Enforcement notice — Notice requiring discontinuance of use of land for parking commercial vehicles — Prosecution for breach — Defendant intending to call evidence that parking ancillary to lawful permitted use — Whether precluded from doing so by section 243(1) of the Town and Country Planning Act 1971 — Effect of Mansi doctrine
The appellant
was charged on indictment with using land at Shorne Filling Station, Gravesend
Road, Shorne, for the parking of commercial vehicles in contravention of an
enforcement notice, contrary to section 89(5) of the Town and Country Planning
Act 1971. The enforcement notice, served in March 1987, alleged a material
change of use ‘from a use of the land as a petrol filling station to a mixed
use consisting of the use of the land as a petrol filling station, use of the land
for the parking of commercial vehicles and use of the land for the storage of
scrap metal and scrap vehicle parts’. The requirements of the notice were, inter
alia, to ‘discontinue the use of the land for the parking of commercial
vehicles’ and to remove from the land all commercial vehicles. The appellant
lodged an appeal against the notice but later withdrew it. A letter at the time
from his solicitors to the planning authority explained that he was seeking to
prevent the parking of commercial vehicles ‘save those we consider are
ancillary to the site and its use as a petrol filling station’.
The appellant
proposed to lead evidence at his trial that the parking alleged in the
indictment was such an ancillary use and therefore a permitted use and not a breach
of planning control, nor a breach of the enforcement notice. The prosecution
contended that the enforcement notice required the appellant to remove all
commercial vehicles from the land and that he was precluded from leading such
evidence by section 243(1) of the 1971 Act (now section 285(1) of the Town and
Country Planning Act 1990) since it would, in effect, be challenging the
validity of the notice. In a ruling given before arraignment, the judge
accepted the Crown’s submissions. As a result of the ruling, and on advice, the
appellant, when arraigned, pleaded guilty. He appealed against his conviction
on a certificate of the judge.
conviction quashed and a retrial ordered.
1. The parties
had not agreed the relevant facts and judge’s ruling was based on a fundamental
misunderstanding of the appellant’s position. He was not conceding that the use
of the land was the same throughout the relevant period. He was admitting that
parking in the past had taken place in breach of planning control, but intended
to assert that such unlawful use had ceased and that the parking observed
during the period
the enforcement notice was served, he could not have appealed against it on the
ground that the parking of the vehicles was at that time an ancillary use to
the petrol filling station use: see p 30A-E.
2. A use
ancillary to a primary permitted use was permitted without the need for any
separate planning permission. No enforcement notice could take away such
legally permitted rights (the Mansi doctrine), and the authorities
established that an enforcement notice would be construed so as to retain any
such rights. Accordingly, the breach of planning control described in the
enforcement notice must be taken as meaning that the parking of commercial
vehicles complained of was such parking as could not properly be described as
an ancillary use. The fact that the steps required to be taken included the
removal of all commercial vehicles did not justify a conclusion that the
enforcement notice was intended to prevent use for parking ancillary to the
primary permitted use. Taken literally, that would be a step exceeding what was
necessary to remedy the alleged breach of planning control, and if that were
its proper meaning the withdrawal of his enforcement notice appeal meant that
the appellant would be precluded from raising such a defence to any prosecution
under section 89(1). But that would not prevent the appellant from arguing, as
he sought to do, that no offence had been committed under section 89(5),
because any use for the parking of vehicles was merely ancillary to the primary
permitted use and therefore not a use which he had been required to
discontinue: see pp 30G-31E.
Per curiam: Although the intention of section 243 was to ensure that all
planning issues were dealt with through the planning appeal machinery,
application of the Mansi principle would inevitably result in
magistrates and juries having to determine whether, in any given case, a use
was indeed a primary use or an ancillary use: see pp 31H-32A.
to in the judgment
Cord v Secretary of State for the Environment [1981] JPL 40
Monomart
(Warehouses) v Secretary of State for the
Environment (1977) 34 P&CR 305; 242 EG 881, [1977] 1 EGLR 138; [1977]
JPL 524
North Sea
Land Equipment v Secretary of State for the
Environment (1982) 263 EG 66, [1982] 2 EGLR 778; [1982] JPL 384
R v Vickers [1975] 1 WLR 811; [1975] 2 All ER 945; 61 Cr App R
48, CA
Swinbank v Secretary of State for the Environment (1987) 55 P&CR
371; [1987] JPL 781
Trio
Thames Ltd v Secretary of State for the
Environment [1984] JPL 183
Appeal against
conviction
This was an
appeal by Gordon Harfield against conviction on December 11 1989 at Maidstone
Crown Court (Judge Coombe) following a plea of guilty to an indictment alleging
an offence of using land in contravention of an enforcement notice contrary to
section 89(5) of the Town and Country Planning Act 1971. He was fined £ 2,000
and ordered to pay £ 6,000 prosecution costs.
