Judicial review — Stop notice — Sunday market on land previously used as nursery — Some previous sales from nursery — Whether activity began more than twelve months previously — Whether decision to serve stop notice ultra vires
In September 1988, the applicant company, who trades as “Wendy Fair Markets”, was granted a licence to use certain land at a site known as Lea Valley Nursery, Waltham Abbey, Essex. The purpose of the licence was to run a Sunday market; this use commenced on September 25 1988 and has continued since that time. In November 1988, the respondent local planning authority made an article 4 direction under the Town and Country Planning General Development Order 1977 withdrawing permitted development rights for the temporary use of the land.
In March 1989 the respondents issued an enforcement notice alleging a breach of planning control by the making of a material change of use of the land for the purpose of a market after the coming into force of the article 4 direction; the applicant appealed against that decision. On April 10 1989 the respondents served a stop notice on the applicant with effect from April 16 to prevent the operation of the Sunday market thereafter. The applicant sought judicial review of the decision of the respondents to issue and to serve the enforcement and stop notices. The company contended, inter alia, that the guidance in Circular 4/87 had not been followed and that the stop notice could not lawfully prohibit an activity that began more than 12 months earlier. The site having been used as a retail nursery on which a Sunday market had operated from about August 1985 between March and December in each year.
Held The application for judicial review was dismissed.
The material provisions on stop notices are in section 90 of the Town and Country Planning Act 1971. Subsection (2) provides: “… where the period during which an activity has been carried out on land (whether continuously or otherwise) began more than twelve months earlier, a stop notice shall not prohibit the carrying out of that activity on that land …”.
The evidence of the use before the respondents was of a Sunday market use that had commenced in September 1988; it was that activity against which the stop notice was directed. Although the applicant’s and the respondents’ affidavits were in conflict on the main issue of the “activity” that had or had not begun more than 12 months earlier, and there was no statutory appeal as such against a stop notice, there had been no error on the part of the respondents in the procedure they followed.
R v Jenner
[1983] 2 All ER 46, CA, considered.
Richard Gordon (instructed by Isadore Goldman & Son) appeared for the applicants; and Anthony Scrivener QC and David Lamming (instructed by the solicitor to Epping Forest District Council) appeared for the respondents.
