Enforcement notice — Amendment and variation — County matter — Town and Country Planning Act 1990 — Failure to specify remedial steps — Whether section 173(11) applied — Whether deemed planning permission under section 73A
The appellant
landowner used a site for dual uses; car parking and the dumping of waste. In
June 1991 the respondent district council issued an enforcement notice in
respect of the car-parking use, requiring that activity to cease. Following
various appeals, the enforcement notice took effect. The appellant failed to
comply with the remedial steps in the notice, although, in May 1995, he gave an
undertaking in injunctive proceedings brought by the district council not to
use part of the site for car parking. Meanwhile, in April 1993, the county
council, the authority responsible for waste, issued an enforcement notice in
respect of the waste-dumping use. Following the appellant’s appeal against that
notice, the inspector amended it, adding the allegation of car parking, but
failed to include any obligation to remedy that particular activity. In October
1995 the county council obtained a final injunction against the deposit of
waste material and against the car parking. In the course of the appellant’s
appeal against this injunction, the county council accepted that, by reason of
section 173(11) of the Town and Country Planning Act 1990, the omission of any
remedial steps in the second enforcement notice to stop the car parking had the
effect of granting the appellant planning permission for the car‑parking
use. In June 1997 the Court of Appeal discharged the injunction in so far as it
related to car parking. The appellant then applied to the High Court to be
discharged from the undertaking in relation to the car-parking use that he had
given in the district council’s action. Judge Toulmin held that the amendment
of the county council’s enforcement notice, by reference to the car-parking
use, was a nullity, and granted an injunction. The appellant appealed.
1. If, under planning
law, the appellant was entitled to use the site for car parking, it would be
quite wrong for the district council to hold him to the undertaking he gave in
the High Court.
2. The amendment to
the county council’s enforcement notice, made by the inspector, was ineffective.
Therefore, section 173(11) had no effect. A notice, expressed to be an
enforcement notice, specifying a particular breach of planning control by
requiring no steps to be taken to remedy that breach, could not properly be
described as an enforcement notice. It would not constitute enforcement action.
The power of correction or variation under section 176(1) does not permit to be
added to an enforcement notice
not themselves have included in the first place. The county council could not
have issued, in the first place, an enforcement notice specifying the
car-parking use as a breach of planning control but omitting any steps to
remedy the breaches. First, the control of a planning use consisting of car
parking is primarily a function of the district council. Second, the issuing of
an ‘enforcement notice’ alleging the car-parking use as a breach without
specifying any steps to remedy the breach, meant that the county council would
not be taking enforcement action in respect of the breach and would not be
exercising any of the functions of the district council mentioned in para 11(1)
of Schedule 1 to the 1990 Act. Para 11(3) would not therefore apply: see
pp41E-H, 47-49
the judgments
Garner v Secretary of State for the Environment (1998) 75 P&CR
273
Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196;
[1963] 2 WLR 225; [1963] 1 All ER 459; (1963) 61 LGR 152; 14 P&CR 266;
[1963] EGD 572; 185 EG 835; [1963] JPL 151, CA
Appeal against the
decision of Judge Toulmin QC
This was an appeal
brought by the appellant, Michael Verrechia, against the decision of Judge
Toulmin QC, sitting as a judge of the High Court, dismissing his application to
be released from an undertaking given in the High Court on 15 May 1995 for the
cessation of use in respect of car‑parking uses contrary to the
enforcement notice issued by the respondents, Tandridge District Council, on 11
June 1995, pursuant to the Town and Country Planning Act 1990; and the grant to
the respondent council of an injunction restraining the appellant from
continuing the car-parking use.
and James Pereira (instructed by Courts & Co) represented the appellant,
Michael Verrechia,
(instructed by the solicitor to Tandridge District Council) appeared for the
respondent council.
judgments were delivered.
SIR RICHARD SCOTT
V-C: This is an appeal that raises questions on
which, we are told, there is no authority as to the effect of section 173(11)
of the Town & Country Planning Act 1990. It is probably convenient to refer
now to the relevant statutory provisions. They are to be found in Part VII of
the 1990 Act. Part VII is headed ‘Enforcement’. Section 171A says that:
(1) For the purposes
of this Act —
(a) carrying out
development without the required planning permission;…
constitutes a breach
of planning control.
(2) For the purposes
of this Act —
(a) the issue of an
enforcement notice…
constitutes taking
enforcement action.