Harrison QC and David Hughes (instructed by Bakers Green Brett, of Strood,
Kent) appeared for the appellant, Gordon Harfield.
Tolson (instructed by the solicitor to Gravesham Borough Council) appeared for
the Crown.
following judgment of the court was delivered.
LATHAM J: On December 11 1989 in the Crown Court at Maidstone, the appellant,
after an adverse ruling by the judge on submissions by his counsel, pleased
guilty to using land in contravention of an enforcement notice, contrary to
section 89(5) of the Town and Country Planning Act 1971.
The
particulars of the offence, as amended, allege that the appellant:
. . . between
the 25th day of April and the 2nd day of May 1988 did use land at the Shorne
Filling Station, Gravesend Road, Shorne for the parking of commercial vehicles
in contravention of an enforcement notice under section 87 of the [Town and
Country Planning Act 1971]; such notice having been served upon the owner or
occupier of the land on the 13th day of March 1987 by the Gravesham Borough
Council, being the local planning authority for the purpose of the
aforementioned Act, and having required the use of the land for the parking of
commercial vehicles to be discontinued.
The appellant
was fined £ 2,000 and ordered to pay £ 6,000 prosecution costs. However, the
judge certified that the conviction was fit for appeal and ordered that the
fine and costs were not to be enforced pending the outcome of any appeal. The
question of law raised by the case was certified in the following form:
Whether, on
an indictment alleging the use of land in contravention of an enforcement
notice contrary to section 89(5) of the Town and Country Planning Act 1971, a
defendant is prevented, by the provisions of section 243 of the aforesaid Act,
from adducing evidence that the alleged unlawful use was not in contravention
of the enforcement notice by reason of that use being ancillary to the
permitted use of the land.
As will become
apparent later in this judgment, we do not consider that this question properly
identifies the issue of law in fact raised by the facts of the case or the
arguments before the judge; it reflects the fact that there may have been some
misunderstanding as to what the real issue was.
It may be
helpful to set out first the relevant provisions of the Town and Country
Planning Act 1971. By section 87 of the Act, it is provided as follows:
87.— (1) Where it appears to the
local planning authority that there has been a breach of planning control after
the end of 1963, then, subject to the following provisions of this section, the
authority, if they consider it expedient to do so having regard to the
provisions of the development plan and to any other material considerations,
may issue a notice requiring the breach to be remedied and serve copies of the
notice in accordance with subsection (5) of this section.
(2) A notice under this section is referred to in
this Act as an ‘enforcement notice’.
(3) There is a breach of planning control —
(a) if development has been carried out,
whether before or after the commencement of this Act, without the grant of the
planning permission required in that behalf in accordance with Part III of the
Act of 1962 or Part III of this Act; . . .
(6) An enforcement notice shall specify the
matters alleged to constitute a breach of planning control.
(7) An enforcement notice shall also specify —
(a) any steps which are required by the authority
to be taken in order to remedy the breach;
(b) any such steps as are referred to in
subsection (10) of this section and are required by the authority to be taken.
(8) An enforcement notice shall specify the
period within which any such step as is mentioned in subsection (7) of this
section is to be taken and may specify different periods for the taking of
different steps.
(9) In this section ‘steps to be taken in order
to remedy the breach’ means (according to the particular circumstances of the
breach) steps for the purpose —
(a) of restoring the land to its condition
before the development took place; . . .
including —
. . .
(ii) the
discontinuance of any use of land; . . .
(10) The steps mentioned in subsection (7)(b) of
this section are steps for the purpose —
. . .
(b) of removing or alleviating any injury to
amenity which has been caused by the development.
Section 88 of
the Act provides as follows:
88.– (1) A person having an interest in the land to
which an enforcement notice relates may, at any time before the date specified
in the notice as the date on which it is to take effect, appeal to the
Secretary of State against the notice, whether or not a copy of it has been
served on him.
(2) An appeal may be brought on any of the
following grounds —
. . .
(b) that the matters alleged in the notice do
not constitute a breach of planning control;
(c) that the breach of planning control
alleged in the notice has not taken place; . . .
(g) that the steps required by the notice to be
taken exceed what is necessary to remedy any breach of planning control or to
achieve a purpose specified in section 87(10) of this Act . . .
