Town and country planning — Enforcement notices — Appeal to Secretary of State — Enforcement notices of no effect pending final determination of appeal — Appeal to High Court — Appeals remitted to Secretary of State for rehearing — Further decision of Secretary of State — Further appeal to High Court — Appeal therefrom to Court of Appeal — Petition to appeal therefrom to House of Lords dismissed — Informations laid alleging breach of enforcement notice — Whether enforcement notices having effect pending petition to House of Lords — Meaning of final determination of appeal
On April 30
1973 planning permission was granted for the use of land at Springfields Farm,
Wivelsfield, Sussex, for an egg-packing business; the land was so used for a
short period. In due course the land was used without any further planning
permission by a number of different businesses in the motor trade. Enforcement
notices were served on October 11 1979 requiring the discontinuance of the use
of the land and were expressed to come into effect 28 days after October 20
1979. The persons served with the enforcement notices appealed under section 88
of the Town and Country Planning Act 1971, and the Secretary of State for the
Environment dismissed the appeals and upheld the enforcement notices by his
decision letter of January 14 1982. The parties appealed against that decision
to the High Court, and at the hearing on January 21 1983 the Secretary of State
did not seek to uphold his decision and by consent the appeal succeeded and the
original appeals under section 88 were remitted to the Secretary of State for
rehearing. Following the submission of written representations, the Secretary
of State again upheld the enforcement notices and dismissed the appeals by his
decision letter of February 28 1985. That decision, too, was appealed into the
High Court and on July 10 1985 that further appeal was dismissed. On July 31
1985 the disappointed appellants obtained leave to appeal to the Court of
Appeal and notice of appeal was in fact given on August 6 of that year. On the
same day, criminal proceedings, alleging use of the land for purposes contrary
to the enforcement notices between March 28 1985 (30 days after the Secretary
of State’s second decision letter) and August 6 1985, were commenced. The Court
of Appeal dismissed the appeal on November 7 1985 and refused the appellants
leave to go to the House of Lords. The House of Lords dismissed a petition for
leave to appeal on January 30 1986. The appellants did not dispute that the use
contrary to the enforcement notices took place, but relied in the criminal
proceedings on section 88(10) of the 1971 Act, which provides: ‘where an appeal
is brought under this section, the enforcement notice shall be of no effect
pending the final determination or the withdrawal of the appeal’. It was their
submission that the appeal had not been finally determined until the House of
Lords had dismissed their petition on January 30 1986, and they appealed
against their convictions accordingly.
Held The appeals must be allowed and the
convictions quashed. There was agreement with the Court of Appeal in London
Parachuting Ltd v Secretary of State for the Environment (1985) 52
P&CR 376 that section 88(10) of the Town and Country Planning Act 1971, in
suspending the effect of an enforcement notice, is limited in its effect to
appeals under section 88 only. However, Dover District Council v McKeen
(1985) 50 P&CR 250 and London Parachuting Ltd v Secretary of
State for the Environment could not be followed to the extent
Act is an entirely separate right of appeal from section 88, see p 67D. An
appeal under section 88 is not an entirely self-contained procedure, and in the
instant case it could not be said that the Secretary of State had finally determined
the appeal to him so long as there was any possibility of his decision on the
enforcement notices being remitted to him for rehearing and determination. Thus
the section 246 appeal cannot be considered a separate right of appeal; it can
only be seen as a potential (but not necessarily final) stage in the section 88
appeal, see p 67F. The provision in section 88B(3), that where the Secretary of
State in deciding an enforcement notice appeal grants planning permission or
makes a determination of the lawful user, his decision in either case ‘shall be
final’, does not neutralise the word ‘final’ in section 88(10), see p 68B. This
is because any grant of planning permission, or a determination, by the
Secretary of State in the circumstances of section 88B(1)(a) or (c)
is not ‘final’ but may be quashed under section 245 or, more problematically,
may be remitted after a section 246 appeal. The provision is not dealing with
final determination, which might have neutralised the use of the word ‘final’
in section 88(10), but with limiting recourse to the courts, see p 68C.
to in the judgments
Dover
District Council v McKeen (1985) 50 P&CR
250; [1985] 2 EGLR 191; 276 EG 493; [1985] JPL 627, DC.