Section 172 deals
with the issue of enforcement notices. Subsection (1) provides that a local
planning authority may issue an enforcement notice where it appears to the
authority:
(a) that there has
been a breach of planning control; and
(b) that it is
expedient to issue the notice…
Section 173 deals
with the contents and effect of enforcement notices. Subsection (1)(a) requires
the enforcement notice to state:
the matters which
appear to the local planning authority to constitute the breach of planning
control…
Subsection (3)
provides:
An enforcement
notice shall specify the steps which the authority require to be taken, or the
activities which the authority require to cease, in order to achieve, wholly or
partly, any of the following purposes.
The ‘purposes’ are
set out in subsection (4). They include remedying the breach and remedying any
injury to amenity that has been caused by the breach. The word ‘partly’ in
subsection (3) is significant. It makes clear that the authority may choose to
under-enforce. That is, the authority need not require all the steps to be
taken that would completely remedy the breach.
Subsection (9) of
section 173 requires the enforcement notice to specify the period within which
any specified remedial steps are to be taken.
I now come to
subsection (11), the critical statutory provision in the present case. It
provides as follows:
Where —
(a) an enforcement
notice in respect of any breach of planning control could have required any
buildings or works to be removed or any activity to cease, but does not do so;
and
(b) all the
requirements of the notice have been complied with,
then, so far as the
notice did not so require, planning permission shall be treated as having been
granted by virtue of section 73A in respect of development consisting of the
construction of the buildings or works or, as the case may be, the carrying out
of the activities.
Subsection (11)
should be read in conjunction with subsection (3). If an authority
under-enforces, the remedial steps that they could have required but did not
require to be taken are avoided by a deemed grant of planning permission. This
is what it is said by the landowner has happened in the present case.
Section 173A allows a
local planning authority to withdraw an enforcement notice and to do so whether
or not the enforcement notice has already taken effect.
Section 174 deals
with appeals against enforcement notices. Subsection (2) specifies a number of
grounds on which an appeal can be brought. I shall mention only those that are
relevant in the present case, namely:
(a) that, in respect
of any breach of planning control which may be constituted by the matters
stated in the notice, planning permission ought to be granted…
(b) that those
matters have not occurred;
(c) that those
matters (if they occurred) do not constitute a breach of planning control;
(d) that, at the
date when the notice was issued, no enforcement action could be taken in
respect of any breach of planning control which may be constituted by those
matters;
…
(f) that the steps
required by the notice to be taken, or the activities required by the notice to
cease, exceed what is necessary to remedy any breach of planning control which
may be constituted by those matters or, as the case may be, to remedy any
injury to amenity which has been caused by any such breach;
(g) that any period
specified in the notice in accordance with section 173(9) falls short of what
should reasonably be allowed.
Ground (f) enables
the appellant to argue that the full remedial steps need not be taken and that,
in effect, the local planning authority ought to be under-enforcing.
Section 176(1) is
important for the purposes of this appeal. Subsection (1) provides:
On an appeal under
section 174 the Secretary of State may —
(a) correct any
defect, error or misdescription in the enforcement notice; or
(b) vary the terms
of the enforcement notice,
if he is satisfied
that the correction or variation will not cause injustice to the appellant or
the local planning authority.
These powers of the
Secretary of State can be exercised by the inspector appointed to conduct an
appeal inquiry. One of the issues arising on this appeal is whether an
inspector can exercise the power under section 176(1) to amend a local planning
authority’s enforcement notice by adding to the enforcement notice something
the local planning authority could not themselves have included in the
enforcement notice. Another issue relates to the part to be played by the
condition ‘if he is satisfied…’ etc.
Section 180 provides,
among other things, that if, after service of an enforcement notice, planning
permission is granted for any development carried out before the grant, the
enforcement notice ceases to have effect so far as inconsistent with that
permission. So, if a deemed grant of permission under section 173(11) takes
place, the permission overrides any previous enforcement notice relating to the
activity being franked by the deemed grant.
Section 182 permits
the Secretary of State to issue his own enforcement notice. He must first
consult the local planning authority, but the enforcement notice is the
Secretary of State’s enforcement notice. By contrast, on an appeal from a local
planning authority’s enforcement notice, although the Secretary of State may
correct or vary the enforcement notice, it remains the local planning
authority’s enforcement notice. Section 187B enables a local planning authority
to apply for an injunction
civil, not criminal, proceedings. The application could be made before the
issue of an enforcement notice, but that would be unusual. Usually, an
application for an injunction would be made after an enforcement notice had
been issued, had survived any appeal or other legal challenge but had still not
been obeyed.
