Maldon District Council v Hammond

Enforcement notices — Deemed planning permission — Whether council’s failure to enforce against appellant’s car-repair activities leading to deemed grant of permission  – Construction of section 173(11) of Town and Country Planning Act 1990 — Appeal dismissed The appellant lived on a site where he stored and repaired damaged cars. Between 1986 and 1997, the respondent council issued various enforcement notices against the appellant, requiring him to demolish a bungalow that he had built on the land, to move out of and remove a mobile home on the site and to demolish a workshop and hard standing. The council received a number of complaints concerning the storage of wrecked vehicles on the land, although none of the enforcement notices specifically mentioned this. In 2000, the appellant made an unsuccessful application for a lawful development certificate in respect of his use of the land for the storage and repair of vehicles, residential use of land and leisure purposes. In 2002, the council obtained injunctions relating to the appellant’s use of the land and requiring, inter alia, the removal from the land of “any motor vehicle whatsoever”. The judge rejected the appellant’s argument that the storage and repair of vehicles was immune from enforcement action because it constituted a change of use in planning terms that had continued for more than 10 years. The judge found that the evidence of use prior to 2000 was insufficiently clear to justify a finding that the appellant was engaged in more than could be properly regarded as use ancillary to that of a dwellinghouse. On appeal against that decision, the appellant relied upon section 173(11) of the Town and Country Planning Act 1990. This provided that where an enforcement notice in respect of any breach of planning control could have required an activity to cease but had not done so, planning permission should be treated as having been granted for those activities once all the requirements of the notice had been complied with. He contended that the enforcement notices issued by the council could have required cessation of car storage and repair activities, but they had not done so. Held: The appeal was dismissed. Under section 173(11), a local planning authority were no obliged to scour a planning unit for potential breaches of planning control (irrespective of whether they had sufficient evidence to prove those breaches) for fear that planning permission for any such breaches might otherwise be deemed to be granted. The focus had to be on the particular breach of planning control identified in the enforcement notice. Following the approach in Scott v Secretary of State for the Environment unreported 16 October 1990, section 173(11) applied only to uses of the land that were alleged by the enforcement notice itself to be in breach. If a use was not alleged to be in breach of planning control, the notice could not require that use to cease, and deemed planning permission could not arise out of the failure so to require. In the present case, the position from the council’s perspective had been that the only car-repair use that could be proved was the one ancillary to the appellant’s use of the bungalow, which would come to an end by necessity when the bungalow was demolished. The council had decided not to issue an enforcement notice in respect of any change of use to a car-repair use because it did not appear to them at the time that the existing use involved a breach of planning control. It followed that the appellant could not have obtained deemed planning permission for his car-related activities by virtue of section 173(11). Patrick Ground QC (instructed by Gepp & Sons, of Chelmsford) appeared for the appellant; Edmund Robb (instructed by the solicitor to Maldon District Council) represented the respondent. Sally Dobson, barrister