Garland v Westminster City London Borough Council (1970) 68 LGR 587;
sub nom Garland v Westminster London Borough Council 21 P&CR
555, DC.
London
Parachuting Ltd v Secretary of State for the
Environment (1985) 52 P&CR 376; [1986] JPL 279, CA.
Pyx
Granite Co Ltd v Ministry of Housing and Local
Government [1960] AC 260; [1959] 3 WLR 346; [1959] 3 All ER 1; (1959) 58
LGR I; 10 P&CR 319, HL.
Appeal against
conviction
These were
appeals against convictions at the Lewes Crown Court (Judge Lovegrove QC)
following pleas of guilty to indictments alleging breaches of enforcement
notices issued by Lewes District Council in October 1979.
Beaumont (instructed by the Registrar of Criminal Appeals) appeared on behalf
of the appellants.
Ashwell (instructed by the solicitor to Lewes District Council) appeared on behalf
of the Crown.
following judgment of the court was delivered at the invitation of Lord Lane
CJ.
HENRY J: This is an appeal against conviction brought by eight appellants who
were prosecuted on indictment for using land in contravention of an enforcement
notice. Initially each pleaded not guilty to that count, but changed their
pleas to guilty after the failure of two submissions made on their behalf by Mr
Beaumont who was acting for them.
First, he
submitted that by reason of section 88(10) of the Town and Country Planning Act
1971 the enforcement notices were of no effect, because there had not been a
‘final determination’ of the appeal against the making of those enforcement
notices. Second, he submitted the offence under which the charges were laid,
namely section 89(5) of the 1971 Act, was not an absolute offence as the Crown
contended, but required proof by the Crown that each defendant had knowledge of
the existence of the enforcement notices, ie the proof of mens rea.
The facts are
as follows. In March 1973 there was a planning application made in relation to
land known as Springfields Farm, Wivelsfield, in the County of Sussex. On April
30 of that year that application was granted,
vehicles used in that business.
Some time
thereafter that egg-packing business failed. On its failure, without any
further planning permission being granted, a number of different businesses in
the motor trade used the premises. The planning authority regarded such user as
being in breach of the planning laws. Accordingly, on October 11 1979 three
enforcement notices were served, two of them relating to named appellants in
this case. These notices required the discontinuance of use of the land for the
storage, repair, and paint spraying of motor vehicles. The notices were
expressed to come into effect 28 days after October 20 1979.
However,
section 88 of the 1971 Act admitted an appeal to the Secretary of State against
those enforcement notices on the grounds specified in that section, and section
88(10) provides that the enforcement notices were of no effect pending final
determination of that appeal. Those on whom those notices had been served duly
appealed, a public inquiry was convened to hear that appeal, the inspector
appointed heard it on March 25 1981 and duly reported to the Secretary of
State, and, by his decision letter of January 14 1982, the Secretary of State
dismissed the appeals and upheld the enforcement notices.
Section 246 of
the Act gives the right of appeal against any decision of the Secretary of
State to the High Court, but only on a point of law. Such an appeal was lodged,
and came before the court just over a year later, on January 21 1983. On the
hearing of this appeal the Secretary of State did not seek to uphold his
decision, and by consent the appeal succeeded on terms that the original
section 88 appeals were remitted to the Secretary of State for rehearing and
determination by him.
It was agreed
between the parties that submissions to him were to be by way of written
representations. By the time those representations had been received and
considered, a further two years had elapsed, and the Secretary of State’s
second decision letter was dated February 28 1985. By that decision letter he
once more upheld the enforcement notices and dismissed the appeals.
This decision,
too, was appealed. The appeal should have been brought within 28 days, but in
fact the originating motion was not filed until April 12 1985. The appeal (and
the necessary application to extend the time for lodging the appeal) was
finally heard before Forbes J on July 10. He gave leave to extend the time for
lodging the appeal but dismissed the appeal.
On July 31
1985 the disappointed appellants applied to him for leave to appeal to the
Court of Appeal and he duly granted such leave. Notice of appeal was in fact
given on August 6. The enforcement notices were by then approaching their sixth
birthday and all this time the offending uses of the land had continued.