Section 286(2) has
figured in the argument in this case. I have now left Part VII. This section is
in Part XII, entitled ‘Validity’. Subsection (2) provides, among other things,
that an enforcement notice under section 172 purporting to have been made, issued
or served by a county planning authority cannot be called into question in any
legal proceedings on the ground that it ought to have been issued by a district
planning authority.
Section 289(1)
provides —
Where the Secretary
of State gives a decision in proceedings on an appeal… against an enforcement
notice the appellant or the local planning authority… may… appeal to the High
Court against the decision on a point of law…
But Ord 94 r 12 of
the Rules of the Supreme Court require the appeal to be made within 28 days of
notification of the decision to the appellant. There is provision for a
discretionary extension of time.
Finally, I should
refer to some of the paragraphs in Schedule 1 to the Act. The Schedule has the
title ‘Local Planning Authorities: Distribution of Functions’. Para 1(1) of the
Schedule defines the expression ‘county matter’ as including, under subpara
(j):
the carrying out of
any operation which is, as respects the area in question, a prescribed
operation or an operation of a prescribed class or any use which is, as
respects that area,a prescribed use or use of a prescribed class.
The Town and Country
Planning (Prescription of County Matters) Regulations 1980 sets out what are
the prescribed matters referred to in para 1(1)(j). They include, under para
2(a), the use of land for the deposit of waste materials. That use is therefore
a ‘county matter’.
Paras 3 and 11 of
Schedule 1 to the Act distinguish between the planning functions of a district
planning authority and those of a county planning authority. Para 3 deals with
planning applications. It provides in 3(1):
The functions of a
local planning authority of determining —
(a) applications for
planning permission;…
— I need not read (b)
—
shall, subject to
sub-paragraph (2), be exercised by the district planning authority.
(2) The functions of
a local planning authority of determining any such application as is mentioned
in sub-paragraph (1) which [relates] to a county matter shall be exercised by
the county planning authority.
Para 11 deals with
enforcement notices. It provides as follows:
(1) The functions of
a local planning authority of —
(a) …
(b) issuing
enforcement notices under Section 172…
shall, subject to
sub-paragraphs (2) to (4), be exercisable by the district planning authority.
(2) In a case where
it appears to the district planning authority of a district in a
non-metropolitan county that the functions mentioned in sub-paragraph (1)
relate to county matters, they shall not exercise those functions without first
consulting the county planning authority.
(3) Subject to
sub-paragraph (4), in a non-metropolitan county those functions shall also be
exercisable by a county planning authority in a case where it appears to that
authority that they relate to a matter which should properly be considered a
county matter.
(4) In relation to a
matter which is a county matter by virtue of any of the provisions of paragraph
1(1)(a) to (h) the functions of a local planning authority specified in
sub-paragraph (1)(b) shall only be exercisable by the county planning
authority…
With that rather
tedious introduction to the relevant statutory framework, I can turn to the
facts of the case. The land in question is 71
Surrey. The owner of the land, the appellant before us, is Mr Michael
Verrechia. 71 Copthorne Road is bottle‑shaped. The neck of the bottle is
narrow and leads from Copthorne Road to the body of the bottle. The body of the
bottle is roughly rectangular. The land has an area of about 2ha.
Over the period
preceding the planning events that have given rise to this litigation, the land
had been used for two particular purposes. It had been used as a site for the
dumping of waste of various kinds. I shall refer to this as ‘the waste-dumping
use’. It had also been used for the parking of motor vehicles. I shall refer to
this as ‘the car-parking use’. Under para 11(1)(b) of Schedule 1 to the 1990
Act, an enforcement notice to remedy a breach of planning control consisting of
the car-parking use would ordinarily be issued by a district planning
authority. The district planning authority in relation to 71 Copthorne Road are
Tandridge District Council, the respondents to this appeal. But an enforcement
notice to remedy a breach of planning control consisting of the waste-dumping
use would, under para 11(4) of Schedule 1, have to be issued by the county
planning authority. The county planning authority in relation to 71 Copthorne
Road are Surrey County Council.
On 11 June 1991
Tandridge District Council issued an enforcement notice in respect of 71
Copthorne Road. The breach of planning control alleged in the notice was the
car-parking use. The steps required to be taken to remedy the breach were
described as follows:
Cease use of the
land for the commercial storage and/or parking of motor vehicles, remove all
such vehicles associated with such use from the land.
