Site subject of established use certificate – Access only via land subject to enforcement notice – Planning authority obtaining injunction prohibiting access – Whether judge right to prohibit access to land having lawful use – Court of Appeal amending injunction but dismissing appeal
The first defendant owned a 5.3 acre site upon which the second defendant operated a skip hire business. The site, Homelands, Copthorne Road, Felbridge, was bottle-shaped, the narrow neck containing a house and a track by which access was gained to the rest of the bottle. Two strips of land in that large rectangle, the hatched land, had an established use certificate, granted in 1984. There was no such certificate covering the balance of the rectangle, the unhatched land. The plaintiff served on the second defendant an enforcement notice, the notice, on April 28 1993 alleging a material change of use in the deposit of waste material and use of the land for waste transfer purposes including storage of skips. An attached plan showed the whole site and the plaintiff required four steps to be taken, the first of which was to cease importation, deposit and transfer of waste material on and from the site. The defendants appealed against the notice and by his decision of May 1994 the inspector varied the notice, but reduced its ambit to include the whole of the land. The area left unhatched was therefore excluded from the terms of the notice. However the required steps remained unchanged. In 1994 skip lorries were observed entering the site. In early 1995 the plaintiff successfully applied for an injunction restraining the second defendant from using the hatched land as access to the remainder of the site in order to carry out, on the unhatched land, inter alia, the deposit of waste material and waste transfer purposes including the storage of skips. The defendants appealed contending, inter alia, that the injunction prohibited the access to land which enjoyed a lawful use.
Held The appeal was dismissed, but the terms of the injunction were varied.
1. The plaintiff and the inspector had been entitled to decide that the hatched land was not to be used for lorries going to the unhatched land even though that decision would prevent the use of the unhatched land for the purpose for which it had received an established use certificate. The notice was clear and provided that the hatched land was not be used for the transport of waste materials. It was doubtful whether the doctrine in Glamorgan County Council v Carter (1963) 14 P&CR 88, that a legal right could not be acquired by illegal use, was of general application.
2. There was a difference in the wording of the injunction and the wording of the first step. The terms of the injunction would prevent the second defendant, in the lawful execution of his business on the unhatched land, from driving an empty pick-up truck across the hatched land as access to the remainder. That was too wide and should be amended to bring it into line with the first step.
Peter Village (instructed by Courts & Co) appeared for the appellants; George Bartlett QC and Michale Druce (instructed by the solicitor to Surrey County Council) appeared for the respondents.
