Town and Country Planning Act 1971 — Appeals against dismissal by Secretary of State of appeals against enforcement notices — Enforcement notices alleging unauthorised use of premises for showing cine films in coin-operated booths — Requests by Secretary of State for statements of facts in accordance with section 88(2) of the Act of 1971 — Requests not complied with by appellants — Following reminders by the Secretary of State which failed to produce the statements requested the appeals were dismissed — In the present appeals to the High Court both appellants submitted that the Secretary of State was wrong to dismiss their appeals, that it was not necessary to state facts as all relevant facts were known to the minister, and that only matters of law arose — Held, rejecting this submission, that in order to put forward any of the grounds relied on, and in particular grounds (a) and (b) in section 88(1), it would be necessary to establish facts relating to the planning history and use of the relevant premises — The appellants were under a duty to state the facts on which their appeals were based and, on failure to do so despite reminders and warnings, the Secretary of State was entitled to dismiss the appeals — Howard v Secretary of State for the Environment [1975] 1 QB 235 cited — It may be noted that in view of the material times in each case the court dealt with both appeals under the provisions of the Town and Country Planning Act 1971 before its amendment by the Local Government and Planning (Amendment) Act 1981 — Appeals dismissed
These were two
appeals under section 246 of the Town and Country Planning Act 1971 against the
Secretary of State’s dismissal of two appeals contesting alleged unauthorised
use of premises in Old Compton Street and Tisbury Court, London W1, in respect
of which enforcement notices had been served by Westminster City Council, the
second respondents to the present appeal. The alleged unauthorised use in both
cases was the showing of cine films in coin-operated booths.
L L Blake
(instructed by Adrian James & Co) appeared on behalf of the applicants;
Simon Brown (instructed by the Treasury Solicitor) represented the first
respondent, the Secretary of State; the second respondents were not represented
and took no part in the proceedings.
Giving
judgment, STEPHEN BROWN J said: The court has before it two appeals under
section 246 of the Town and Country Planning Act 1971 against the dismissal by
the Secretary of State for the Environment of appeals against enforcement
notices alleging unauthorised use of premises within the City of Westminster.
The points
raised in each of these appeals before this court are similar and at the
invitation of counsel I have readily agreed to hear the appeals together. The
appellants in each case are represented by the same counsel, Mr Blake, and the
Secretary of State is represented by Mr Simon Brown. The second respondent, the
City of Westminster, does not appear in either appeal.
Although the
point of law in each appeal is the same it is necessary to refer briefly to the
facts relating to each appeal and I turn first to the appeal of PAD
Entertainments Ltd.
The chronology
of events in relation to this appeal is as follows: on March 20 1981 the City
of Westminster Council, as local planning authority, served an enforcement
notice on the appellant in respect of basement premises at 11 Old Compton
Street, London W1, alleging an unauthorised use of the premises, namely the
showing of cine films in coin-operated film booths.
On March 30
1981 the appellant through its solicitors submitted a notice of appeal against
that enforcement notice to the Secretary of State for the Department of the
Environment. The letter (which is included in the bundle of agreed documents) reads
as follows:
Dear Sirs, Re:
Basement 11 Old Compton Street, W1. We act for PAD Entertainments Ltd who has
been served with an enforcement notice from the City of Westminster under
reference S/P/CAB/81/81/3 in respect of an alleged unauthorised use of the
basement of the above premises for the purposes of showing cine films in
coin-operated booths.
Would you
please note that our client wishes to appeal on the basis of the grounds set
out in the Town and Country Planning Act 1971 (as amended) (section 88(1)(a)
and/or (b) and/or (c) and/or (d) and/or (e) and/or (f) and/or (g). Yours
faithfully.