Mr Verrechia appealed
against this enforcement notice. Between 19
1991 an inspector’s inquiry took place. The inspector’s decision letter of 7
May 1992 upheld the enforcement notice but extended the time for compliance
from three to six months. On
dismissed on 1 February 1993, but leave to appeal to the Court of Appeal was
granted. On 5 March 1993 notice of appeal was served. I have taken those dates
from the chronology. The gap between the dismissal of the appeal and the
service of the notice seems rather long. I do not know what the explanation for
that was, but I do not think anything turns on it. The consequence of the
service of the notice of appeal was that there was a pending appeal; the
validity of the enforcement notice was still in issue.
On 28 April 1993
Surrey County Council issued an enforcement notice in respect of the
waste-dumping use. That was a county matter. The alleged breach of planning
control was described in the enforcement notice as follows:
Without planning
permission, material change of use of the land by the deposit of waste material
and by the use of the land for waste transfer purposes, including the storage
of skips on the land.
This enforcement
notice specified a number of steps to be taken to remedy that alleged breach.
The enforcement notice was accompanied by a plan showing the land in respect of
which the breach was alleged, that is to say, 71 Copthorne Road. Para 4 of the
enforcement notice set out the county council’s ‘Reasons for issuing this
notice’. I will refer to some of these reasons in more detail later.
Mr Verrechia appealed
against this enforcement notice as he had appealed against Tandridge District
Council’s enforcement notice. He appealed on grounds (a), (b), (c), (d), (f)
and (g) as set out in section 174(2) of the 1990 Act. An inspector’s inquiry
pursuant to this appeal took place on 7 and 8 September 1993. At the time that
the inquiry took place Mr
challenging the district council’s enforcement notice, was still pending. The
inspector’s decision letter on the appeal against the county council’s
enforcement notice was dated 13 May 1994. In the meantime, however, on 9 March
1994, Mr
the High Court of his challenge to the district council’s enforcement notice
relating to the car-parking use was dismissed for want of prosecution. So, at
the date of the decision letter, 13 May 1994, the car-parking enforcement
notice had survived all Mr Verrechia’s legal challenges. The six months for
complying with the notice had started to run but had not yet expired.
It is the decision
letter of 13 May 1994 that has given rise to this litigation. The inspector, by
this letter, did, or purported to do, a number of things. First, he corrected
the plan that had been attached to the county court’s enforcement notice. He
dealt with that in para 4 of the letter:
It was agreed at the
inquiry that the plan attached to the notice (Plan A) is incorrect: the
boundaries of the area to which the notice should relate are shown on Plan B. I
will correct the notice accordingly under the powers set out in section 176(1)
of the Act; I can do so without causing injustice to either party.
Second, the inspector
stated in para 12 of his decision letter that the site
It is… common ground
that the site is also being used for the commercial storage and/or parking of
motor vehicles; the enforcement notice directed against this use has not yet
taken effect (paragraph 10 and 11 above). There is therefore a mixed use of the
site which should in my view be set out in the allegation in the notice. I will
make an appropriate correction to it.
It is important to
record that although it had been common ground at the inquiry that there was
this mixed use or, as I prefer to put it, dual use of the site, no suggestion
had been made during the inquiry that the enforcement notice should, for that
reason, be amended. No submissions had been sought from the parties as to
amendments that might be made. Moreover, although the district council’s
enforcement notice in respect of the car-parking use had not taken effect at
the date the inquiry took place, it had taken effect before the date of the
decision letter, 13 May 1994.
Third, the
inspector’s formal decision was set out in para 33 of the letter. I should read
para 33 in full:
For the above
reasons, and in exercise of the powers transferred to me, I determine this
appeal as follows:
(i) I correct the
enforcement notice:
(a) by substituting
for the plan attached thereto the plan attached to this letter; and
(b) by deleting from
paragraph 3 thereof all words following the heading ‘The breach of planning
control alleged’ and by substituting therefor the following new allegation:
‘Without planning
permission, the making of a material change in the use of the land to a mixed
use, for the commercial storage and/or parking of motor vehicles, for the
deposit of waste material and for waste transfer purpose including the storage
of skips on the land.’
(ii) I allow the
appeal on grounds (c) and (d) insofar as it related to the land shown without
any hatching within the area edged with a bold black line on the plan attached
to this letter.
(iii) I vary the
enforcement notice by the substitution for the periods specified for compliance
with each of the 4 requirements of the notice the period of 6 months in each
case.
