for a certificate because the skip and bin operation had been introduced onto the land. Consequently, the mixed use was still vulnerable to enforcement action. The inspector also found that the planning unit, as a matter of fact and degree, was the whole appeal site. As at June 1997, ten years before the application for a certificate, the site had also been in a mixed use, consisting of concrete crushing and recycling, haulage, and a depot for the appellant’s demolition business.
17. It is to be noted that in deciding as he did, the inspector expressly put on to one side the question of whether the various uses of the planning unit, the whole site, were lawful or not: see paragraph 22 of his decision, where he cross-referred to paragraphs dealing with the 1988 enforcement notice and the 2006 breach of condition notice. It needs to be borne in mind that no certificate of lawfulness under section 191 can be obtained for a use which contravenes any of the requirements of an enforcement notice or a breach of condition notice in force: see section 191(2) and (3). So no such certificate could be obtainable for the mixed use found to have existed in 1997, because both the concrete-crushing and haulage uses contravened one or other of those notices.
18. Section 30(1)(c) of the Landlord and Tenant Act 1954 provides as one of the grounds for not ordering the grant of a new tenancy:
“that the tenant ought not to be granted a new tenancy in view of other substantial breaches by him of his obligations under the current tenancy, or for any other reason connected with the tenant’s use or management of the holding”
The last part of that paragraph, the last fifteen words, have been held by the courts to include the tenant’s use of the holding for an unlawful purpose: see the decision in Turner & Bell v Searles (Stanford-le-Hope) Ltd [1977] 33 P & CR 208. In that case, Roskill LJ stated at page 212 that the words in section 30(1)(c), to which I have just referred:
“…entitle the court to look at everything which the court thinks is relevant in connection with the tenant’s use or management of the holding past, present or future which may enable the court fairly to exercise its discretion under that section.”
19. All three judges in that case seem to have regarded an existing illegal use as a relevant consideration. There was, on the facts of that particular case, an expressed intention on the part of the tenant to continue the illegal use into the future. But Lewison J in his judgment at paragraph 69 in the present case, citing the Turner & Bell decision, records it as common ground between these parties that:
“…if Mr Fowles’ use of the holding amounts to the commission of a criminal offence, then the court should not order the grant of a new tenancy to him…”
20. The appellant’s case before us includes a submission that even if the appellant would continue to commit criminal offences under a new tenancy granted by the court, that is an irrelevant factor in the exercise of the section 30(1)(c) discretion. Mr Platford on the appellant’s behalf submits that it is only if the renewal of the tenancy necessarily involves a criminal offence in the use of the land that such a prospect becomes a relevant consideration. For my part, I regard that submission as virtually unarguable; it is contrary to common sense, given the broad language of paragraph (c) of section 30(1) and it is contrary to the Turner & Bell decision.
21. Apart from that point, the appellant’s argument is a quite narrow one in the end. Mr Platford accepts that both the concrete-crushing and the haulage contractors’ use are prohibited by, respectively, the breach of condition notice and the 1988 enforcement notice. His “escape route”, as he describes it, is that the appellant would be able to get a certificate of lawful use for a demolition contractor’s business and a skip and bin hire operation. Well, given the inspector’s decision that the skip and bin hire operation was introduced sometime after June 1997, with no evidence put before him relating to the period before the year 2000, there can clearly be no prospect of a CLEUD for that element. The inspector’s decision is not open to challenge in these proceedings, by virtue of section 284 of the 1990 Act, and in any event such a finding of fact would not be vulnerable, in my view, in any proceedings.
22. So the appellant’s case narrows yet further to the contention that the appellant could apply for and obtain a CLEUD for the demolition contractor’s use. That, argues Mr Platford, would be lawful because it could not be enforced against, and it is submitted that, if on that basis the appellant’s tenancy were renewed, the court can be confident that the appellant would comply with planning control. We are told that he now wishes to legitimise his use of the site.
23. For my part I am prepared to proceed, for present purposes, on the basis that the appellant might be able to get a certificate establishing such a limited use as being lawful. I say “might”, and I expressly refrain from determining that issue, because it could be argued that the 1988 enforcement notice and its prohibition on the parking and storage of trailers and vehicles and storage of materials would prevent this; and in any event, any intensification of such a use which amounted to a material change of use of this land would not be immune from enforcement action. But those are matters which we need not decide. Let us assume for the moment in the appellant’s favour that he might be able to obtain such a certificate. His problem nonetheless is that all the evidence points towards him continuing to flout planning control and refusing to confine himself to any lawful use which might be established. At paragraph 88 of his judgment, Lewison J found that the appellant:
“… is committing and will continue to commit a criminal offence by continuing his concrete-crushing operations on the site.”
Mr Platford seeks to persuade us that the judge merely meant that if the appellant were to continue with the concrete-crushing, then that would be a criminal offence. That, however, is not what the judge said, and, given the evidence before him, what he said makes good sense. In cross-examination of the appellant in the court below, one finds in the transcript at page 54 the following exchange:
“Q. If the court does give you a new tenancy you will go on using the site in the way you are at the moment.
A. Yes.
Q. As long as you can?
A. Yes.
Q. And if you can get planning permission, so much the better, and if you cannot you will use it anyway.
A. I’ll continue to see what we can do with the site, yes.”
24. It is true that in re-examination he was persuaded to say that if there was no hope of getting planning permission he would have to stop (see page 77), but the judge clearly did not accept that, and for good reason. As Mr Jourdan submits, on behalf of the respondent, the appellant is someone who has constantly flouted both planning control and the criminal law. Convicted of a breach of the 1988 enforcement notice in 1990, he continued to carry on his activities in further breach of it. He failed to comply with the terms of the section 106 agreement and the scheme for restoration. He did not cease concrete-crushing in June 2007 when the breach of condition notice came into effect, but has carried on ever since. Mr Jourdan rightly points out that the recent inspector’s decision records that that use was still going on at the time of the recent public inquiry in mid-September 2008, about one month ago. And so the appellant has been committing a criminal offence for some fifteen months in that respect. In addition, the inspector records that the haulage business was still continuing in September 2008, despite that having been a criminal offence continuously since May 1990, when the 1988 enforcement notice applied.
25. One has to add to all this that the judge found repeatedly in the course of his judgment that the appellant was a most unreliable witness: see paragraphs 29, 34, 52 and 57 of the judgment. I need not repeat what the judge said; his references speak for themselves. It seems to me clear that the judge did not accept that the appellant would stop his unlawful use of the land if a new tenancy was granted. There was ample evidence for him to make that finding, which is perhaps unsurprising given the evidence which the judge heard about the profitability of the appellant’s breaches of planning control and the law over the years.
26. I can see no flaw in the judge’s exercise of discretion under the 1954 Act, and, indeed, were I in his position I would have exercised my discretion in the same way. The reality, in short, is that the appellant has an appalling past record of breaches of planning control, to the extent of committing a number of criminal offences. His unreliability as a witness would not enable a court to attach weight to any assurances which he might give as to the future, and the financial incentives for him to continue in the future as he has in the past are powerful. The likelihood is that, if he were granted a renewal of his tenancy, he would continue to act unlawfully. In my judgment Lewison J was correct in the way in which he exercised his discretion. I would, therefore, dismiss this appeal.
Lord Justice Lawrence Collins:
27. I entirely agree. Indeed, in the circumstances of this case it would have been perverse for the court to have ordered the respondent to grant the new tenancy to the appellant.
Mr Justice Hedley:
28. I also agree with all that both my Lords have said.
Order: Appeal dismissed.