Section 88(1)
provides:
A person on
whom an enforcement notice is served, or any other person having an interest in
the land may, at any time within the period specified in the notice as the
period at the end of which it is to take effect, appeal to the Secretary of
State against the notice on any of the following grounds —
(a) that planning permission ought to be granted
for the development to which the notice relates or, as the case may be, that a
condition or limitation alleged in the enforcement notice not to have been
complied with ought to be discharged;
(b) that the matters alleged in the notice do not
constitute a breach of planning control;
(c) in the case of a notice which, by virtue of
section 87(3) of this Act, may be served only within the period of four years
from the date of the breach of planning control to which the notice relates,
that that period has elapsed at the date of service;
(d) in the case of a notice not falling within
paragraph (c) of this subsection, that the breach of planning control alleged
by the notice occurred before the beginning of 1964;
(e) that the enforcement notice was not served as
required by section 87(4) of this Act;
(f) that the steps required by the notice to be
taken exceed what is necessary to remedy any breach of planning control;
(g) that the specified period for compliance with
the notice falls short of what should reasonably be allowed.
I should make
it clear that those subparagraphs appear under section 88(1) of the 1971 Act
before it was recently amended.
That letter of
the appellant’s solicitors raised in the alternative every ground upon which an
appeal might be made to the Secretary of State against the enforcement notice.
On April 13
1981 the Secretary of State wrote to the solicitors for the appellant
requesting a statement of facts pursuant to section 88(2) of the Town and
Country Planning Act 1971. Section 88(2) of the 1971 Act, before its recent
amendment, read as follows:
An appeal
under this section shall be made by notice in writing to the Secretary of
State, which shall indicate the grounds of the appeal and state the facts on
which it is based; and on any such appeal the Secretary of State shall, if
either the appellant or the local planning authority so desire, afford to each
of them an opportunity of appearing before, and being heard by, a person
appointed by the Secretary of State for the purpose.
On May 12
1981, apparently not having received any reply to his request for a statement
of facts under section 88(2), the Secretary of State wrote again issuing what
is described as a ‘reminder’ for the statement of facts which he had requested
on April 13.
On June 26
1981 the Secretary of State wrote yet again to the appellant’s solicitors
saying that if a statement of facts was not forthcoming within 14 days from
that date the appeal would be dismissed.
On July 7 1981
the appellant’s solicitors, in reply to that letter, wrote as follows:
Thank you for
your letter of June 26. We shall not be relying on any facts but simply relying
on matters of law principally under section 88(1)(b) although we shall also be
relying on the grounds set out in section 88(1)(a) of the Town and Country
Planning Act 1971. Yours faithfully.
No further
communication passed between the Secretary of State and the appellant until
August 18 1981 when a letter signed by Mr Bennett, who was authorised by the
Secretary of State to sign on his behalf, was written to the appellant’s solicitors.
That letter reads as follows:
1. I am
directed by the Secretary of State for the Environment to refer to your letter
dated March 30 1981 and to subsequent correspondence about the appeal against
the enforcement notice served by the Westminster City Council culminating in
the department’s letter of June 26 1981.
(2) As you have still not provided the required
information, the Secretary of State considers that he must now dismiss the
appeal on the grounds that he has inadequate information to enable him to take
any other action. Accordingly he hereby dismisses the appeal.
The letter
then went on to refer to section 246 of the Town and Country Planning Act 1971,
which provides for a right of appeal on a point of law to the High Court. It
concluded by saying:
Subject to an
appeal to the High Court, the enforcement notice dated March 20 1981 now takes
effect, in accordance with the provisions of section 88(3) of the Town and
Country Planning Act, 1971.
Those are the
facts in the case of PAD Entertainments Ltd. It is to be observed that all the
events, which included the dismissal by the Secretary of State of the appeal by
letter of August 18 1981, took place before the Local Government and Planning
(Amendment) Act 1981 — which amended section 88 of the Town and Country
Planning Act 1971 — came into force. That Act came into force on August 27
1981. It is quite plain that in the case of PAD Entertainments Ltd the appeal
must be considered entirely upon the basis of the Town and Country Planning Act
1971, before its recent amendment.
It is
convenient if I briefly state the facts in the second appeal before dealing
with the submissions which have been made and which apply to both appeals.
This is the
appeal of Moorchat Ltd and the short facts of this case are that on August 12
1981 the City of Westminster Council, as local planning authority, served an
enforcement notice in respect of the ground-floor premises of 3 Tisbury Court,
London W1, alleging an unauthorised use of the said premises, namely the mixed
use of the premises as a shop for the viewing of films from coin-operated
booths.