(iv) I dismiss the
appeal and uphold the enforcement notice as corrected and varied insofar as it
related to the land shown hatched and cross-hatched black within the area edged
with a bold black line on the plan annexed to this letter, and refuse to grant
planning permission, in respect of that land, on the application deemed to have
been made under section 177 (5) of the amended Act.
The plan attached to
the letter shows the hatched area referred to in subparas (ii) and (iv) of para
33. The hatched area consisted of a narrow access way from Copthorne Road
roughly down the middle of the neck of the bottle to the rectangular body, and
of a small rectangle at the foot of the hatched access way. The attached plan
had at its foot a handwritten note of the inspector. The note said:
This is the plan to
which I refer in paragraph 33 of my decision letter.
There was a reference
number given. The photocopy I have is obscure, but I think his signature is
under the handwriting.
In amending the plan
attached to the enforcement notice, the inspector was exercising the statutory
power under section 176(1) of the Act. The inspector was exercising, or
purporting to exercise, the same power in amending the paragraph of the
enforcement notice, which stated:
Breach of planning
control alleged.
He added the
reference to the car-parking use. He did not, however, add any steps to be
taken to remedy the car-parking use. Whether this was an oversight or was a
result of confusion produced by Mr Verrechia’s legal challenges to the district
council’s enforcement notice, it is impossible now to know.
Certain, it is,
however, that the inspector’s amendment to the enforcement notice made a
nonsense of the enforcement notice read as a whole, and made a nonsense of
subparas (ii) and (iv) in para 33 of the decision letter.
As to the enforcement
notice as amended by the addition of a reference to the car-parking use in the
paragraph describing the alleged breach of planning control, the ‘Reasons’ for
issuing the notice, as set out in para 4, became wholly inappropriate. The
‘Reasons’ state, among other things, that:
it appears to the
council that the above breach of planning control has occurred within the last
10 years and we do not consider that planning permission should be given when a
development is contrary to the policies of the development plan and there are
no material considerations which would justify departing from the development
plan.
None of these matters
had been given any consideration at all by the county council in relation to
the car-parking use. Nor was it any of the county council’s business: para 3
(1) of the First Schedule. So, naturally, no remedial steps relating to the
car-parking use had been included in the enforcement notice, and the inspector
had added none.
As to para 33 of the
decision letter, Mr Verrechia’s appeal against the county council’s enforcement
notice became an appeal against the enforcement notice as amended. Subpara (ii)
of para 33 allowed the appeal under grounds (c) and (d). In respect of which
breaches was the appeal allowed? If the amended enforcement notice is taken at
face value, the appeal was allowed in respect of all the breaches, as specified
in the enforcement notice, so far as the unhatched land was concerned. The
enforcement notice was, apparently, quashed in respect of the unhatched land.
As to subpara (iv), in respect of which breaches was the appeal dismissed? It
was dismissed in respect of all the breaches, including, apparently, the
car-parking breaches, so far as the hatched land was concerned.
The obvious fact of
the matter is that the decision letter and its conclusions were drafted with an
eye to the original enforcement notice, with the original statement of the
breach and of the specified remedial
the addition of the reference to the car-parking use, para 33 makes no proper
sense.
Important legal
proceedings have taken place since the date of the 13
letter. On 29 November 1994 Tandridge District Council resolved to seek an
injunction under section 187B to put a stop to the car-parking use. The
district council’s enforcement notice had become effective. Mr Verrechia’s
challenges through the courts to the notice had failed, but he had still not
obeyed it. So, on 19 January 1995, the district council issued an originating
summons seeking an injunction. On 2
commenced civil proceedings seeking injunctions to restrain the waste-dumping
use and also, curiously, the car-parking use. Mr Verrechia had not obeyed this
enforcement notice either. He had not complied with the remedial steps
required. On 11 May 1995 Mr Verrechia gave to the court an undertaking in the
district council’s proceedings. On that undertaking the originating summons was
adjourned generally. He undertook:
not to use the land
edged black on the plan attached hereto for the commercial storage and/or
parking of motor vehicles.
The undertaking
followed a provision intended to allow the storage and parking of motor
vehicles on the land to continue for certain specified purposes. I need not
read the provision.
On 27 October 1995 a
final injunction was obtained in the county council’s action against Mr
Verrechia. The final injunction, granted by Mr
as a deputy judge in chambers, included not only an injunction against the
deposit of waste material, which one would have expected given the terms of the
enforcement notice that the inspector had upheld, but also an injunction
against the commercial storage and parking of motor vehicles, as to which no remedial
steps whatever had been specified in the amended enforcement notice.
