Town and Country Planning Act 1971–Appeal from decision of justices holding enforcement notice invalid–Respondents with permission under the Town and Country Planning General Development Order 1977, article 3 and Schedule 1 Class II, to erect a fence not exceeding 1 m high, erected one about 2 m high–Respondents failed to comply with enforcement notice requiring fence to be dismantled–Justices held that steps required exceeded what was necessary to remedy breach and that notice was invalid–Held by the Divisional Court that the notice was properly framed on the basis that the breach of planning control was development without planning permission, not development which failed to comply with a condition or limitation–Held also that, although the validity of an enforcement notice can be challenged before justices on the ground (inter alia) that the steps required are excessive, the challenge must be confined to questions of validity and must not be directed to the merits of the notice–Smith v King discussed–Appeal allowed and case remitted to the justices with an intimation that they were not correct in acquitting the respondents
This was an
appeal by case stated by the justices for the Rochdale Petty Sessional Division,
the appellants being Rochdale Metropolitan Borough Council, the planning
authority. The respondents were Norman Simmonds, Jean A Simmonds and Hilary J
Foxton, owners of land abutting Blackstone Edge Old Road in Littleborough. The
appellants appealed against the justices’ decision that an enforcement notice
served on the respondents was invalid.
C A Cross
(instructed by Sharpe, Pritchard & Co, agents for J Malcolm Russum, of
Rochdale) appeared on behalf of the appellants; N Macleod QC and D Philip (instructed
by Mellor & Jackson, of Oldham) represented the respondents.
Giving the
judgment of the court, WEBSTER J said: This is an appeal by way of case stated
by the justices for the Petty Sessional Division of Rochdale in the County of
Greater Manchester.
The facts
around which the appeal revolves can be stated very shortly. The respondents
own some land abutting Blackstone Edge Old Road in Littleborough. On it they
erected a fence about 2 m high. For this purpose they required, but did not
have, planning permission. The only planning permission they had, or were
deemed to have, was to build a fence 1 m high.
The appellant,
Rochdale Metropolitan Borough Council, which is the local planning authority,
served on the respondents an enforcement notice, as it was entitled to do in
those circumstances. The case turns primarily on the terms of that
notice. By it the appellant stipulated the steps to be required to remedy the
breach of the planning control. Those steps were: ‘Dismantle the said fence and
level and seed or turf the ground upon which the fence and its supports now
stand.’ The respondents failed to comply
with that enforcement notice. There is a penalty for non-compliance with an
enforcement notice. Consequently the appellant brought the respondents before
the justices.
The justices
found that the notice had been properly served and that the steps required to
be taken had not been taken. None the less they accepted the respondents’
contention that to require the respondents totally to remove the fence and
supports would involve the respondents in unnecessary trouble and expense.
Accordingly they held, in effect, that the steps required by the notice to be
taken exceeded what was necessary to remedy the breach of planning control and
that therefore the notice was invalid.
There are
three respondents all of whom jointly own the land and fence at Blackstone Edge
Old Road, Littleborough. When the case was originally stated there was also
another fence involved, at Halifax Road. Since then, after an appeal to the
minister, planning permission for the fence erected at Halifax Road by the
first two of the three respondents has been granted. The court is therefore not
concerned with that fence.
Three points
need to be considered on this appeal. These are: first, whether the validity of
an enforcement notice can be challenged in proceedings before justices to
enforce the penalty for non-compliance; secondly, whether the erection of the
fence was a development without planning permission or whether it was one in respect
of which a condition or limitation subject to which planning permission had
been granted had not been complied with (the materiality of which distinction
will appear later in this judgment); and thirdly, if the validity of an
enforcement notice can be challenged in proceedings before the justices, how
far the justices’ powers extend: put shortly, can they substitute their own
view for those of the planning authority or can they only decide that the
enforcement notice is invalid if it is defective or otherwise bad in law?
Before
considering the first point it is necessary to look at the statutory provisions
involved. Section 87(1) of the Town and Country Planning Act 1971 provides
(quoting only the words relevant to the point in issue): ‘Where it appears to
the local planning authority that there has been a breach of planning control .
. . then, . . . the authority, if they consider it expedient to do so . . . ,
may serve a notice under this section (in this Act referred to as an
‘enforcement notice’) requiring the breach to be remedied.’
Section 88(1)
provides: ‘A person on whom an enforcement notice is served . . . 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,’ and seven grounds are then specified in
paragraphs (a) to (g) respectively, of which ground (f) is that relied upon by
the respondents in this case, namely ‘that the steps required by the notice to
be taken exceed what is necessary to remedy any breach of planning
control.’ One might perhaps have
expected that an appeal on all those grounds would have been reserved to the
minister. But the Act appears to provide otherwise.
Section 243
(1) is in these terms: ‘Subject to the provisions of this section–(a) the
validity of an enforcement notice shall not, except by way of an appeal under
Part V of this Act, be questioned in any proceedings whatsoever on any of the
grounds specified in section 88(1)(b) to (e) of this Act. . . .’ The obvious inference from that provision is
that the validity of an enforcement notice can be questioned on grounds (a),
(f) and (g) in proceedings other than an appeal under Part V (that is to say an
appeal to the minister) including, therefore, proceedings before justices to
enforce a penalty. This court came to that conclusion by a majority in Smith
v King (1969) 21 P&CR 560. This court is bound by that decision.
