R (on the application of Hildreth’s China and Glass Ltd) v First Secretary of State and another

Appellant being granted planning permission to use land in green belt for agricultural and horticultural purposes — Appellant using additional land for sale of goods in breach of planning control — Enforcement notice to discontinue use referring to entire area — Whether terms of the enforcement notice impinging upon appellant’s existing rights In 1993, the appellant was granted planning permission to use green-belt land in an area of outstanding natural beauty for agricultural and horticultural purposes, that is, as a garden centre. The planning permission was subject to a condition that only the land that was marked on the plan at the time of the change of use could be used for the sale of goods. The appellant subsequently used two existing areas of hardstanding, which lay on the periphery of the site and were enclosed by a lawfully erected fence, for the storage and display of china and glass. The second respondent local council issued the appellant with an enforcement notice alleging breach of planning control. The appellant appealed to the inspector, who dismissed the appeal. The appellant challenged that decision, under section 289 of the Town and Country Planning Act 1990, on the ground, inter alia, that the enforcement notice related to the entire land area, whereas the breach occurred only upon two small parcels of the total area. Held: The appeal was dismissed. In general terms, it was clear that the inspector’s decision had taken into account all the arguments advanced by the appellant, and that he had satisfied himself that the use of the land constituted an encroachment upon the green belt that could not be justified by any special circumstances. Even if the wording of the enforcement notice was ambiguous, it did not encroach upon the appellant’s existing legal rights to use the land for horticultural purposes: see Duguid v Secretary of State for the Environment, Transport and the Regions [2000] 4 PLR 107, in which it was held that where a literal reading of an enforcement notice suggested erroneous facts, it could not restrict lawful rights. Such a notice would affect only the unlawful use. It was not necessary to “spell out” the protection of the existing use rights within the enforcement notice. In the instant case, it was not necessary to amend the notice because the appellant could rely upon the user right conferred by statute and agricultural use did not require planning permission. Joanna Clayton (instructed by Parrott & Coales, of Aylesbury) appeared for the appellant; James Strachan (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondents did not appear and were not represented. Vivienne Lane, barrister