Section 89 of
the Act provides as follows:
89.– (1) Subject to the
provisions of this section, where a copy of an enforcement notice has been
served on the person who, at the time when the copy was served on him, was the
owner of the land to which the notice relates, then, if any steps required by
the notice to be taken (other than the discontinuance of a use of land) have
not been taken within the period
conviction to a fine not exceeding [whatever the relevant figure is at the
time] or on conviction on indictment to a fine.
. . .
(5) Where, by virtue of an enforcement notice, a
use of land is required to be discontinued, or any conditions or limitations
are required to be complied with in respect of a use of land or in respect of
the carrying out of operations thereon, then if any person uses the land or
causes or permits it to be used, or carries out those operations or causes or
permits them to be carried out, in contravention of the notice, he shall be
guilty of an offence, and shall be liable on summary conviction to a fine not
exceeding [the appropriate sum at the relevant time], or on conviction on
indictment to a fine; . . .
Section 243 of
the Act provides as follows:
243.– (1) Subject to the
provisions of this section —
(a) the validity of an enforcement notice shall
not, except by way of appeal under Part V of this Act, be questioned in any
proceedings whatsoever on any of the grounds on which such an appeal may be
brought; . . .
For the
purposes of the hearing at the Crown Court, the facts were taken to be those
which had been deposed to at an old-style committal by Mr Buttle, the
enforcement officer for Gravesham Borough Council, which is the relevant local
planning authority. On May 24 1956, planning permission was granted for use of
the site as a petrol service station. This permission was not subject to any
relevant terms or conditions. Mr Buttle discovered that by 1985 there was
substantial activity on the site which did not seem to him to be consistent
with that planning permission. Significant numbers of commercial vehicles, in
particular tankers, were on the site for long periods of time, and large
quantities of scrap metal were laying around. He stated that, so far as
commercial vehicles were concerned, there appeared to him to be never less than
five such vehicles on the site at any one time.
Having come to
the conclusion that there was, prima facie, a breach of planning
control, he so advised the council, which issued an enforcement notice dated March
11 1987, alleging a material change of use. The breach of planning control was
described in the following terms:
Change of use
from a use of the land as a petrol filling station to a mixed use consisting of
the use of the land as a petrol filling station, use of the land for the
parking of commercial vehicles and use of the land for the storage of scrap
metal and scrap vehicle parts.
The steps
which the council required the appellant to take were as follows:
(i) Discontinue the use of the land for the parking
of commercial vehicles.
(ii)
Discontinue the use of the land for the storage of scrap metal and scrap
vehicle parts.
(iii) Remove
from the land all commercial vehicles, scrap metal and scrap vehicle parts.
The appellant
appealed under section 88 of the Act against the terms of the enforcement
notice. We have not been told the precise basis of the appeal, but assume that
it would have been a compendious appeal, arguing, inter alia, that the
matters alleged did not constitute a breach of planning control, and that the
steps required to be taken exceeded what were necessary to remedy any breach.
Whatever may have been the grounds of appeal, the appeal was withdrawn on
January 26 1988 and as a result, by virtue of the provisions of section 243,
the appellant was and remains precluded from challenging the validity of the
enforcement notice on the basis of these or any other grounds which would have
been available under section 88.
This
withdrawal of the appeal followed a letter dated January 13 1988 from solicitors
acting for the appellant to Gravesham Borough Council in which, albeit at that
time on a without prejudice basis, the appellant was admitting that there were
indeed lorries and vehicles on the site which constituted a breach of planning
control because they were ‘not directly related to the operation of the site’
for the purposes of a petrol filling station. It was said that the appellant
would be taking steps to remove such vehicles and to take steps to prevent the
site from being used for overnight parking of lorries by others over whom, so
he said, he had no direct control. By letter dated January 25 1988, the
position was put openly in the following terms:
With regard
to the enforcement notice dated 11th March 1987 we confirm that we are, in view
of our recent discussions, withdrawing our appeal of that enforcement notice
because it seems to be agreed between ourselves and yourselves that the scrap
metal has been removed. With regard to the parking of vehicles, we are
instructed that our client is seeking to prevent the parking of commercial
vehicles on the site, save those we consider are ancillary to the site and its
use as a petrol filling station.
Whatever may
have been stated in those letters, Mr Buttle, in his deposition, said that the
appellant had at all times, that is in conversations prior to January 1988,
asserted that such parking as had taken place was merely ancillary to his
petrol filling station. In relation to what happened after January 1988, Mr
Buttle said that far from there having been any decrease in the parking of
commercial vehicles, it appeared to him that certainly from April 1985 to April
1988 there had been an increase in the parking of commercial vehicles. It was
against that background that he advised the council that the appellant had
failed to comply with the enforcement notice, and the criminal proceedings were
commenced in the terms we have already mentioned.