On August 19
1981, the appellants, through their solicitors — the same solicitors who acted
for the appellant PAD Entertainments Ltd — submitted a notice of appeal by
letter which accompanied the printed form which is exhibited to the agreed
bundle of documents in this case, Exhibit AWJ1. That is a printed enforcement
notice appeal form for appeal to the Secretary of State for the Environment. It
sought to rely upon each of the grounds, severally or alternatively, in section
88(1)(a) to (g).
On that form
there is a printed statement at the bottom of the first page which reads: ‘My
statement of facts, in support of each of my grounds of appeal, as indicated
above, is given overleaf in item 7.’
There then follows the wording: ‘Failure to do so may result in the
dismissal of the appeal.’
Under item 7
the appellant’s solicitors stated: ‘The main ground which the appellant relies
on is that the matters alleged in the notice do not constitute a breach of
planning control.’ That could be
construed as a reference to subparagraph (b) of section 88(1).
It is also
noted that in item 4 where the question on the form is ‘Do you agree to have
your appeal dealt with on the basis of written statements by the parties and an
inspection of the site by an officer of the Department?’ an ‘X’ has been put in
the ‘No’ box. That seems to indicate a request for a hearing.
The notice of
appeal was given on August 19 1981. On September 11 1981 the Department of the
Environment requested a statement of facts pursuant to section 88(2) of the
Town and Country Planning Act 1971.
On October 26
1981, and again on November 17 1981, the Secretary of State issued reminders
seeking the submission of the statement of facts.
On November 24
1981 the Secretary of State informed the appellant’s solicitors that the appeal
would be dismissed unless a statement of facts was forthcoming within 14 days
from that date. On December 4 1981 the appellant’s solicitors wrote to the
Secretary of State stating: ‘We shall not be relying on any facts but simply
relying on matters of law principally under section 88(1)(b) of the Town and
Country Planning Act 1971.’
On December 23
1981 the authorised representative of the Secretary of State wrote dismissing
the appeal. It is in the same terms as the letter which dismissed the appeal of
PAD Entertainments Ltd, save and except that, time having moved on, it refers
in paragraph 4 to the enforcement notice taking effect in accordance with the
provisions of section 88(10) of the Town and Country Planning Act 1971. That
was a provision coming into effect by way of amendment by the Local Government
and Planning (Amendment) Act 1981.
In each of the
two appeals the Secretary of State had requested on several occasions the
submission of a statement of facts on which the appeal was based under the
provisions of section 88(2) of the Town and Country Planning Act 1971. Not
having received such a statement, and after a warning that unless such a
statement was
dismiss the appeals.
I should say
at this stage that although the time sequences are slightly different in the
case of each of these appeals Mr Simon Brown, for the Secretary of State, for a
number of reasons, agrees that the court should deal with both appeals under
the provisions of the Town and Country Planning Act 1971 before its amendment
by the 1981 Act. It is not necessary to go into those reasons, but it is quite
plain that not only was the PAD appeal entirely concerned with events which
were completed before the coming into force of the 1981 Act but in the appeal
of Moorchat Ltd the notice of appeal against the enforcement notice was
submitted before the 1981 Act came into force.
In any event
because of the operation of the Interpretation Act 1978, it would be right and
just to Moorchat Ltd not to seek to apply to their case the provisions of the
1981 Act which are now in force and the statutory rules which have been made
thereunder, which came into force in January of this year. The court proceeds
to deal with both these appeals upon the same statutory basis.
The notice of
motion in each case seeks an order of this court to quash the dismissal of the
appeal against the enforcement notice by the minister and asks that the court
should remit the matter to the minister with its opinion for his further
consideration.
The grounds of
appeal stated in the case of PAD Entertainments Ltd are that the appellant
complied with section 88(2) of the Town and Country Planning Act 1971 and the
Secretary of State had no power to dismiss the appeal. In the Moorchat Ltd case
the grounds of appeal are that under section 88(1)(b) of the Town and Country
Planning Act 1971 the appeal against the enforcement notice is one of law and
not of fact; and secondly that the appellant complied with section 88(2) of the
Town and Country Planning Act 1971 and the Secretary of State had no power to
dismiss the appeal.
