Town and Country Planning Act 1971, section 246 — Appeal from decision of Secretary of State for the Environment dismissing appeals against three enforcement notices — It was conceded during the hearing that the appellants’ criticism of one of the notices, which concerned the storage of containers, was valid and that this notice must be quashed — The other two notices required discontinuance of the use of a building and land comprising the planning unit for the purpose of repairing, as distinct from storing, containers — The Secretary of State had concluded that the applicants’ use was for the storage and repair of containers and that this was materially different from the previous use, which was confined to the storage of timber — Appellants contended that the requirement of the enforcement notices to discontinue the use for repair of containers was excessive as it might be thought to prohibit repair work which was ancillary to the established use for storage — After a review of case law the judge held that the enforcement notices were not open to this criticism — If the appellants could show that a certain amount of repair activity was a normal incident of the use of the site for the storage of containers they would not be in breach of the notices — It was not essential to include in the notices some qualifying or limiting expression ex abundante cautela as in Monomart (Warehouses) Ltd v Secretary of State for the Environment — Appeal against the two notices dismissed
This was an
appeal by North Sea Land Equipment under section 246 of the Town and Country
Planning Act 1971 against the dismissal by the Secretary of State of appeals
against three enforcement notices served on the appellants by Thurrock Borough
Council. The notices related to land of some 5 acres on the northern edge of an
industrial estate in West Thurrock.
W Hicks
(instructed by Merriman, White & Co) appeared on behalf of the appellants;
Simon Brown (instructed by the Treasury Solicitor) represented the first
respondent, the Secretary of State; the second respondents, Thurrock Borough
Council, were not represented and took no part in the proceedings.
Giving
judgment, GLIDEWELL J said: This is an appeal under section 246 of the Town and
Country Planning Act 1971 against the decision of the Secretary of State
dismissing appeals to him against three enforcement notices served by Thurrock
Borough Council, the second respondents. The enforcement notices are dated
April 12 1979. The Secretary of State’s decision letter was dated October 15
1980. The three enforcement notices all related to parts of the same land,
which is agreed, in total, to be the correct planning unit, which comprises an
area of some five acres on the northern edge of an industrial estate lying
north of London Road, West Thurrock. The site is mostly open in the sense that
it is not built upon, but there is one large building standing on it,
approximately in its centre.
The three
enforcement notices, during the hearing of the appeal before the Secretary of
State’s inspector and before me, were called respectively A, B and C. Notice A
related to the building only. That alleged a breach of planning control
consisting of a material change in the use of the building to use for the
purposes for the repair of containers, and required discontinuance of the use
of the building for the repair of containers. Notice B related to land less the
building, that is to say, the land less the site of the building. It related to
an alleged breach of planning control consisting of use for the purpose of the
repair of containers, and it required similarly discontinuance of that use.
Finally, Notice C, which related also, like B, to the land less the building,
alleged a breach consisting of a material change in the use of the land to use
for the purposes of the storage of containers and required discontinuance of
that use.
Of the facts
found by the inspector the following, in my view, are material to the matters
before me. The industrial complex, that is the industrial estate south of the
site, was owned and operated for many years by a firm called Magnet Joinery,
who imported timber and stored it for their local machine shops. They also
stored timber on the appeal site for later onward transporting to their
factories in York. The operation closed down in 1975. In 1950 or 1951 Magnet
Joinery extended timber storage on to the appeal site, first on the western
part which they owned, and later on to the whole of the site. The timber was
stored approximately 16 ft high in lanes served by diesel trains and mobile
cranes. It was found that that was the use of the land well before the
beginning of 1964. The inspector having made that finding of fact said:
Although the
destination of the timber was either to other parts of the appeal site for
making up into furniture or to another factory in Yorkshire the primary purpose
for its being on the site was to keep it until required. Therefore I do not
consider that it could be successfully argued that this use could have been
other than as a repository, notwithstanding the Council’s argument that part of
the site might be claimed to have enjoyed a Class IV use before that. In my
view the storage use created a new planning unit and that was the unit which
the appellants took over.
And then he
said:
The purpose
for which the appellants took over the site was to store containers.
He then made
findings about the number of containers, and in relation to repair, he said:
Nor could
there be a strong argument against the repairs aspect being ancillary
that is to the
storage;
if it were
only a minor operation. However, the facts are that 80% or so of the containers
brought on to the site require some form of work doing to them before they can
be stacked involving some 1,360 containers as a maximum figure. In my view this
represents an equal, if not a major, part of the present use pattern and so the
proper definition of the use should be a mixed use for storage and repair of
containers over the whole planning unit notwithstanding that the separate
elements operate at different levels on parts of the site. Therefore I would
consider that the allegations in all the notices should more properly have been
a change to a mixed use for the purposes of the storage and repair of
containers.