The second
point goes to the nature of the breach in question. Section 87(2) of the Act
provides:
There is a
breach of planning control if development has been carried out, whether before
or after the commencement of this Act, without the grant of planning permission
required in that behalf in accordance with Part III of the Act of 1962 or Part
III of this Act, or if any conditions or limitations subject to which planning
permission was granted have not been complied with.
It seems clear
to us that those provisions distinguish between breaches of two kinds: first,
developments without planning permission, and, secondly, developments for which
planning permission has been granted, but where a condition of limitation
subject to which it has been granted has not been complied with. That
distinction is reflected in section 87(6)(b), which deals with the contents of
an enforcement notice. It provides:
An
enforcement notice shall specify– . . . (b) the steps required by the authority
to be taken in order to remedy the breach, that is to say steps for the purpose
of restoring the land to its condition before the development took place or
(according to the particular circumstances of the breach) of securing
compliance with the conditions of limitations subject to which planning
permission was granted.
In our view
the construction of this paragraph is clear: where there is a development
without planning permission the planning authority is entitled to require
(although it need not do so) steps to be taken ‘for the purpose of restoring
the land to its condition before the development took place’: whereas where
there is a failure to comply with a condition or limitation, its powers extend
no further than to require steps to be taken ‘for the purpose of securing
compliance with the condition or limitation.’
Which kind of breach has occurred here?
That question has to be answered in order to consider the extent of the
powers which the planning authority can exercise by means of their enforcement
notice.
The permission
in question in this case is derived from article 3(1) of the Town and Country
Planning General Development Order 1977 (SI 1977 no 289). That article reads:
Subject to the
subsequent provisions of this order, development of any class specified in
Schedule 1 to this order is permitted . . . without the permission of the local
planning authority or of the Secretary of State.
Provided that
the permission granted by this order in respect of any such class of
development shall be defined by any limitation and be subject to any condition
imposed in the said Schedule 1 in relation to that class.
Schedule 1
consists of two columns, column 1 headed ‘Description of Development’ and
column 2 headed ‘Conditions.’ Column 1
contains a number of classes. The class in question is Class II ‘Sundry Minor
Operations,’ the material parts of which are in these terms: ‘The erection or
construction of . . . fences . . . not exceeding 1 metre in height where
abutting on a highway used by vehicular traffic. . . .’ Column 2 contains no condition upon
development of this class.
On the face of
those provisions the permission to erect a fence not exceeding one metre in
height is clearly not a permission subject to conditions (our emphasis).
At one stage of the hearing before us, however, it seemed to us well arguable
that the breach in question might none the less be a failure to comply with a
limitation subject to which planning permission was granted, rather than a
development without planning permission. For the words in the proviso to
article 3 are: ‘Provided that the permission . . . shall be defined by any
limitation . . .’; the words in column 1 in respect of Class II ‘not exceeding
1 metre in height’ could aptly be described as a ‘limitation’: and it would
seem well arguable that the word ‘limitation’ in the proviso to article 3(1) is
to be given the same meaning as the word ‘limitation’ in section 87(2) and
section 87(6)(b) of the Act. Mr MacLeod on behalf of the respondents declined
to accept the court’s invitation to pursue that argument, because it was not
open to him in the light of the decision of this court and of the Court of
Appeal in
P&CR 93.
In that case
the appellant in this court and in the Court of Appeal had built an extension
to his house. The relevant planning permission was contained in article 3(1) of
the Town and Country Planning General Development Order 1963, subject to any
condition or limitation imposed in the First Schedule to that order. Thus the
structure of that order was precisely the same as that of the 1968 order. In
column 1 of the Schedule the class in question was defined in the following
terms: ‘The enlargement, improvement or other alteration of a dwelling-house so
long as the cubic content of the original dwelling-house . . . is not exceeded
by more than 1,750 cu feet. . . .’ The
appellant’s extension exceeded the cubic content of the original dwelling-house
by about 2,780 cu ft. The breach of planning control was therefore very similar
in its nature to the breach of planning control in the present case. In both
cases the breach was an excess of what could be described as a ‘limitation’
subject to which planning permission was granted, that is to say a limitation
contained in the left-hand column of the Schedule. In that case the planning
authority by its enforcement notices alleged that the appellant had carried out
the development without planning permission and required him to pull down the
extension and to restore the land to its previous condition. The appellant
appealed against the enforcement notices to the minister on two grounds, the
first of which was that they should have charged him not with carrying out the
work without the grant of planning permission but with failing to comply with
the limitation on the permission granted by the order. The minister upheld the
notices on that ground and the Divisional Court and the Court of Appeal both
upheld the minister’s decision. Those courts held that the limit of cubic capacity
prescribed by the order did not limit or restrict a development which would
otherwise be authorised, but was part of the definition of the permitted
development itself and that accordingly the whole development had been carried
out without permission. Subsequently, in Copeland Borough Council v Secretary
of State for the Environment (1976) 31 P&CR 403, where the development
was similar to but not on all fours with that in Garland’s case, this
court reached a similar decision.