Mr Verrechia appealed
to the Court of Appeal against the 27 October 1995 injunction. His notice of
appeal was served on 23 November 1995. While this appeal was pending the section
173(11) point suddenly occurred to the county council. It occurred to the
county council that as a result of the inspector’s amendment of the county
council’s enforcement notice by adding the reference to the car-parking use,
but with no remedial steps to stop the car-parking use being added, section
173(11) had had the effect of granting Mr Verrechia planning permission for the
car-parking use. This was notwithstanding that the district council’s
enforcement notice imposing remedial steps to remedy the car-parking use had
already been upheld through the courts. The county council’s view as to the
effect of section 173(11) was expressed in an addendum to their
counsel’s written outline submissions placed before the Court of Appeal. The
submissions included the following paragraphs:
5. In these
circumstances, and subject to compliance with the requirements of the notice,
[the county council’s enforcement notice as amended] section
as having been granted in respect of the commercial storage and/or parking of
motor vehicles.
6. For this reason
(and not for the reason set out in the appellants’ outline submissions) the
respondent invites the court to amend the injunction by the deletion of the
reference to the commercial storage and/or parking of motor vehicles.
The written
submissions were provided to the Court of Appeal, but a copy would also have
been provided to Mr Verrechia’s legal advisers. It had two consequences. First,
on 12 June 1997 the Court of Appeal discharged the injunction in so far as it
related to car parking. It is interesting to notice that Staughton LJ, in his
judgment, agreeing to adjust the injunction in that way, gave as the reason
that the amended enforcement notice had not required any car-parking remedial
steps to be taken. Second, on 11 June 1997 Mr Verrechia applied to the High
Court to be discharged from the undertaking in relation to the car-parking use
that he had given to the court in the district council’s action. The
consequence of that application was that the district council’s originating
summons, which had been adjourned generally, was restored for hearing.
The case came on
before Judge Toulmin. The question for decision was whether an injunction to
restore continuance of the car-parking use should be granted in respect of the
district council’s enforcement notice. Mr
Toulmin the same case, broadly, as has been argued before us, namely that the
effect of the inspector’s amendment of the county council’s enforcement notice
was, by reason of section 173(11), that Mr Verrechia obtained planning
permission to continue the car-parking use. Section 180(1) of the 1990 Act was
presumably prayed in aid. It was said that the district council’s enforcement
notice had been overridden by the deemed grant of planning permission under
section 173(11). No injunction, therefore, should be granted. The judge, on 23
February 1998, rejected this case. He held, in a careful reserved judgment,
that the purported amendment of the county council’s enforcement notice, by the
addition of the reference to the car‑parking use as a breach, was a
nullity.
His reasons are
expressed at pp27 and 28 of the transcript of his approved judgment. At p27 he
says:
It must be implicit
in section 176(1) of the 1990 Act that the Secretary of State’s inspector is
only entitled to make amendments provided such amendments are not a nullity. If
new categories of breaches of planning control are raised in the amendment it
must set out not only the alleged breaches of planning control but the steps
which must be taken to remedy the breaches. If no steps are specified, on the
principles in Miller-Mead v The Minister of Housing and Local
Government, the court is entitled to reach the conclusion that the
amendment to the notice by the second inspector is a nullity and is therefore
of no effect.
At p28:
In my view the
inspector, in his amendment to the enforcement notice,
fundamentally flawed. I conclude that the amendment to the notice by the
inspector was defective on its face and therefore a nullity and of no effect.
There was a second
issue before the judge. Suppose that he were wrong and that section 173(11) did
bite so as to grant planning permission for the car-parking use, to what land
did that deemed grant apply? Para 33 of the decision letter had purported to
allow the appeal in so far as the unhatched land was concerned. So far as the
unhatched land was concerned, the enforcement notice was, in effect, set aside.
So how could section 173(11) operate in respect of that land? It could only
operate as a grant of planning permission in respect of the hatched land, the
land as to which Mr Verrechia’s appeal had been dismissed and the enforcement
notice upheld. The judge accepted this argument. He held that the deemed grant
under section 173(11), if there was one, could, having regard to the terms of
para 33 of the decision letter, only apply to the hatched land.
There was also a
third issue. Whatever the answer on the first two issues might be, and even if
Mr Verrechia were right, should he be released from his undertaking? The judge
held that, in all the circumstances, he should not. But the judge, in any
event, granted an injunction, in effect replacing the undertaking, restraining
Mr Verrechia from continuing the car-parking use of the land. Mr Verrechia has
appealed to this court on all three issues.