Finally, in
relation to the building, he noted that on November 7 1978 a determination
under section 53 was given that planning permission for the storage of
containers in the building was not necessary.
The appellants
took possession of the site in 1978. They then commenced to store containers on
it and to do work of repair to many of them as it was needed, both in the
building and in the open. The average number of containers on the site was said
to be about 1,000, but, as I have already said, the inspector found that there
could be up to 1,360. At the time of the inquiry there were approximately 800
on the site.
The appeals
against the enforcement notices were on several of the grounds set out in
section 88(1) of the Town and Country Planning Act 1971, but so far as I am
concerned the arguments before me related to a limited number of grounds. So
far as Notice C is concerned, there were two, that is to say (b) that there had
been no breach of planning control or (d) that if there had been, the
development took place before the beginning of 1964. In the case of Notices A
and B all that was argued was ground (f), that the steps required by the notice
to be taken exceed what is necessary to remedy any breach of planning control.
I deal first
with Notice C. Mr Hicks advanced three arguments, which I can describe shortly
in these terms. First, that there had been no material change of use between
the use of the land for the storage of timber and the use of the land for the
storage of containers, and he did not refer me to, but he had referred the
inspector to, the East Barnet case (East Barnet Urban District Council v
British Transport Commission [1962] 2 QB 484). Secondly, he argued that
the whole site was a repository within the meaning of the Town and Country
Planning (Use Classes) Order. It did, when it was used for the storage of
timber, fall within Class 10 of the Schedule to that order and thus no planning
permission was needed because by definition there was no material change of use
in continued use as a repository, albeit that what was being stored in the
repository was now containers rather than timber. Thirdly and
storage; (b) article 2(3) of the Town and Country Planning (Use Classes) Order
1972, reads, ‘References in this Order to a building may, except where
otherwise provided, include references to land occupied therewith and used for
the same purposes’; and (c) it followed that as the building clearly was in use
as a repository within Class 10 the effect of article 2(3) was that the land
which was occupied with the building could also be said to be within Class 10,
not by the direct route of his first argument but by the indirect route of
going via article 2(3), and thus again it followed that there was no material
change of use.
That third
argument is not to be found anywhere in the notice of motion despite the fact
that the notice of motion contains a series of different points, not all of
which were in fact argued before me. At the start of the hearing Mr Hicks
sought leave to amend the notice of motion to add this as a ground and, without
objection from Mr Simon Brown, I allowed the amendment.
I should say
that the fact, as I know from an earlier application made in this case, that Mr
Hicks himself was instructed only the day before the hearing started and the
coincidence of the hearing starting with an application for an amendment is at
any rate some prima facie evidence that the point is one in which Mr
Hicks himself had a part. If it be so, it merely shows the benefit of having an
additional mind bearing on a problem.
But be that as
it may, as soon as Mr Brown heard the argument developed on this third point he
asked for some little time to consider it and take instructions, and 20 minutes
or so later he conceded that the point was a good one and the enforcement
notice C must therefore be quashed. It is therefore unnecessary for me to
consider the first and second arguments in relation to that enforcement notice.
The only materiality of the lateness of the amendment to the notice of motion
is as to costs, to which I shall have to come in due course.
I come to
Notices A and B. As I have said, they both deal with an alleged use for the
purposes of the repair of containers. The Secretary of State’s conclusion was
that the applicants’ use was, and is, a mixed use for the storage and repair of
containers, and that it is materially different from the previous use which was
confined to the storage of timber. That conclusion of the Secretary of State is
on a matter of fact and degree, and there is no right to challenge it in this
court. For that reason Mr Hicks did not attempt to challenge it, but what he
did argue was that the requirement in the enforcement notices, which were
confirmed by the Secretary of State, to discontinue the use of the land in the
one case and the building in the other, for the purposes of the repair of
containers exceeded what is necessary because it may be thought to prohibit an
extent of repair work which is ancillary or incidental to the storage which is
an established use.
On this
argument I was referred to three decisions of the Queen’s Bench Divisional
Court, namely, Mansi v Elstree Rural District Council (1964) 16 P
& CR 153; Newport v Secretary of State for the Environment
(1980) 40 P & CR 261; and a very recent decision in Cord v Secretary
of State for the Environment and Torbay Borough Council [1981] JPL 40. In Mansi
the minister found that there was an established use of part of the site for
retail sales in addition to the overall established use of the site as a plant
nursery. The enforcement notice required the discontinuance of all retail sales
and the court held that went too far and should have been amended by the minister.
Mr Brown submits, and I agree, that Mansi was a case of an established
mixed use, that is to say a primary use as a nursery and a secondary limited
use for retail sales, and is not a case of a single established use to which
some other activity is said to be incidental or ancillary. So understood it
becomes clear, as Mr Brown submitted, that the decision in that case is not
relevant to the present case.