When the
matter came for trial, prosecuting counsel made it clear that he intended to
argue that the appellant was required by the enforcement notice to remove all
commercial vehicles from the site, that the use of the site for the parking of
any commercial vehicles was prohibited, and that if that were the proper
construction of the enforcement notice the appellant would not be entitled to
lead any evidence to justify the parking of commercial vehicles on the site on
the basis that this was
validity of the enforcement notice.
The parties
asked the judge to give a ruling as to whether or not the prosecution
contention was correct. If it was, the appellant had no defence to the charge.
The matter was dealt with before arraignment of the appellant. Counsel for the
appellant accepted that ‘the circumstances and facts and events pre-1987 did
justify the service and enforcement of the notice, and we withdrew our appeal
against it’. In other words, he was stating that, on the facts, pre-1987, at
the time of the service of the enforcement notice, there was no basis on which
the appellant could have argued on appeal that the matters alleged in the
enforcement notice did not constitute a breach of planning control. His
argument was that the appellant was therefore not precluded from leading evidence
to the effect that any use by way of parking of commercial vehicles after the
service of the enforcement notice was an ancillary use, and was therefore a
permitted use and not in breach of planning control, nor a breach of the
enforcement notice in so far as it related to the breach of planning control.
The judge, in
his ruling, agreed with the prosecution. Having stated that the appellant
appealed against the validity of the notice but had withdrawn his appeal, he
went on to say:
The notice
therefore remained valid, and it required the defendant firstly to discontinue
the use of the land for the parking of commercial vehicles, and thirdly to
remove from the land all commercial vehicles.
The defendant
accepts that that was not done; he accepts that commercial vehicles remained on
the site, but he contends that he was entitled to keep them there because such
use was ancillary to the planning permission which he held for use of the land
as a petrol filling station . . .
Section 243
of the Town and Country Planning Act 1971 makes it quite clear that the
validity of an enforcement notice shall not, except by way of appeal, be
questioned in any proceedings whatsoever on any of the grounds on which such an
appeal might have been brought, and the question as to whether or not the
parking of vehicles was an ancillary use to the use as a petrol filling station
was clearly a matter which could have been raised upon such an appeal.
Finally, the
judge stated his conclusions as follows:
It matters
not therefore, in my judgment, whether the parking was or was not an ancillary
use to use of the site as a petrol filling station. If there was the parking of
commercial vehicles on the land, then that was a contravention of the notice.
The reason for such parking is, in my judgment, irrelevant so far as concerns
proceedings under that notice.
The appellant
was then arraigned, and on advice, as a result of the ruling, pleaded guilty.
In R v Vickers (1975) 61 Cr App R 48, this court disapproved of
the practice of ruling on a preliminary point before arraignment. It held that
this did not preclude the Court of Appeal as a matter of jurisdiction from
entertaining an appeal against conviction, but stated that it would be better
for arraignment to take place before any ruling on a submission such as the one
in the present case is made.
arise if attempts are made to obtain a judge’s ruling on what are considered,
perhaps optimistically, to be agreed facts. This case illustrates some of those
dangers.
In argument
before us it became apparent that prosecuting counsel, and probably the judge,
had taken the view that the deposition of Mr Buttle established that the use of
the land had remained the same for planning purposes throughout the period from
1985 to 1988, that the appellant was seeking at trial to justify that parking
on a basis which was available as a ground of appeal to the enforcement notice,
and that the appeal having been withdrawn, he was precluded from doing so. That
appears to be the basis upon which the judge made his ruling. It can, however,
be seen from the history of the matter which we have set out above, and from
what was said by counsel for the appellant in argument before the ruling, that
the appellant was not conceding that the use was the same throughout the
relevant period. In the correspondence he was admitting that parking had in the
past taken place in breach of planning control, but asserting that it would
thereafter only be ancillary to the use of the land as a petrol filling
station.
Counsel at the
trial, was, in effect, saying that he intended to call evidence that the
unlawful use had ceased, and that the parking which had been observed by Mr
Buttle over the period charged in the indictment was lawful as being ancillary
to the lawful use. It follows that the appellant could not have appealed
against the enforcement notice on the grounds that the parking of the vehicles
was at that time an ancillary use to the use as a petrol filling station. The
parties had not therefore agreed the relevant facts; and the matter was not
argued before the judge in a way which could have alerted him to the importance
of the disputed facts. The ruling was therefore based upon a fundamental
misunderstanding of the appellant’s position, and for that reason alone this
appeal must be allowed.