On that same
day the informations, alleging use of the land for infringing purposes between
March 28 1985 (ie 30 days after the Secretary of State’s original decision
letter) and August 6 1985, were served on the appellants. They do not dispute
the offending use as alleged, but rely on section 88(10) of the Act, which
provides: ‘Where an appeal is brought under this section, the enforcement
notice shall be of no effect pending the final determination or the withdrawal
of the appeal.’ It is submitted on their
behalf that the appeal had not been finally determined because there was an
extant appeal to the Court of Appeal.
To bring
matters up to date, the Court of Appeal heard the appeal on November 7 1985,
dismissed it, and refused the appellants leave to go to the House of Lords. On
December 3 the appellants petitioned the House of Lords for such leave. On
January 30 1986 their petition for leave was dismissed by
the appeal under section 88 was ‘finally determined’. There then followed the
criminal proceedings, the course of which we have already described.
The scheme
of the Act
Part V of the
Act is headed ‘Enforcement of Control under Parts III and IV’. It covers
enforcement notices, listed building enforcement notices, tree preservation
orders and certain other controls. Section 87(1) provides that where it appears
to the local authority that there has been a breach of planning control, it may
issue an enforcement notice requiring the breach to be remedied. Such an
enforcement notice is to take effect on the date specified in it but ‘subject
to section 88 of this Act’.
Section 88
deals with appeals to the Secretary of State against enforcement notices. The
grounds upon which such an appeal can be brought are set out in subsection (2),
and the procedural requirements and sanctions for breach of them are set out in
subsections (3) to (9).
Subsection
(10) is crucial to this case, and I set it out in full:
(10) Where an
appeal is brought under this section, the enforcement notice shall be of no
effect pending the final determination or the withdrawal of the appeal.
Subsection
(11) incorporates Schedule 9, which deals with the conduct of (inter alia)
section 88 appeals by persons appointed by the Secretary of State.
Sections 88A
and 88B contain certain supplementary powers relating to section 88 appeals,
the latter dealing with situations where the Secretary of State recognises that
the user is in breach of planning controls, but wishes to legitimatise the
offending use by granting planning permission. These sections both start with
the words ‘On the determination of an appeal . . .’.
Section 89 is
the offence-creating section under which the appellants were charged in this
case. Section 90 gives the local authorities power in certain circumstances to
issue stop notices where they have served enforcement notices requiring the
breach of planning control to be remedied and [by subsection (1)(b)]
they
consider it
expedient to prevent, before the expiry of the period allowed for compliance
with the notice, the carrying out of any activity which is, or is included in,
a matter alleged by the notice to constitute the breach.
However, a
stop notice would not have been effective in this case, because [by subsection
(2)]
where the
period during which an activity has been carried out on land . . . began more
than 12 months earlier, a stop notice shall not prohibit the carrying out of
that activity on that land unless it is, or is incidental to, building,
engineering, mining or other operations or the deposit of refuse or waste
materials.
Section 243 of
the Act provides that (subject to exceptions that are not relevant to these
appeals), ‘the validity of an enforcement notice shall not, except by way of an
appeal under Part V of this Act’ — in which section 88 lies — ‘be questioned in
any proceedings whatsoever on any of the grounds on which such an appeal may be
brought’.
To summarise
the provisions to date: (i) the only avenue of appeal against an enforcement
notice is under section 88; (ii) that is an appeal to the Secretary of State,
not to the courts; (iii) it is the Secretary of State who ‘determines’ such an
appeal; (iv) at the risk of stating the obvious, if there were no appeal from
the Secretary of State, there could be only one ‘determination’ of each appeal;
(v) the only reference in the section 88 appeal provisions to ‘final
determination’ is in section 88(10); (vi) until we get to section 246 (to which
we turn next), there is no indication as to how any determination by the
Secretary of State under section 88 can ever be anything other than final.
