Appeal from Secretary of State’s decision upholding enforcement notice–Area initially zoned for commercial purposes–Planning permission granted by planning authority to themselves for residential purposes–Use by appellants of building for office as estate agency–Alleged material change of use–Whether Secretary of State took into account irrelevant considerations or failed to take into account relevant considerations–No error on point of law–Appeal dismissed
This was an
appeal by Moldene Ltd and Penway Ltd against a decision of the Secretary of
State upholding, with modification, an enforcement notice served upon them by
the London Borough of Camden in respect of an alleged material change of use of
a building at 56 Euston Road, London NW1, for office purposes, namely as an
estate agency. The appellants argued that the Secretary of State had taken into
account irrelevant material and failed to take into account relevant material.
Michael Rich
(instructed by R G Freeman & Co) appeared for the appellants; David Latham
(instructed by the Treasury Solicitor) represented the Secretary of State.
Giving
judgment, TALBOT J said that in 1975 outline planning permission was granted
for the development by the council of the area, including the property in
question, by the erection of six terraced residential properties, the
permission envisaging the construction on plot 54 of an archway with a
maisonette above, to lead to an open space and old people’s home. In the
initial development plan the area was zoned primarily for commercial purposes.
The local
authority served an enforcement notice on the appellants alleging a breach of
planning control by the use of the land for office purposes, and requiring
within 60 days (i) discontinuance of the use of the land for office purposes;
(ii) removal of all office furniture and equipment and other things used in
connection with such use; (iii) restoration of the land to its condition before
the development took place. The Secretary of State, in his decision letter,
said that he proposed to delete the two latter requirements and, in line with
the inspector’s recommendation, to extend the period for compliance to one year.
The Secretary of State accepted his inspector’s conclusions.
Mr Rich
invoked section 88(1)(a) of the Town and Country Planning Act 1971, which
enabled him to argue on appeal that planning permission ought to be granted;
section 88(5), which enabled the Secretary of State, if he saw fit, to grant
such permission; section 88(6), which required the Secretary of State to have
regard to the provisions of the development plan so far as material; and
section 89(6) which gave power to the planning authority to extend the time for
compliance with notice.
Mr Rich argued
that very different results obtained if there was, on the one hand, an
extension of time for compliance with the enforcement notice, and, on the
other, a grant of temporary planning permission. In the first instance it was
clear that at the end of the time, apart from the planning authority’s power to
extend it, that would become the end of the matter. If the compliance were not
brought about, the appellants would be in breach of the enforcement notice and
subject to penalties, whereas if planning permission were granted the
appellants could once more at the end of the period apply for a further
planning permission. It was quite plain that Mr Rich was right in drawing the
distinction, but his Lordship’s view was that no point of law arose as to
whether the one, or the other, was adopted by the Secretary of State. It was
entirely a matter for him, having taken into account all the relevant matters,
to decide which was the proper one to adopt.
Mr Rich further
argued that the Secretary of State was obliged to consider the initial
development plan (that was so–the Act said so). Mr Rich contended that the
Secretary of State did not consider the initial development plan, nor certain
other material considerations, and that he considered certain immaterial
considerations. Mr Rich relied upon the fact that the area was zoned for
commercial purposes, that planning permission had been granted by the planning
authority to themselves for redevelopment of the appeal site, and that that
might only be an intermediate measure. He argued that the inspector’s decision
that initial development zoning had been superseded in the circumstances was
wrong.
Had the
Secretary of State omitted to have regard to the initial development plan, or
was it a case where he had set it aside as having no bearing on the
matter? So long as he took it into
account, that was a matter for him, and his decision could not be attacked.
Having regard
to the Secretary of State’s conclusions based on the findings of fact, his
Lordship was quite unable to say that this was a case where the Secretary of
State could plainly be said to have omitted to consider that which he ought to
have considered, or considered that which he ought not.
His Lordship
would dismiss the appeal.
WATKINS J
agreed.
LORD WIDGERY
CJ, also agreeing, said he searched in vain for a point of law on which the
Secretary of State could be said to have gone wrong. All the issues were
matters of fact or expert opinion, not of law.
The appeal was
dismissed, with costs against both appellants.