Let me deal at once
with the third issue in order to get it out of the way. If Mr Verrechia is
right on the first two issues, it would seem to me quite wrong that he should
be held to the undertaking. First, the undertaking was interlocutory in
character. It did not dispose of the originating summons, which was simply
adjourned generally. The originating summons having been restored for hearing,
I would regard the undertaking as, in any event, spent. Moreover, the
undertaking was given under a clear misapprehension as to the law, assuming Mr
Verrachia to be right on the first issue. In those circumstances, it would, in
my opinion, be quite wrong for the district council, a public authority, to
hold him to the undertaking. If under planning law Mr Verrechia is entitled to
use 71
council should not, in my opinion, try to stop him.
A further point to be
got out of the way now is that the injunction granted by the judge was, it is
agreed, expressed in terms that were too wide. It omitted the saving provision
that had been part of the undertaking. That saving provision should, in any
event, be added to the injunction.
Let me turn to the
first, the most important, of the two outstanding issues. The case has been
argued before us on a somewhat wider front than it had been argued before Judge
Toulmin. Mr David Mole QC, counsel for the district council, has submitted that
the effect of the decision letter of 13
purported amendment was to render the amended enforcement notice void as being
contradictory and ambiguous. I do not accept this approach. The original
enforcement notice was, on any
and in law as to render the amended enforcement notice contradictory and
ambiguous, the right conclusion, in my judgment, would be that the amendment
was bad, not that the amended enforcement notice as a whole was bad. So, in my
judgment, the first issue required to be tested is the validity of the inspector’s
purported amendment of the ‘breach’ paragraph of the county council’s
enforcement notice.
I agree with the
judge on this issue that the amendment was ineffective and that, in the
circumstances of this case, section 173(11) has no effect. I reach that
conclusion by a slightly different route from that which he adopted. First, a
decision as to whether or not an enforcement notice in respect of the
car-parking use should be issued was a function of the district council: para
11(1) of Schedule 1 to the Act. The county council could exercise that function
if it appeared to the county council that that function related to a matter
that should properly be considered a county matter: para 11(3). The
waste-dumping use was a matter that could only properly be considered by the
county council: para 11(4). The waste‑dumping use related to the whole
site; so, apparently, did the car‑parking use. The two uses were being
carried on at the same time and on the same site. It seems to me, in these
circumstances, to be well arguable that the function of issuing an enforcement
notice in respect of the car‑parking use was a function that could have
appeared to the county council to relate to the waste-dumping use. But it never
did so appear to the county council. The county council never did decide to
issue an enforcement notice in respect of the car-parking use. It never did
purport to exercise the enforcement notice function of the district council in
relation to the car-parking use. Moreover, the issuing of an enforcement notice
is an enforcement action to deal with a believed breach of planning control. A
notice, expressed to be an enforcement notice, specifying a particular breach
of planning control but requiring no steps to be taken to remedy that breach,
could not, in my opinion, properly be described as an ‘enforcement notice’. It
would not constitute enforcement action.
An enforcement notice
can certainly under-enforce: see section 173(3). And section 173(11) is based
on the premise that an enforcement notice need not require to be taken all the
steps necessary to remedy the specified breach of planning control. The notice
can under-enforce. But a so-called enforcement notice that did does not specify
any steps at all to be taken could not, in my judgment, be an enforcement
notice for section 173 purposes. It follows, in my view, that if the county
council had issued their enforcement notice in the form produced by the
inspector’s amendment the county council would not have been exercising the
district council’s enforcement function in relation to the car-parking use.
Mr Charles George QC,
counsel for Mr Verrechia, submitted that a mixed use of land, such as there was
in the present case, must, for planning purposes, be regarded as a single
breach of planning control. Mr Mole, for the district council, was disposed to
agree that that was so. They both supported the proposition, not by authority —
and, so far as I know, there is none — but by reference to Circular 10/971
issued by the Secretary
their enforcement notices all uses in breach of planning control taking place
on the planning unit. The circular states at para 2120 of Annex 2:
…if the [local
planning authority] do not specify all the uses taking place on a planning unit
in a mixed use case, the Secretary of State’s or an Inspector’s appeal decision
will correct that notice, to reflect the actual situation on the land as it was
when the notice was issued, before dealing with any ‘deemed planning
application’ on that basis. In these circumstances, if the [local planning
authority] have failed to identify any uses of the land which may not already
be lawful, and to which planning objections would apply if they were to become
lawful, the effect of section 173(11) could be to grant deemed planning
permission for those uses if they are specified in the allegation but are not
required to cease.