Appeals from
the Secretary of State are dealt with under Part XII of the Act, entitled
‘Validity of Planning Instruments and Decisions and Proceedings Relating
Thereto.’ The scheme of the sections in
this Part of the Act is that sections 242 and 243 limit the right of recourse
to the courts, and sections 244, 245, 246 and 247 grant limited rights of
appeal from the Secretary of State to the courts. We have already set out the
limiting section 243.
So far as
section 88 appeals are concerned, the enabling section is section 246.
Subsection (1) provides that:
Where the
Secretary of State gives a decision in proceedings on an appeal under Part V of
this Act against — (a) an enforcement notice . . . the appellant or the
local planning authority or any other person having an interest in the land to
which the notice relates may, according as rules of court may provide, either
appeal to the High Court against the decision on a point of law or require the
Secretary of State to state and sign a case for the opinion of the High Court.
Here we are
concerned with an appeal to the High Court against the decision on a point of
law, there having been no rules made dealing with the alternative of stating a
case.
Subsection (3)
provides that:
In relation
to any proceedings in the High Court . . . brought by virtue of this section
the power to make rules of court shall include power to make rules — (a)
prescribing the powers of the High Court . . . with respect to the remitting of
the matter with the opinion or direction of the court for re-hearing and
determination by the Secretary of State; . . .
The rules in
fact made under that section are found in the Rules of the Supreme Court, Order
94, rule 12. Subrule (5) provides:
If the Court
is of opinion that the decision appealed against was erroneous in point of law,
it shall not set aside or vary that decision but shall remit the matter to the
Secretary of State with the opinion of the Court for rehearing and
determination by him.
It then
continues with subrule (6): ‘Order 55, rule 7(5) shall not apply in relation to
any such appeal.’, and examination shows that that rule deals with the powers
of the court hearing the appeal and states:
The Court may
give any judgment or decision or make any order which ought to have been given
or made by the court, tribunal or person and make such further or other order
as the case may require or may remit the matter with the opinion of the Court
for rehearing and determination by it or him.
Though the
section speaks of the Secretary of State ‘giving a decision . . . on an appeal
. . . under [section 88] against . . . an enforcement notice’, and gives the
right of appeal against that ‘decision’, the word ‘decision’ is said (by
subsection (5)) to include ‘a direction or order’, and we are satisfied that
his decision on the section 88 appeal is (or at least can become) his
‘determination’ of that appeal in the sense used in section 88.
If we are
right in this, then there were in this case two determinations by the Secretary
of State: one on January 14 1982 (the first decision letter) and one on
February 28 1985, the decision letter which it seems to us must have replaced
the first.
So much for
the scheme of the Act. The crucial point for the decision of this court is
whether, for the purposes of section 88(10), there had been a final
determination of the section 88 appeal at any point in the period March 28 to
August 6 1985 specified in the indictment, at which later date the appeal
against Forbes J’s judgment of July 10 had been lodged. For until there was
such final determination, the enforcement notices were ‘of no effect’.
As is clear
from the facts set out, on August 6 it was not certain what the result of the
appeal from Forbes J would be. Until that was known, no one could be entirely
sure whether the second decision letter of February 28 1985 would meet the same
fate as the first decision letter of January 14 1982, namely remission for
rehearing and determination.
The
authorities
The essential
structure of the sections with which we are concerned has been on the statute
book since the Caravan Sites and Control of Development Act 1960. It seems to
have been assumed in the profession, at least until 1985, that the meaning of
‘final determination’ in this and the preceding legislation was the moment when
no further challenge of the Secretary of State’s decision could be mounted
without special leave, which would either be when the time allowed for leave to
appeal had expired or that the appeal process was exhausted — as it finally was
here by the refusal of the House of Lords for the petition on January 30 1986.
If that view were right, this appeal would succeed.
This view
gained apparent support from the judgment of Bridge J (as he then was) in Garland
v Westminster City Council (1970) 21 P&CR 555, where at p 558 he
said:
As it seems
to me, without wishing to resolve any other arguments which may arise as to the
precise time at which an appeal under section 246 should be considered as
having been finally determined, this time must at the latest be the time when
an appeal, whether to the Minister or from the Minister to this Court or from
this Court to the Court of Appeal, has been dismissed and the time for
appealing further has expired without such further appeal having been
instituted.
