Planning permission for use of land for car-breaking – Ancillary use for sale of car components – Defendant using land for retail sales of car components – Plaintiff serving enforcement notice – Defendant reducing retail sales – Whether defendant having complied with notice – Whether terms of injunction sought by plaintiff unclear – Judgment for plaintiff
In 1960 planning permission was granted for the use of land near Kettering for the “storage, sorting, and cutting up of scrap materials” in accordance with a deposited application which referred to “the process and storage of ferrous and non-ferrous metals and ancillary uses connected therewith”. Since October 1992 the defendant had been trading from the site. Kettering Borough Council, the plaintiffs, claimed that the business was in fact a “pick your own car component sales outlet”, that such use was unlawful being outwith the permitted use, there being no grant of permission for change of use. The plaintiffs therefore issued an enforcement notice on July 15 1994 and P appealed. By a decision letter dated August 2 1995, the appeal was dismissed although the notice was amended to cover the change of use to mixed use and to require P to “stop using the land for retail sales to the public of second-hand vehicle parts”. Three months was allotted for compliance. At the time of the inquiry the inspector found that the retail sale of parts had become a major part of the commercial activity on the site and a primary use of the land. He indicated that any permitted ancillary element of sales of parts to the public would have been very limited. It was accepted that car-breaking with some ancillary sale of parts would come within the permitted use, and it was common ground that the defendant had continued to use the land for his business since the expiry of the time for compliance.
By proceedings issued in March 1997 under section 187B of the Town and Country Planning Act 1990, the plaintifsf sought an injunction contending that the defendant’s activities had continued unabated, since the time for compliance with the enforcement notice expired in February 1996, and that the retail sales activities were still a primary use of the land and not merely ancillary to the lawful use. The defendant argued that: (1) he had reduced the extent of retail activity to a level which was ancillary to the permitted 1960 use; (2) if at the time of the enforcement notice the use was unlawful as alleged, it had now changed; (3) the nature of the operation had changed so that the use complained of accounted for not more than 10% of turnover; and (4) the terms of the proposed injunction were unclear.
Held The plaintiffs were granted the relief sought.
1. On the evidence, there had been no material change since the inspector’s decision, and the defendant’s activity in sales to the public of parts and components had been much more than ancillary to dismantling and storage within the use permitted under the application of December 1960.
2. Under section 173 of the 1990 Act, the court had power to grant such injunctions as it thought appropriate. Injunctions must be clear in their terms so that a defendant might know precisely what he was permitted and not permitted to do. However, parliament had enacted a statutory scheme to control land use that did not admit of absolute precision in all uses, but nevertheless expected the scheme to be enforced. If adequate protection could not be given in any other way, an injunction might be granted in extensive terms. The defendant would only be in breach of an injunction in the terms sought if his retail sales to the public continued to be at such a level as to be more than ancillary, and therefore an injunction in the terms sought worked no unfairness and imposed on the defendant no undue burden or obligation.
James Findlay (instructed by the solicitor to Kettering Borough Council) appeared for the plaintiffs; David Attaras (instructed by Lamb & Holmes, of Kettering) appeared for the defendant.