Mr Blake has
submitted that the Secretary of State in his decision letter in each case was
wrong to say that he had inadequate information to take any other action than
to dismiss the appeal. That is a reference to paragraph 2 in the case of PAD
Entertainments Ltd, which states: ‘As you have still not provided the required
information, the Secretary of State considers that he must now dismiss the
appeal on the grounds that he has inadequate information to enable him to take
any other action. Accordingly he hereby dismisses the appeal.’ The same statement was made in the decision
letter in the appeal of Moorchat Ltd.
Mr Blake’s
submission is that the relevant facts under subparagraphs (a) and (b) of
section 88(1) were already stated in the enforcement notice. In fact, in so far
as any other subparagraph may appear to have been relied upon as a result of
the respective notices of appeal, the minister could have gone on quite
properly to dismiss those grounds, but he could not, says Mr Blake, properly
have dismissed the enforcement notice in so far as it relied on grounds (a) and
(b) of section 88(1).
Mr Blake went
on to say that matters such as the proportion of floorspace used for the
alleged use which constituted the breach of planning control would be a matter
of evidence at the hearing. He submits that it was not incumbent upon either
applicant to give any factual details to the Secretary of State under the
provisions of subsection (2) of section 88, contending that the facts were already
known to the minister.
He added
during the course of the hearing two further grounds of appeal which do not
appear upon his notice of motion. Mr Simon Brown has not taken any point about
that. He (Mr Blake) has gone on to submit that as a matter of law the Secretary
of State should not have dismissed either appeal without giving the appellant
the opportunity of presenting the facts at a hearing.
He has taken a
further point under the provisions of section 88(7) of the Town and Country
Planning Act 1971, which provides:
Where an
appeal against an enforcement notice is brought under this section, the
appellant shall be deemed to have made an application for planning permission
for the development to which the notice relates and, in relation to any exercise
by the Secretary of State of his powers under subsection (5) of this section,
the following provisions shall have effect.
That is to say,
the conditions as to the granting of any planning permission and the
determination thereof by the Secretary of State.
The principal
ground of appeal is quite plainly that which Mr Blake put as his first ground
and that which appears in each of the notices of motion; that it is not
necessary to state facts, all the relevant facts were already known to the
minister and only matters of law arose.
I think Mr
Blake found it somewhat difficult to seek to apply that submission to
subparagraph (a) — that is the ground asserting that planning permission ought
to be granted for the development to which the notice relates — but he has made
it clear now that the effective ground in each appeal was intended to be that
of subparagraph (b); that matters alleged in the notice do not constitute a
breach of planning control. He contends that that was purely a matter of law,
as the appellants’ solicitors had contended in each case after they had pressed
for their statement of facts.
Mr Simon
Brown, for the minister, submits quite shortly that that must be wrong. Matters
of law could arise only upon considering the facts of each particular case. In
order to be able to consider whether the matters alleged in the notice
constituted a breach of planning control it would be necessary to consider the
facts relating to the planning history of the relevant premises and of the
actual use being carried on at the premises. Mr Brown submits that these must
be matters of fact and he urged the court to consider Mr Blake’s submission
that matters relating to the proportion of floorspace used for shop use or
coin-booth viewing use would be matters to be dealt with by evidence at the
inquiry. Mr Brown says that clearly involves an acceptance that they must be
matters of fact.
I have no
hesitation in finding that facts were required and that the appellant in each
case did not provide the factual information which was required to be provided
by subparagraph (2) of section 88 — the facts upon which the appeal is based.
This is not a
case where the court has to consider whether there was a sufficient compliance
with that request. In each case the appellant, through his solicitors, asserted
that it was not necessary for him to give any facts to the minister because he
was only relying upon matters of law.
One is perhaps
prompted to comment that that would seem to fit in strangely with the request
for a hearing rather than the submission of written representations. But that
is merely a comment upon the way in which the matter was dealt with. I have no
doubt at all that in order to put forward any of the grounds sought to be
relied upon, and in particular grounds (a) and (b) under section 88(1), it
would be necessary to establish facts relating to the planning history and use
of each of the relevant premises.