It will be
seen that that passage is heavily qualified. The significance of those
qualifications is made manifest by the facts of that case. There there was an
appeal to the Court of Appeal against an enforcement notice. The Court of
Appeal dismissed that appeal on October 15 1968. Leave to appeal was not
sought. The infringements alleged were more than a year later, in September
1969. The informations were preferred on October 7 1969. The point made on the
appellant’s behalf was that he might yet bestir himself sufficiently to apply
for leave to appeal to the House of Lords out of time, and, miracles in
litigation never ceasing, such leave might yet be granted. Therefore, on that
basis, the appeal still had not finally been determined.
It seems to us
that that submission was so hopeless that it was not necessary for the
Divisional Court to pay too much attention to the meaning of the words ‘finally
determined’. All they had to decide was the latest date that a possible
construction of the Act would allow, and Bridge J’s judgment makes clear that
that is what they did. (We suspect that that case was an example of the way
that the provisions of section 88(10) encourage those who have a profitable but
infringing use of land to buy time by pursuing hopeless appeals, to the
detriment of respect for planning law and the state of the lists.)
The matter
next arose in the Divisional Court in the case of Dover District Council
v McKeen (1985) 50 P&CR 250. Only the Crown appeared to argue that
case, and again in that case so clear was the correct decision (which needless
to say the court reached) that too searching an examination of the meaning of
the statute was not required. The facts there were that the Secretary of State
dismissed the appeal against the enforcement notice on July 7 1983, but granted
nine months for compliance. The date for the
namely April 18 1984.
At the hearing
before the magistrates the respondents contended that, as section 246 gave them
28 days to appeal against the Secretary of State’s decision, that 28 days
should be added to the 9 months allowed for compliance, and this should be the
case whether in fact they had availed themselves of their right of appeal or
not. In fact they had not appealed within 28 days or at all. The case stated
concluded with the sentence:
In essence,
the question for the opinion of the High Court is, does the final determination
of an appeal under section 88 of the said Act occur on the date of an
Inspector’s decision or does the final determination occur 28 days later?
It seems to us
that that was not the real question at all. The real question was whether there
was any reason why the time for compliance should not run concurrently with the
time for appealing. We can see no reason why it should not have done, and if
that be right, there having been no appeal, the question of whether the date of
final determination was the decision letter or when the time for appeal expired
was, on the facts of the case, academic.
However, the
case was not put to the court on that basis. The Crown contended that the
‘final determination’ referred to the determination by the Secretary of State
in his decision letter of the section 88 appeal, and that the appeal under
section 246 was an entirely separate right of appeal afforded by a different
section, and did not of itself justify adding to the period of extension of
suspension under section 88(10). The Divisional Court (Stephen Brown and Stuart-Smith
JJ, as they then were) accepted those submissions.
The final
authority is a decision of the Court of Appeal in London Parachuting Ltd
v Secretary of State for the Environment and South Cambridgeshire District
Council (1985) 52 P&CR 376. In this case enforcement notices were
served on the parachute club in January of 1984. The club appealed and by a
decision letter of April 30 1985 the Secretary of State upheld the notices and
gave the club three months to comply.
In May 1985
the club appealed under section 246. The three-month period expired, and the
local authority applied for an injunction, and came before Scott J on August
27. The club resisted the grant of an injunction, contending that because of
section 88(10) the enforcement notice was of no effect. Scott J rejected that
submission, considering himself bound by the decision of the Divisional Court
in Dover District Council v McKeen. He accepted an undertaking
effective from 48 hours later to allow the club to appeal his decision. But
they did not appeal. Instead, on the next day they went to the Divisional Court
of the Queen’s Bench Division to stay the enforcement proceedings. Evans J
granted such a stay, the order being that the two enforcement notices were ‘to
be of no effect until October 1.’
The council
appealed to the Court of Appeal on the basis that Evans J had no jurisdiction
to make the order rendering the enforcement notices ineffective or, in the
alternative, that he was wrong to exercise his discretion in favour of making
an order. The court, in allowing the appeal, concluded that (and we quote from
the headnote):
(1) In an appropriate case the court has power at
an interlocutory stage to make an order under Order 55 rule 3(3) that an appeal
shall operate as a stay of any proceedings on an enforcement notice, or of a
decision of the Secretary of State upholding an enforcement notice. (2) There
was no power to make an order in the wide terms of the order appealed against.