In his ruling,
the judge was also influenced, as it appears to us, by the fact that the
enforcement notice on its face required the appellant to remove from the land
all commercial vehicles and quite clearly, and on his own admission, he had not
done so. The charge, however, was not brought under section 89(1) of the Act,
that is a charge of failing to take any steps required by the notice, but under
section 89(5) of the Act, namely that the appellant was making a use of the
land which he had been required to discontinue. It is accepted by counsel for
the respondent that any use which is ancillary to a permitted primary use is
itself permitted without the need for any separate planning permission: see Trio
Thames Ltd v Secretary of State for the Environment [1984] JPL 183.
No enforcement notice can take away these legally permitted rights: this has
been referred to before us as the Mansi1 doctrine. More
important, the authorities clearly establish the proposition that any
enforcement notice will be construed so as to retain any such rights; and
although in some appeals against enforcement notices which appear to have taken
away such rights, inspectors, or the Secretary of State, have inserted a saving
clause in respect of ancillary uses, the courts have made it clear that this is
not strictly necessary. The rights are always retained. We have been referred
to a number of authorities which establish these propositions: Monomart
(Warehouses) v Secretary of State for the Environment (1977) 34
P&CR 305; Cord v Secretary of State for the Environment
[1981] JPL 40; North Sea Land Equipment v Secretary of State for the
Environment [1982] JPL 384; and Swinbank v Secretary of State for
the Environment [1987] JPL 781.
1Editor’s note: see Mansi v Elstree Rural District Council
(1964) 16 P&CR 154.
It follows
that, certainly so far as the enforcement notice described the breach of
planning control, it must be taken as meaning that the parking of commercial
vehicles complained of is such parking as cannot properly be described as an
ancillary use. The fact that the steps required to be taken include the removal
of all commercial vehicles cannot, in our view, justify the conclusion that the
enforcement notice was intended to prevent use for parking which was as
ancillary to the primary permitted use. If that requirement is to be taken in
its literal sense, then it would be a step which exceeded what was necessary to
remedy the alleged breach of planning control. If that were its proper meaning,
the fact that the appeal had been withdrawn would have the result that the
appellant would be precluded from raising the defence that it exceeded what was
necessary to remedy any breach, in any prosecution under section 89(1) of the
Act. But that would not prevent the appellant from arguing, as he sought to in
these proceedings, that no offence had been committed under section 89(5) of
the Act because any use being made for the parking of vehicles was merely
ancillary to the primary permitted use, and therefore not a use which he had
been required to discontinue. Counsel for the appellant argued that, in any
event, the authorities to which we have referred establish that the enforcement
notice only required the appellant to remove from the site those commercial
vehicles whose presence could [not] be said to be ancillary to the use of the
land as a petrol filling station. The enforcement notice, it is said, is to be
read as a whole, in the light of the general presumption that it does not take
away any existing permitted use, and, if so read, requires the appellant to
remove commercial vehicles ‘except as may be incidental to the use of the
premises as a petrol filling station’. These are the words, suitably amended,
which were inserted in the enforcement notice in the Monomart case in
order to protect an ancillary use, but were held by the Divisional Court to
have been otiose. There is force in this argument. It is, however, strictly
unnecessary for us to form a concluded view because the only charge against
this appellant was under section 89(5) of the Act.
As we have
already said, the matter was not argued before the judge in such a way as to
alert him to the relevance of these issues. We sympathise with the approach he
adopted. Section 243 of the Act was clearly intended to try to ensure that all
planning issues were dealt with within the planning appeal machinery, so that
magistrates and juries were not troubled by concepts such as primary and
ancillary use, which may be obvious to planners but not so obvious to others.
However, the line of authority to which we have referred above shows that for a
long time a consistent principle has been adopted in these cases which will
inevitably result in questions arising before magistrates and juries as to
whether in any given case a use is indeed a primary use or an ancillary use.
Having allowed
the appeal and set aside the conviction, we have considered whether or not in
the circumstances it would be appropriate to order a retrial. In all the
circumstances of the case, we consider that the right course is to order a
retrial.
Finally, we
wish to express our concern about the delay in this case. It is almost three
years since this appellant was convicted. We have caused enquiries to be made
to determine whether there was any particular reason for that delay. We were
told that dates were first offered to the parties in January of this year. That
none the less means that there would have been a two-year delay in the
resolution of this appeal, even had it come into the lists at the first
opportunity. In our view, this period of delay is unacceptable, even in cases
such as this in which the liberty of the subject is not directly at stake.
Appeal
allowed and conviction quashed. Retrial ordered. Order for payment of
appellant’s costs of appeal from central funds.