The second
ground of appeal which Mr Blake has urged before this court is that as a matter
of law the Secretary of State should not have dismissed the appeal without
giving the appellant the opportunity of presenting the facts at a hearing. That
is a reference to the provision under section 88(2) which follows the
requirement:
An appeal
under this section shall be made by notice in writing to the Secretary of
State, which shall indicate the grounds of the appeal and state the facts on
which it is based; and on any such appeal the Secretary of State shall, if
either the appellant or the local planning authority so desire, afford to each
of them an opportunity of appearing before, and being heard by, a person
appointed by the Secretary of State for the purpose.
Mr Brown at
one stage submitted that there had not been a request by either party for a
hearing of this case, but on being shown the document which is the printed
notice of appeal in the case of Moorchat where the ‘X’ appears in the ‘No’ box
against item 4 — which asks whether the party would agree to the matter being
dealt with by written statements and an inspection of the site — he does not
pursue this particular argument in relation to the submission made by Mr Blake.
What he does
submit in answer to Mr Blake’s submission is that that provision is subsidiary
to, and indeed consequential upon, the notice in writing having been given
indicating the ground of appeal and the statement of the facts upon which it is
based. It is after that has been done that the subsection goes on to provide:
‘And on any such appeal the Secretary of State shall, if either the appellant
or the local planning authority so desire, afford to each of them an
opportunity of appearing before, and being heard by, the person appointed by
the Secretary of State for the purpose.’
I have no
hesitation in accepting Mr Brown’s argument. I think that that requirement can
only be conditional upon the two previous matters having been complied with;
that is the notice of appeal stating the grounds upon which it is based, and
the statement of facts upon which it is based having been complied with. The actual
conduct of the appeal would then take place in accordance with the desires of
the parties.
The
appellants’ third ground is that under section 88(7) the
deemed planning application. It is a fact that in each of these appeals the
appellant had submitted as the first ground of his appeal against the
enforcement notice the assertion that planning permission ought to have been
granted for the development to which the notice relates. Of course, as I have
found, he had not given any facts which would show how that ground of appeal
was put forward and upon what facts it was based.
I cannot
accept that this is a valid ground of appeal in this court. The requirement, as
I understand it under subsection (7), must be considered to be subsumed in the
appeal against the enforcement notice under the provisions of subsection (1) of
section 88. Therefore, the main ground of appeal in this case is that the
minister should not have dismissed the appeal because the facts were not
provided.
I have already
indicated that I do not accept Mr Blake’s submission that the facts were not
required to be stated in this case.
It is relevant
to note that the minister indicated in a letter to the appellant Moorchat Ltd
that he was considering following the procedure which was suggested as a likely
result of a failure to provide facts by Roskill LJ in the case of Howard
v Secretary of State for the Environment [1975] 1 QB 235. The relevant
passage of Roskill LJ’s judgment is at p 245.
I should say
that the facts of that case are different from the facts which the court is
considering in relation to these appeals. The issue was the validity of a
notice of appeal and whether the minister could properly accept the notice of
appeal as being a valid notice although the statement of facts had not been
submitted in time due to an unfortunate error made by solicitors. It had, in
fact, been submitted out of time so that the notice was not complete. The
question being considered there was the validity of the notice of appeal and
not the precise situation which this court is considering now.
However, in
the course of his judgment Roskill LJ went on to deal with the position which
would, or might, arise if the statement of facts was not submitted as required
in future. He dealt with the point raised in that appeal and went on to say (at
letter C):
It was said
by Mr Silkin at one point in his argument that if we accept Mr Goodfellow’s
submission, there would be no way of forcing intending appellants to comply
with the statute if they refused to indicate the grounds or the facts on which
they relied. In my judgment that is not so. If intending appellants seek to
take that line in these cases, they will be in peril of having their appeals
dismissed. There is a lot of difference between a failure to comply with
statutory provisions not resulting in the notice of appeal being a nullity and
the failure to comply being of no effect when it comes to consider the merits
of the intended appeal. Where an intending appellant deliberately flouts the
intention of Parliament and does not after one or more requests indicate his
grounds or the facts on which he relies, he will be in danger of having his
appeal brought on immediately by the minister and summarily dismissed; and he
will have only himself to blame if and when that happens. The minister is and
remains master of his own procedure.
