Town and Country Planning–Appeal against decision of Secretary of State upholding enforcement notice–Planning permission for petrol station, car wash, car showroom and tyre-fitting bays–Appellants, owners of discount stores, purchased site and arranged with another company for the latter to make a temporary ‘token’ use of part of site for offer of cars for sale–Appellants then opened a retail store for their own business in the showroom–Not a permitted change of use within the Town and Country Planning (General Development) Order nor in any case within the ambit of the global permission originally granted–Appeal dismissed
This was an
appeal by Kwik Save Discount Group Ltd against a decision of the Secretary of
State for the Environment who upheld two enforcement notices against the
appellants. This judgment was concerned only with the first, as the second
would have arisen only if the court had held that the Secretary of State came
to a wrong decision on the first. The complaint in the notice was that there
had been a material change of use of the land from vacant land intended for
development as a self-service filling station to use for the purpose of a
retail discount store with ancillary car parking.
Andrew Rankin
QC and W Rankin (instructed by Lee, Bolton & Lee) for the appellants; Harry
Woolf (instructed by the Treasury Solicitor) for the Secretary of State. The
local planning authority, Oldham Borough Council, was not represented and took
no part in the proceedings.
Giving the
first judgment at the invitation of Lord Widgery CJ, TALBOT J said that on
December 10 1973 detailed planning permission was granted to a company known as
Transport and General Investments Ltd for a self-service petrol station, car
wash, car showroom and tyre-fitting bays on the site. In March or April 1974
the appellants contracted to purchase the site, the vendors reserving an option
to buy back that part which was allocated for the petrol filling station.
Following the
acquisition, the appellants erected the building. In March 1975 they granted
another company a concession for the sale of cars under an agreement which
provided, inter alia, that the premises were to be rent-free, Kwik Save
were to supply the capital funds, guarantee up to £25,000 required in
connection with the business, pay any loss and be entitled to any profits. Five
cars were advertised in two newspapers on March 13 1975, and the concession was
terminated on March 25 1975. Following that termination, the appellants, on
April 10 1975, opened in the showroom a retail store for the purposes of their
business. They also took from Transport and General Investments Ltd–who had
exercised their option under the agreement to buy back that part of the
property allocated to the petrol filling station–a licence for the use of that
site as a car park.
The inspector
who conducted the inquiry came to the conclusion, which was accepted by the
Secretary of State, that the offering of five cars for sale for a period of
about one month in a building with a floor area of 20,000 sq ft, amounted to no
more than a token use of the appeal premises as a shop for the sale of motor
vehicles, so minimal as to be of no planning significance. He concluded that
the General Development Order gave permission for a change of actual use as a
shop, not a change from a permitted use which had not become operative. Thus
there was no effective use of the new building on the appeal site until the
appellants used it as a discount store, which constituted a material change
from the previous non-user.
The Secretary
of State accepted that conclusion. Mr Rankin argued that the Secretary of State
was wrong in law, and that the matter should be remitted to him for guidance.
He relied on the Town and Country Planning (General Development) Order 1977
(precisely the same, so far as material, as the 1973 Order, which was
applicable at the material time) which provided in Class III that development
consisting of a change of use from use (inter alia) as a shop for the
sale of motor vehicles to use as a shop for any purpose included in Class I of
the schedule to the Town and Country Planning (Use Classes) Order 1972 was a
permitted development. Therefore, he argued, the development was permitted by
that part of the order because the appellants in changing the use to that of a
discount store did so from its previous use as a shop for the sale of motor
vehicles. Mr Rankin accepted that the appellants involved themselves in what
could only be described as a device in order to bring themselves within the
terms of the order. But he submitted that it did not matter how many cars there
were, or what were the terms of the agreement, eg that Kwik Save guaranteed the
car sales company against any losses, and undertook to subsidise them if
necessary; nor did it matter that the period of time was short. There was no
qualifying adjective to ‘use.’
Mr Woolf
submitted that ‘use’ should be qualified by
from section 22(1) of the 1971 Act, where ‘development’ was defined inter
alia as ‘any material change of use of any buildings or other land.’ He pointed out that what in fact took place
was only a token activity, with only the trappings. No cars were sold, and five
only were concerned for a short period of time as being advertised.
The very fact
that a device was resorted to by the appellants made his Lordship suspect the
use to which the land was subjected. The Secretary of State found that it was a
de minimis use, and his Lordship did not disagree with that view, and
held that it was not a use within the order. But there was a wider ground
which, in his Lordship’s judgment, led to the conclusion that the appellants
were wrong. Here there was a grant of planning permission in December 1973 for
the activity involving motor cars, self-service petrol station, car wash, car
showroom and tyre-fitting bays. That was the permission. It was a grant for
that activity, and in his Lordship’s view it was not within that grant of
permission to take part of the site covered by the permission and make use of
it for some business which was quite different from that which was covered by
the grant of planning permission. In his Lordship’s judgment the appeal failed.
LORD WIDGERY
CJ and ACKNER J agreed.
The appeal
was dismissed with costs. Leave to appeal to the Court of Appeal was granted.
