Enforcement notice–Use of major part of site for industrial purposes established by 1963–Secretary of State can require owners to pull down extensions built since then, but cannot prohibit industrial use of the portions of the site on which they stood–Further point on site of two cottages demolished by owners since 1963–Upholding the notice with regard to this area would involve treating that portion of the site as a distinct planning unit–Matter remitted for reconsideration by Secretary of State in light of court’s observations.
This was an
appeal by Joyce Shopfitters Ltd, of Starts Hill, Farnborough, Kent, against a
decision of the first respondent, the Secretary of State for the Environment,
on January 24 1975 upholding an amended enforcement notice served by the second
respondents, Bromley Borough Council, in October 1973 requiring the appellants
to cease using for the purposes
Walk, Farnborough.
Mr G E
Moriarty QC and Mr M B Horton (instructed by Kidd, Rapinet, Badge & Co,
agents for William J Wade & Co, of Sidcup) appeared for the appellants, and
Mr M H Spence (instructed by J H Stevens, of Bromley) represented the second
respondents. The first respondent took no part in the proceedings.
Giving
judgment, LORD WIDGERY said: This is an appeal under section 246 of the Town
and Country Planning Act 1971 brought by the occupier of land, a company called
Joyce Shopfitters Ltd, against a decision of the Secretary of State for the
Environment contained in a formal decision letter of January 24 1975 whereby he
upheld, to a limited extent, an enforcement notice which had been served on the
appellants by the London Borough of Bromley as the local planning authority.
The historical
background to the matter is this. The appeal site lies between Willow Walk and
Starts Hill Road in Farnborough, Kent. It has had a somewhat chequered history.
In its entirety it comprises about 8,000 sq ft, and within that total area
there is a group of buildings stretching over two storeys which was described
at the inquiry as a two-storey building. The present appellants acquired the
land by stages in the latter part of the 1960s and early part of the 1970s, and
in their hands significant changes in the use of the land have occurred. There
was, as I have said, from the beginning this two-storey building situate on the
northern part of the appeal site, and when the land came into the hands of the
present appellants they proceeded to build extensions to the two-storey
building on the north, west and south sides, and these extensions went up in
the 1970 to 1972 period. There also stood from a much earlier date in about the
middle of the appeal site a pair of cottages called 8 and 9 Willow Walk, which
the appellants had demolished in or about the year 1972. Having made those
physical changes to the building which I have recited (the building of the
extensions and the demolition of the cottages), the appellants proceeded to use
the entirety of the site for the purposes of their business as shopfitters.
The land had
had a history of industry before. The inspector who held the inquiry in the
course of normal practice and the Secretary of State both accepted this change,
and what seems to have happened is that at the end of 1963, the significance of
which of course is that this is a date at which a development can become
protected by lapse of time, the two-storey building was being used as a
workshop, partly in connection with a fencing contractor’s business and the
manufacture of garden furniture, and partly as a workshop for car repairs and
car breaking. The remainder of the appeal site (which means the unbuilt-upon
land) was being used in conjunction with and ancillary to these two separate
uses of the building. Thus in the early stages we have this situation: two uses
on the land, the building being used for both of them and the unbuilt-upon land
being used as an ancillary to those two uses. Then, as I have already
described, the present appellants, when they had the power to do it, built
these extensions and knocked down the cottages, and thereafter used the
entirety of the property for their business of shopfitters.
In paragraph 8
of the decision letter is the Secretary of State’s consideration and opinion of
the consequences of those events which I have described so far. He says:
‘It is
considered that the change of use which took place in 1968 and 1970 from a fencing
contractor’s business, the manufacture of garden furniture and rustic work and
for car repairs and car breaking to a use for a joinery and shopfitting
business did not constitute development by virtue of the provisions of section
22 (2) (f) of the 1971 Act.’
That is a very
important decision, and speaking for myself I have no doubt it was a correct
one. The effect of those provisions and the Town and Country Planning (Use
Classes) Order 1972 is that there can be a change of use from one form of industrial
activity to another, and that is what the Secretary of State is saying was the
fact in 1968 and 1970. Accordingly the use of the premises for shopfitting has
become a secure use and one which cannot be enforced against so far as it
extended before the intervention of the appellants to the appeal site which I
have described.
Now one comes
to the notices themselves to see what it is which has given rise to complaint
by the planning authority, and there are two notices in question. The first one
is called notice A and is dated October 12 1973. It is directed to the
additions to the two-storey building to which I have referred. The complaint in
notice A is that these additions have been put up without permission, that the
erection of the additions is itself development, and this development having
been carried out without permission, the planning authority is calling upon the
appellants to pull down the unauthorised additions. This is no longer in
dispute, because in the course of the inquiry the appellants stated that they
had no answer to the first notice, and so that will stand, and in due course
the extensions will come down if they have not come down already. It is notice
B upon which the remaining contentions centre, and notice B is concerned with the
whole of the land–the entire site–surrounded by the red line upon the plan
attached to the notice, and it complains that the land is being developed by a
change of use, namely, a use for the purposes of a joinery and shopfitting
business; the notice calls upon the occupiers (the present appellants) to cease
that use and restore the land for the purposes for which it was formerly used.