It was
submitted that Roskill LJ went too far in that passage and beyond anything
which was necessary for the determination of the point at issue in that
particular appeal.
Mr Blake
referred to Lord Denning’s judgment (at p 242 H):
All things
considered, it seems to me that the section, in so far as the ‘grounds’ and
‘facts’ are concerned, must be construed as directory only: that is, as
desiring information to be given about them. It is not to be supposed that an
appeal should fail altogether simply because the grounds are not indicated, or
the facts stated. Even if it is wanting in not giving them, it is not fatal.
The defects can be remedied later, either before or at the hearing of the
appeal, so long as an opportunity is afforded of dealing with them.
He then went
on to say:
I hold,
therefore, that an appeal is good so long as it is made in writing and within
the specified time. The grounds of appeal and the facts can be stated later so
long as a fair opportunity (by adjournment or otherwise) is given of dealing
with them. I hold that the letter of November 6 1970 was a good appeal. I would
allow this appeal, accordingly.
In that case,
as I have already observed, the Court of Appeal was considering the validity of
the notice of appeal. The reference to the request for the facts upon which the
appeal is based is there considered as a matter which may not be fatal to the
actual appeal itself but can be remedied by an opportunity being given to
provide it subsequently.
In this case,
of course, there is no question in the agreed history of both these appeals
that ample opportunity was given to the appellants to provide the facts. In the
case of Moorchat, on the form of the notice of appeal itself there appears the
passage at the bottom of the first page: ‘My statement of facts, in support of
each of my grounds of appeal, as indicated above, is given overleaf in item 7.
Failure to do so may result in the dismissal of the appeal.’ During the course of the correspondence the
minister warned both the appellants of the likely result of their continued
failure to supply facts.
I am quite
satisfied in this case that having regard to the provisions of section 88(2)
both of these appellants were under a duty to state the facts upon which their
appeals were based. I am quite satisfied that in neither case did they do so
despite a number of reminders. It was not a sufficient compliance with section
88(2) to state merely ‘this is a question of law’. It is quite plain that facts
were required, and properly required, by the minister, and that they were not
provided.
I adopt that
part of the judgment of Roskill LJ (at p 245) in Howard v The
Secretary of State for the Environment and I also adopt his dictum that the
minister is and remains master of his own procedure; that is to say, it is for
the minister to consider how he will deal with the appeal in the event of
non-compliance with the requirements. Indeed, that is a duty which is placed
upon him by the statute itself, so it seems to me. I think he was within his
powers in taking the action which he did and, as Roskill LJ says in terms, in
the event each of these appellants has only himself to blame for the result
which occurred.
I do not
consider it is necessary to go on to consider the interesting point raised by
Mr Brown about the true nature of the regulations which have now been made
under the Local Government and Planning (Amendment) Act 1981. Suffice it to say
that since the beginning of this year, January 11 1982, regulations entitled
the Town and Country Planning Enforcement Notices and Appeal Regulations 1981
have been brought into force. These regulations are made under the Local
Government and Planning (Amendment) Act 1981 and they provide specifically, by
paragraph 5 of the regulations, that a person who gives notice to the Secretary
of State under section 88 of the 1971 Act appealing against an enforcement
notice, who does not send with it a statement in writing specifying the grounds
on which he is appealing against the notice and stating briefly the facts on
which he proposes to rely in support of each of his grounds, shall deliver such
a statement to the Secretary of State not later than 28 days from the date on
which the Secretary of State sends him a notice so requiring.
The position may
have been clarified as a result of the bringing into force of these regulations
but, as I have already indicated, I am quite satisfied that section 88(2) of
the 1971 Act, as it was before amendment, did in effect make provision for the
statement of facts, although it did not provide for any specific time-limit.
For the
reasons which I have given both these appeals will be dismissed.
The appeals
were dismissed with costs.