Mr MacLeod on
behalf of the respondents, did not seek to distinguish the present case from Garland’s
case or from Copeland’s case and in our judgment it is not open to this
court to do so. The consequence is that the breach in question is to be
regarded as a development without planning permission rather than a development
which failed to comply with a limitation (or condition).
We turn lastly
to the enforcement notice and to the third point, namely the extent to which
the validity of an enforcement notice can be challenged before the justices on
ground (f).
The material
terms of the enforcement notice are as follows:
FIRST
SCHEDULE (the breach of planning control) The erection of a fence . . . to a
height in excess of that for which planning permission is deemed to be granted
by Class II of Schedule 1 to the Town and Country Planning General Development
Order 1977. SECOND SCHEDULE (the steps required to be taken) Dismantle the said
fence and level and seed or turf the ground upon which the fence and its
supports now stand.
As we understand
his argument, Mr MacLeod contended that the notice was invalid either because
the First Schedule failed to comply with the requirements of section 87(6)(a),
in that it failed to specify, as that paragraph requires, ‘the matters alleged
to constitute a breach of planning control’; or because the First Schedule
constituted a statement to the effect that the breach complained of was a
failure to comply with a limitation which, in the light of the conclusion which
we have already reached, would be a misdirection in law.
As to the
first contention, in our judgment section 87(6)(a) does not require the
planning authority to specify the nature of the breach (that is to say to state
whether the breach is a development without planning control or one which fails
to comply with a limitation or condition); all that it requires is that the
matters alleged to constitute the breach shall be specified. That is precisely
what the appellant authority has done in the First Schedule to the enforcement
notice in this case. We therefore reject Mr MacLeod’s first contention.
As to his
second contention, we do not construe the First Schedule as constituting a
statement as to the nature of the breach at all. As to that question it appears
to us to be neutral. If, however, the notice as a whole, including the contents
of the Second Schedule, are regarded, it seems to us clear that the appellant
is to be taken as having specified, by implication, that the nature of the
breach complained of is that it was a development without planning permission,
since otherwise it would not have been entitled to require the respondents to
take steps, in effect, to restore the land to its condition before the
development took place. In our judgment, therefore, the appellant has complied
with the requirements of section 87(6)(a) and has not misdirected itself as to
the nature of the breach.
There remains
therefore the final question, namely whether the enforcement notice can be
challenged on ground (f) in that, as the respondents contended before us and
before the justices, the steps required to be taken exceed what is necessary to
remedy the breach. In our judgment the notice could not be challenged before
the justices on that ground. Although the clear inference from the wording of
section 243(1)(a) is that an enforcement notice can be questioned before the
justices, as well as before the minister, on (inter alia) ground (f), it
is an equally clear inference that the only question that can be raised before
the justices is as to the validity of the notice.
Smith v King (supra) cannot in our judgment be relied upon
as an authority for the proposition that the justices can consider a ground of
appeal under the Act on its merits. In that case the ground relied upon was
ground (g), namely that ‘the specified period for compliance with the notice
falls short of what should reasonably be allowed.’ The planning authority had required the
necessary steps to be taken within two months of the notices taking effect, 29
days later. The justices held that the notices were not reasonable by reason of
the time given and that they were accordingly invalid. The Divisional Court,
Lord Parker CJ concurring on this point, held that there had been no material
on which the justices, properly directing themselves, could have found that the
time allowed was unreasonable. Lord Parker at p 567 said: ‘. . . on the facts
here I am quite satisfied that the justices, properly applying their mind to
the law, could not have held that the two months allowed was not a reasonable
period.’
This decision
is not to be regarded as an authority for the proposition that in entertaining
an appeal against an enforcement notice under section 88 of the Act the
justices can review a planning authority’s enforcement notice on the merits of
any of the grounds stated in that section.
In our
judgment there was no invalidity in the Second Schedule to the enforcement
notice in this case. In Garland’s case the second ground of appeal
against the enforcement notices was that they made excessive requirements in
that they required the appellant to pull down the whole of the extension and
not merely the excess. As we have said, the minister upheld the notices and the
Divisional Court and thereafter the Court of Appeal dismissed the appellant’s
appeals against the minister’s decision. On this point Bridge J at p 99 said:
‘. . . if the development consisting of the building of the entire structure
was in its entirety a development without permission, the planning authority
cannot be wrong in requiring that entire structure to be demolished, however
hard that may seem.’
Precisely the
same reasoning applies to the Second Schedule to the enforcement notice in the
present case. In specifying the steps required to be taken in that schedule the
appellants were not exceeding their powers and are not for any reason to be
taken as having misdirected themselves in law. Nor, if the question were
material, would that requirement be perverse; that is to say the steps required
to be taken cannot be said to
directing itself as to the law, would make.
It follows
therefore that the magistrates were not correct in acquitting the respondents
and that accordingly this appeal is allowed. The case must go back to the
magistrates with that intimation.
The appeal
was allowed with costs.