Once it is
accepted, as I have already said it has been accepted, that the shopfitting
business was in the same use classes order as the previous industrial use, it
follows that notice B is doomed to failure in so far as the land to which it is
sought to be attached enjoyed the previous industrial use, because to that
extent the change from the previous industrial use to shopfitting would not be
a material change of use at all. So we come back to see what the Secretary of
State has done in regard to the various parts of this site in the light of
their previous planning history. So far as the two-storey building plus the
land which has never been built on is concerned, the Secretary of State has
accepted that that is protected from enforcement because it had an industrial
use before the change was introduced by the appellants, and for the reasons I
have already given that industrial use covers them in their shopfitting
activity. But so far as the extensions are concerned, the Secretary of State
takes the view that the industrial use never applied to them, because they have
only been in existence for some few years; they have not been up long enough,
as it were, to aspire to any established or secure planning use. The Secretary
of State has accepted the view of the planning authority that so far as they
are concerned they are to be regarded as having started with a nil use, and the
adoption of the shopfitting use is a change of use which is the subject of
enforcement. Similarly, the Secretary of State has taken the view that the
sites of the cottages were not used industrially before the cottages were
pulled down, and here again, as I understand his decision, he takes the view
that the sites of the cottages started with a nil use in about 1970 when the
cottages were pulled down and that there has not been time for them to aspire
to and acquire a secure use on their own account. Thus he has amended
enforcement notice B, and the effect of his amendments is to support the notice
and thus require the cessation of the shopfitting use on the areas previously
covered by the extensions to the two-storey building and by the two cottages.
That is the
only area in which contention remains between the parties, and Mr Moriarty says
the Secretary of State was
the inspector. Mr Spence supports the opposite. I read paragraph 9, which is
the crucial paragraph in the Secretary of State’s decision. He says:
‘With regard
to ground (d) it is clear from the evidence’–I remind myself that that is the
ground that the use in question has gone on since before 1964–‘that the site of
the two former cottages was not used for the joinery and shopfitting business
prior to 1970 at the earliest, as the cottages were used residentially until
1970 and were not demolished until 1972. The use of this part of the site has
not therefore become established. Furthermore, the extensions to the brick
buildings were erected between 1970 and 1972, and as their planning history
starts from the date of their completion and a material change of use occurred
on their first use in the business, the use of the extensions has not become
established. It is concluded that there has been no change of use constituting
development since the end of 1963 on the remainder of the site and the use of
this part of the site has become established within the meaning of section 94
of the 1971 Act. The appeal on ground (d) succeeds to this extent.’
Taking first
of all the extensions to the two-storey building, I think, with deference to
the Secretary of State, that he was wrong to allow the enforcement notice to
stand in regard to them. Those extensions had to go by virtue of enforcement
notice A. They were to be pulled down, and once they were pulled down the
site–the land thereby disclosed–in my view would have the same industrial use
which the rest of the land surrounding it had had. Neither the land nor the
extensions had been used for anything other than this industrial purpose, and
when the extensions have gone by virtue of enforcement notice A, then the
appellants will be entitled to use the site of the extensions for the purposes
of their industrial business. In those circumstances I think it was wrong, and
indeed oppressive, to have an enforcement notice relating to the use of this
land, because the enforcement notice could only take effect when the buildings
had gone, and once the buildings had gone the industrial use was a use which
could properly be practised upon the extension sites. So I would send this
matter back to the Secretary of State with certain advice. The first point
which I would venture to advise him upon is that it was inappropriate to apply
the second enforcement notice B in regard to the sites of the extensions
because when the extensions came down, as they had to come down, the land
thereby disclosed would enjoy the right of industrial user which enforcement
notice B seeks to stop.
What about the
site of the cottages? The Secretary of
State in my opinion has unquestionably treated the site of the cottages and the
rest of the land as though they were two different planning units. If they
could properly be described as two different planning units, his conclusions,
if I may say so with respect, would have been impeccable, because it would have
been perfectly correct that the sites of the cottages had not acquired a
separate use of their own, and perfectly correct that the remainder of the land
would have had a protected industrial use. But no one questions the proposition
followed by the inspector that the planning unit in this case is the entirety
of the land, and once that is established then the question material change of
use or no cannot be determined finally by looking at the individual parcels of
land comprised in the unit. It can only be determined finally by looking at the
unit as a whole. True, as Mr Spence says, in considering the position over the
unit as a whole, the Secretary of State would go and look at the component
parts. He would know that the houses had not had an industrial use before. He
would know that the sites of the extensions would have an industrial use for
the reasons I have already given. All this material would go into his mind, but
in the end he would have to say in regard to the unit as a whole whether there
had been a material change of use or not. I do not think he has ever reached
that stage in his consideration of the matter. So, in sending it back to him, I
would advise him that he must consider this final point. If he concludes that
there has been no material change of use in the area as a whole, then of course
the enforcement notice must go. It cannot stand in regard to part if there is
no material change of use in regard to the whole. If, on the other hand, he
comes to the conclusion that there has been a material change of use in the
area as a whole, quite different considerations would arise, and indeed I would
not seek to suggest that that is a conclusion which I would expect him to find,
because it seems to me it is contrary to the inspector’s decision and all the
basic facts of this case.
In summary,
therefore, I would allow this appeal. I would send the matter back to the
Secretary of State for reconsideration, inviting him to reconsider his
conclusions in regard to enforcement notice B, having particular regard (a) to
the fact that the sites of the extensions would enjoy an industrial use in any
event, and (b) to the fact that the question of material change of use or no
must be determined ultimately by reference to the circumstances affecting the
planning unit as a whole. It is not the obligation of this court to go through
all the points in the notice of motion. We can only deal with the matter which
has been raised before us, and I think that has been done.
MILMO J: I
agree with the judgment that has just been delivered.
WIEN J: I
agree also.
The
appellants were awarded costs.