The judge could have stayed proceedings based on the Secretary of State’s
decision, but he had no power to order that the enforcement notice should be of
no effect.
Obviously the
provisions of section 88(10) will have figured in the
with that matter Neill LJ (with whom Watkins LJ agreed), said this:
It is common
ground that for the purpose of deciding the present appeal this court is not
required to reach any final decision as to the precise scope of section 88(10)
of the 1971 Act. Nevertheless, some argument about the subsection was directed
to us. It may therefore be convenient for me to say that I am at present
inclined to express my respectful agreement with the decision of the Divisional
Court in the Dover District Council case, to the effect that the
subsection is limited in its effect to appeals under section 88, and has no
application to any further appeals to the High Court under section 246, which
is a section in a different part of the 1971 Act. I find additional support for
this decision in the reference to the determination of an appeal in Schedule 9
of the 1971 Act, which by section 88(11) applies to appeals under section 88.
That passage
is clearly obiter, and therefore we are not bound by it. However, it
clearly demands the greatest respect, not only because of its provenance but
also because of the eminently sensible result it reaches. The legal history of
the enforcement of enforcement notices is not a happy one. Infringing uses of
land are often profitable uses of land. Determined infringers were initially
able to exploit technicalities, and, even after certain statutory improvements
to the machinery of enforcement, were then able to use the delays inevitable in
busy courts to continue infringing planning requirements while their often
hopeless appeals were working their way to the top of the list.
Powers given
to local authorities to cause the discontinuance of infringing uses pending
appeal by the use of stop notices have not proved popular with those
authorities: first, as we have indicated, such stop notices are not available
in every case and, second, it seems that local authorities are deterred by the
potential section 177 liability to pay compensation in certain cases where the
enforcement notice is quashed, varied or withdrawn. Nor does much use seem to
have been made of the use of interlocutory injunctions to control flagrant
breaches of planning law, perhaps again because of the undertaking as to
damages. It may be that local authorities have been too timorous in this regard.
But however
this may be, the result arrived at in the London Parachuting case
whereby the enforcement notice becomes effective on the Secretary of State’s
dismissing the appeal, but the alleged infringer may come to the courts for a
stay of the criminal proceedings pending his section 246 appeal, at which stage
his appeal may be critically considered, has a great deal to recommend it as a
solution to the problem. Then if the appeal had no real prospect of success,
the stay would not be allowed, and, as the point of the appeal would then go,
both the state of the Crown Office List and enforcement of planning law would
greatly benefit.
Another route
to this same beneficial result would be to require leave from the High Court to
bring a section 246 appeal. This the Court of Appeal has recommended in
motorway planning appeals relating to an appeal under a like section, and we
agree with the recommendations that have been made*. We commend them to the
legislature. But so tempting a result does not overcome the problems of
construction.
*Burton
v Secretary of State for Transport, February 10 1988.
These problems
confronted the trial judge who was under the pressure of having the jury out
while he considered them. Yet he did not take the easy way of simply treating
himself as bound by the judgments referred, but gave a careful judgment,
dealing with the authorities and the difficulties raised before concluding:
I appreciate
the difficulties that this raises. Counsel for the prosecution, in the course
of his submission, said that ‘final determination’ must mean the first
determination when there are two of them. It, perhaps, is a somewhat difficult
concept. Quite why the word ‘final’ appears in the subsection is certainly
difficult to say, but section 88 appears to me to be a self-contained
framework, outside the conventional court system, and without the formality or
expense of legal proceedings, providing a means of deciding certain questions
relating to enforcement notices. Subsection (10) itself uses the words, ‘Where
an appeal is brought under this section’, and, in my judgment section 88
provides a self-contained procedure for appeals to the Secretary of State and
it does not extend to proceedings in the High Court under section 246; and, in
those circumstances, the application which is being made — I am bound to say —
with great care and skill by counsel is dismissed.
