Town and Country Planning Act 1971–Enforcement notice–Permission obtained by previous owners of a petrol station, garage and workshop to use the workshop as a retail showroom–Present applicants took over workshop and used as a general supermarket–Whether material change of use–Contention that workshop had become a new planning unit which could be used for any retail sales rejected–Implied restriction to sale of motor accessories–Appeal against enforcement notice rejected
This was an
appeal by Kwik Save Discount Group Ltd against a decision of the Secretary of
State for Wales, upholding an enforcement notice served on the appellants by
Ynys Mon Borough Council in respect of the use of land at Holyhead, formerly a
workshop forming part of garage premises, as a retail supermarket.
Andrew Rankin
QC and G Edwards (instructed by Lee Bolton & Lee, agents for Edward Hughes
& Co, of Rhyl) appeared for the appellants; Harry Woolf (instructed by the
Treasury Solicitor) for the Secretary of State. The borough council was not
represented and took no part in the proceedings.
Giving
judgment, LORD WIDGERY CJ said that the petrol station and garage seemed to
have been there for a good many years. In September 1972 Esso Petroleum
acquired some sort of interest in the garage premises and applied to modernise
and adapt them. They wished to use the workshop as a retail showroom but there
was nothing in the legend to indicate what was to be sold in the showroom. On
January 2 1973 the planning authority issued a formal grant of planning
permission permitting ‘alterations and extensions to the service station in
accordance with plan and specification.’
At some time between then and now the present applicants acquired an
interest in the workshop–but not in the petrol station, diagnostic bays,
etc–and they then, according to the enforcement notice, proceeded to use the
workshop as a retail supermarket.
Mr Rankin
submitted that, with the severance of the workshop from the rest of the site so
far as activities and control were concerned, a new planning unit came into
existence, and, since no express restriction was imposed by the last planning
permission, the result was that the workshop was to be treated as a separate
planning unit to be used for the retail sale of anything. The local planning
authority argued that there was no new and separate planning unit, and on a
proper construction of the 1973 planning permission there was an implied
restriction on the type of goods which might be sold, ie automobile goods of
one kind or another.
He (his
Lordship) thought that the planning authority was right on both points. He did
not think one could create a new planning unit out of a complex of buildings
such as these, which were supplementary one to another, simply by selecting one
of the buildings and conveying it to an owner or occupier different from the
owner or occupier of the rest of the site. These buildings were obviously intended
to serve each other as a combined garage or garage premises. It seemed to his
Lordship that the restriction contended for by the planning authority could
properly be implied into the 1973 permission, and a change in the boundary of a
planning unit could not be achieved merely because some person had acquired a
partial interest and wished to use it for some purpose different from that of
the remainder of the planning unit.
TALBOT and
ACKNER JJ agreed.
The appeal
was dismissed with costs. Leave to appeal to the Court of Appeal was granted.