In Newport
it was found as a fact that at a motor repair garage a small number of cars,
not exceeding four at a time, was sold from time to time before 1964. The
inspector described the uses as a composite use, which I apprehend to mean the
same as what I mean by a mixed use. But the Secretary of State held that the
sale of cars was an ancillary use to the principal use of the garage for the
purpose of repairs. The court held, as in Mansi, that the Secretary of
State should have amended the enforcement notice to allow car sales to a
limited extent. In my view, despite the way the Secretary of State treated it, Newport
can properly be regarded as another example of a composite or mixed use.
Certainly this seems to have been the approach of Stephen Brown J who gave the
second judgment in the Divisional Court, and if that is right then, like Mansi,
it is not relevant to the present problem. But if it is wrong I must say that I
regard Newport as a decision related only to its own special facts.
The two
decisions of the Divisional Court which are, in my view, clearly relevant are
the recent decisions in Cord and the earlier decision in Monomart
(Warehouses) Ltd v Secretary of State for the Environment (1977) 34
P & CR 305. In Monomart planning permission had been given for the
erection of a builders’ merchants’ warehouse. After the building was erected
the appellants started to use it as what was called a ‘Do-it-yourself
supermarket,’ which in more formal language means for retail sales. An
enforcement notice was served requiring discontinuance of retail sales. On
appeal the Secretary of State upheld the notice but he added the words in
relation to the use to be discontinued ‘except as may be incidental to the use
of the premises as a builders’ merchants’ warehouse.’ In his judgment, Lord Widgery CJ, with whom
Parker and Peter Pain JJ agreed, said at p309:
. . . . .
this was not a case which required amendment by the Secretary of State at all.
I think that this notice on its construction and as it originally stood was a
notice complaining of the use of the premises for retail sale in excess of
retail sales permissible as ancillary or incidental to the main use. I think
that the initial requirement was similarly limited. I form that opinion because
one must read the enforcement notice as a whole, and it is quite impossible to
make sense out of this notice unless one assumes that the author in each case
where he refers to the retail sale of goods is referring to the retail sale of
goods in excess of the rights which may be incidental to the warehouse use. I
do not think that the words need have been amended at all, but I certainly take
the view that the Secretary of State is not to be criticised for having amended
them, and he was perfectly entitled to take the view ex abundante cautela
that this should be done.
In Cord,
where the facts were in essence similar to though rather more complicated than Monomart,
the Secretary of State had not added any words to an enforcement notice which
required discontinuance of an unestablished composite use. The court held that
he was not obliged to do so and dismissed the appeal.
Mr Hicks
submits that unless some such words as were used in Monomart are added
to the enforcement notice it will not be clear what his clients can or cannot
legally do and thus they will be at risk if they are prosecuted in the
magistrates’ court. I remind myself that the appellants’ right of appeal to
this court is on a point of law only. On this issue the test is that derived
from the judgment of Upjohn LJ, as he then was, in the well-known decision of Miller-Mead
v Minister of Housing and Local Government [1963] 2 QB 196, and to quote
his Lordship: ‘Does the notice tell the appellants fairly what they have done
wrong and what they must do to remedy it?’
In my judgment these notices satisfy that test. They tell the appellants
that they must discontinue the use of the land for the repair of containers. If
the appellants can show that a certain amount of repair activity is a normal
incident of the use of the site for the storage of containers they will not be
in breach of the notices. If the Secretary of State thinks it desirable in a
particular case to add words such as those used in Monomart, that is a
matter for his discretion. In this case he was in no way wrong in law in not
adding such words. The appeal against enforcement notices A and B therefore
fails and it is dismissed.
I have already
heard argument on the question of costs, anticipating that Mr Brown would be
unable to be here. The position now is this, that I have found for the
appellants on the enforcement notice which was the most important from their
point of view and on which everybody accepted that the major part of the
argument would have centred, and indeed did centre, as far as Mr Hicks’
argument was concerned, but I have found for them on a ground which was
adumbrated only at the last minute. Mr Brown made the point, which he was
perfectly entitled to make, that had that ground been in the original notice of
motion it must be taken as being very probable that the Secretary of State
would have been advised to concede that argument before ever the matter came to
court. It occurs to me that if that had happened it may well have been that the
matter would not have come to court at all. Whether it would still have been
desirable to argue Notices A and B I simply do not know. Be that as it may, on
Notices A and B of course the appellants have failed. Both counsel asked that
their respective clients should have costs, possibly limited to a proportion.
One can go through a series of mathematical exercises to try to arrive at what
is fair in this case, but I take the view that overall the major point is that
very probably the Secretary of State would not have resisted the appeal if the
amended point had been put in the notice of motion originally and I think it
right that he should have some of his costs. The order that I have concluded is
fair in that the appellants should pay half the Secretary of State’s costs.
Leave to
appeal, if necessary, was given.