Conclusion
Tempted though
we are to reach the same sensible result as the trial judge, the Divisional
Court and the Court of Appeal in the two recent cases, we find that the words
of the statute do not permit us to do so.
First, we have
no trouble in agreeing that the introductory words of the section are limited,
that is to say that we are talking about the final determination of the section
88 appeal against the 1979 enforcement notices. Thus we agree with the Court of
Appeal in the London Parachuting case that it is ‘limited in its effect
to appeals under section 88’.
But where we
find that we cannot follow the previous decisions is in their findings,
variously expressed, that an appeal under section 246 is an entirely separate
right of appeal from section 88, which is an entirely self-contained procedure.
In the instant
case there was only one batch of section 88 appeals, namely those against the
1979 enforcement notices. There was clearly at least a potential final
determination of those appeals when the Secretary of State gave his first
decision in 1982. But we know that that decision was not a final determination
of the section 88 appeal, because while the High Court could not set it aside
or vary it (see Rules of the Supreme Court, Order 94 rule 12(5)), the court
could, and did, remit the decision for ‘rehearing and determination’ — ie a
rehearing of the section 88 appeal. Thus the section 246 appeal cannot be
considered a separate right of appeal, it can only be seen as a potential (but
necessarily not final) stage in the section 88 appeal.
Equally, the
section 88 appeal procedure cannot be seen as being discrete and self-contained
when a possible integral part of it is the right of appeal on a point of law
given only by section 246. Therefore, so long as the section 246 appeal process
is still alive, it seems to us that it cannot be said that the section 88
appeal has been finally determined because if the section 246 appeal succeeds,
the section 88 appeal will be remitted for rehearing and determination.
Accordingly the section 88 appeal had not been finally determined when leave to
appeal to the Court of Appeal had been given, that appeal had been lodged, and
the result of that appeal was not known.
We reach that
conclusion with reluctance, as we would much prefer it if the law was as it was
expressed to be in the Dover City Council and the London Parachuting
cases, and by the trial judge in this case.
We add the
following as a coda — a point that troubled us during submissions, but
ultimately does not seem to us to affect our conclusion. Section 88B(1)(a)
and (c) sets out the Secretary of State’s powers, on determination of a
section 88 appeal, to grant planning permission for the development of land to
which the enforcement notice relates, or to determine any purpose for which the
land may be lawfully used.
Subsection (3)
provides:
Where an
appeal against an enforcement notice is brought under section 88 of this Act,
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 (1) of
this section — (a) any planning permission granted under that subsection
shall be treated as granted on that application; (b) in relation to a
grant of planning permission or a determination under that subsection, the
Secretary of State’s decision shall be final . . . .
We looked
anxiously at those words in case they threw any light on the use of the word
‘final’ in section 88(10), because the grant of a planning permission by the
Secretary of State in those circumstances is not ‘final’, but may be quashed
under section 245 (see section 242(3)(f)) or, more problematically, may
be remitted after a section 246 appeal. Does that lack of finality then
neutralise the use of the word ‘final’ in section 88(10)? In our opinion it does not. The formula used
in section 88 has been used in the planning legislation since the 1947 Act.
Originally it was argued that the words excluded (rather than limited) resort
to the courts. This construction was rejected in Pyx Granite Co Ltd v Ministry
of Housing and Local Government [1960] AC 260, and in the statutory scheme
thereafter the court’s power of appeal and to review was specifically included
(in the current Act in sections 245, 246 and 247) while the limiting words were
retained, at least in relation to decisions to grant planning permission — see
for a further example section 36(6) of the Act. The subsection is not dealing
with final determination but with limiting recourse to the courts.
So for those
reasons we would allow the appeals and quash the convictions. In these
circumstances we do not consider it necessary to consider the second ground of
appeal.
The court
certified the following point of law of general public importance:
Whether
section 88(10) of the Town and Country Planning Act 1971 relates only to an
appeal to the Secretary of State or, alternatively, whether it extends to
appeals to the High Court, the Court of Appeal or the House of Lords under
section 246 of the said Act.
Appeals
allowed and convictions quashed. Leave to appeal to the House of Lords refused.
