Enforcement notice–Planning unit–Forty-four garages originally purpose-built for owners’ taxi-cab fleet–Unit is each garage, not the block–Further point on landlords’ inability to control tenants’ actions–‘Structure of enforcement provisions of Town and Country Planning Act 1971 misunderstood’
This was an
appeal by Mr Sidney Albert Johnston and Mrs Elsie Winifred Johnston, owners of
44 garages in Salisbury Road, Harringay, London N4, from a decision of the
first respondent, the Secretary of State for the Environment, upholding five
enforcement notices served by the second respondents, the London Borough of
Haringey, requiring the appellants to discontinue the use of certain of the
garages for motor-vehicle repairs.
Mr J H Hames
QC and Mr J Denniston (instructed by Craigen, Wilders & Sorrell) appeared
for the appellants; Mr H K Woolf (instructed by the Treasury Solicitor) for the
first respondent; and Mr M Spence (instructed by D E Wood) for the second
respondents.
Giving
judgment, LORD WIDGERY said that the 44 garages in question, which were built
in a courtyard, were originally intended to stable taxis owned and operated by
the owner of the property. Over the years individual garages were let to
tenants; some tenants took two or more adjacent garages using them as a single
unit, and in some cases garages were used for repairs as opposed to mere
garaging purposes. The council’s object in serving the five enforcement notices
was to restore the original conception that the garages were for garaging motor
cars simpliciter. In settling the enforcement notices the council had
obviously come to the conclusion that the planning unit was not the entirety of
the 44 garages but that individual planning units could be discerned in garages
or groups of garages in separate occupations, and they had not attempted to
allege a material change of use in respect of the premises as a whole. On
behalf of the appellants, Mr Hames now contended that all the garages should
have been treated as an entirety. The first step, in these circumstances, was
to look at the planning unit. The most valuable contribution to a solution of
the problem of what was the proper planning unit was the judgment of Bridge J
in Burdle v Secretary of State for the Environment [1972] 1 WLR
1207 at 1213, which suggested that one should start with the ‘unit of
occupation,’ in other words that prima facie the planning unit was the
area occupied as a single holding by a single occupier. He (his Lordship) would
not for a moment wish to suggest that the rule was absolute, admitting of no
exceptions, but it was clearly right as a first step. In deciding what the
appropriate planning unit was, the unit of occupation was of great, if not of
predominant, importance. It was a consideration which the Secretary of State or
the local planning authority might take into account in deciding what was the
appropriate unit. In argument in the present case, the premises were likened to
a purpose-built block of flats, and Mr Hames contended that in consequence the
block should be regarded as a single planning unit. He (Lord Widgery) would
have thought that in almost every case of a block of flats, with the flats let
separately to different tenants, the planning unit would be the flat in
question. It was not to be overlooked that it might be in the interests of the
occupier himself to have the planning unit confined to the land in his own
occupation. If it were so confined he was at least
affect him, whereas if he were compelled to share a planning unit with another
or others he might find enforcement action being taken against him when the
true fault was that of one of the other occupiers of the unit.
The second
point taken by Mr Hames concerned one particular enforcement notice relating to
garages Nos 42 and 43 Prior to 1970 garage No 44 had had the same occupier as
42 and 43 but had been used for a long time for repair work, whereas 42 and 43
had been used simply for garaging purposes. After 1970 the occupier proceeded
to use all three garages for repair purposes, and the council sought to enforce
the cessation of the use of 42 and 43 for those purposes, although they
recognised that enforcement in respect of 44 in isolation could not be
effective. The inspector in his report had said in effect that before 1970
there was a composite use of the single planning unit–part used for garaging
and part used for repair work–but after 1970 there was a single use of all
three garages for repair work. In those circumstances, treating the three
garages as the planning unit, it was a perfectly proper conclusion for the
inspector to reach that there had been a material change in the planning unit
comprising the three garages, because what had formerly been a dual or
composite use had become a single use for repair purposes–what was often
described as an intensification of the repair use of such a character and extent
as to result in a material change in the use of the planning unit as a whole.
That seemed to him (his Lordship) to be absolutely right.
Mr Hames also
took the point that since the garages were let to tenants who had a measure of
security under the Landlord and Tenant Act 1954, it was impossible for the
owners to comply with the notice and obtain the discontinuance of the use
within 28 days or within any foreseeable time. Counsel’s argument was that
where an owner had leased the property to a tenant and was unable to recover
possession, any enforcement notice should be expressed to apply either at no
particular time or at some indefinite time, because it could not be foreseen at
what precise moment possession would be obtained and the opportunity acquired to
have the use changed. He (his Lordship) thought that the structure of the
enforcement provisions of the 1971 Act had been misunderstood. Enforcement
notices were served not only on the owner of the land; they were also served on
the occupier. So far as concerned the occupier, all he had to do to comply with
the direction in the notice was discontinue the use of the garage for repairs.
When one came to the landlord and asked what the consequences would be if the
use were not discontinued, the answer was in section 89 (5) of the 1971 Act.
Under the section, it was only a person who was in a position to determine the
unlawful use and who, notwithstanding the notice, either continued to use the
land in defiance of it or caused or permitted some other to do so, who was at
risk. In his (Lord Widgery’s) judgment the period for compliance, highly
relevant and appropriate for the occupier of the land, did not really affect
the owners, because unless they themselves did something which could be said to
amount to a using of the land for the unauthorised purpose or causing or
permitting the tenants so to do, they were not at risk and not concerned with
the compliance provisions of the notice. Any change such as Mr Hames suggested
would render the notice completely ineffective against the person who ought to
comply with it, namely the occupier. It was effective and proper against the
occupier and did not put the owner at risk. The appeal should be dismissed.
MILMO and
ACKNER JJ agreed, and an order was made accordingly.