1 Enforcing Planning Control: Legislative Provisions and Procedural
Requirements
This guidance may be
why the inspector amended the county council’s enforcement notice by adding
reference to the car-parking use. Be that as it may, the circular does not seem
to me to justify the conclusion that two separate uses of the same land at the
same time, each in breach of planning control, must, for the purposes of Part
VII of the 1990 Act, be regarded as a single breach. Suppose a case where one
use starts in 1990 and another commences in 1993 and where each is conducted by
different individuals on behalf of the site owner. One use may raise different
planning issues from the other. They may relate to one another in the sense
that they are being carried out on the same land at the same time. But that
seems to me no sufficient reason why they should be forced into a single-use
straitjacket.
It is, in my opinion,
a question of fact and degree whether the activities on the site that are in
breach of planning control constitute a single breach or a number of separate
breaches. In Garner v Secretary of State for the Environment
(1998) 75 P&CR 273, a case on which Mr George placed some reliance, the
breaches of planning control clearly constituted a single breach on any
footing. In cases of that sort I agree that all the breaches should be alleged
in the enforcement notice.
In the present case,
however, it seems to me that the mixed use consisted of two separate uses:
first, the car-parking use was primarily the responsibility of the district
council to control. Second, the waste-dumping use was the sole responsibility
of the county council to control. In my judgment, in amending the ‘breach’
paragraph of the county council’s enforcement notice the inspector was adding a
new and separate breach. But issuing a so-called enforcement notice in respect
of that breach would not, unless remedial steps were specified, be a function
of the district council that the county council could exercise under para 11(3)
of Schedule
is the scope of the corrections or variations that can be made under section 176(1)?
The power is, it must be remembered, a power to correct or to vary the local
planning authority’s enforcement notice. The enforcement notice
Secretary of State has power to issue an enforcement notice: section 182.
Before doing so, he must consult the local planning authority: section 182(1).
The Secretary of State could not properly have issued his own enforcement
notice in respect of the car-parking use without first consulting the district
council.
In my judgment, the
power of correction or variation under section 176(1) does not permit to be
added to the enforcement notice anything that the local planning authority
whose enforcement notice it is could not themselves have included in the first
place. The county council could not, in my judgment, have issued in the first
place an enforcement notice specifying the car-parking use as a breach of
planning control but omitting any steps to remedy the breaches.
The county council could
not have done so, first, because the control of a planning use consisting of
car parking is primarily a function of the district council (para 3(1) of
Schedule 1); second, because in issuing an ‘enforcement notice’ alleging the
car-parking use as a breach but omitting to specify any steps to remedy the
breach, the county council would not be taking enforcement action in respect of
the breach, and would not be exercising any of the functions of the district
council mentioned in para 11(1) of Schedule 1 — so para 11(3) would not apply.
I conclude, for those
reasons, that the inspector’s purported amendment of the ‘breach’ paragraph in
the county council’s enforcement notice was outside the power conferred by
section 176(1) and was ineffective.
Moreover, section
173(11) only applies if the enforcement notice could have specified remedial
steps that were not, in the event, specified. What remedial steps in respect of
the car-parking use could the inspector have added by an amendment to the
enforcement notice? To have specified any steps at all would, in my view, have
been an injustice to Mr
inquiry and court proceedings in dealing with the district council’s
enforcement notice. In my opinion, no remedial steps in respect of the
car-parking use could have been added in May 1994 when the amendment to the
county council’s enforcement notice was made by the inspector. It follows, in
my judgment, that section 173(11) never came into play so far as the car-parking
use was concerned.
I would add that the
evident nonsense that the inspector’s amendment made of his decision letter and
of the enforcement notice that he purported to amend may well justify the
conclusion that, on that ground as well, the amendment could not have been an
effective exercise of the section 176(1) power. There ought, in my view, to
come a point at which the evident lack of sensible meaning and effect of a
correction or variation purportedly made under section 176(1) justifies the
conclusion that the power has not been validly exercised. If there is such a
principle it would, in my view, apply in this present case.
In the circumstances,
however, I will rest my judgment on the two points already discussed. First,
the inspector had no power to add by way of amendment something that the county
council could not have
have included the car-parking use in the breaches specified in their
enforcement notice without including also some steps, not necessarily all the
steps, necessary to remedy that breach. An enforcement notice can
under-enforce, but it cannot, in my judgment, fail to enforce at all. Second,
on the facts of this case there were, in May 1994, when the amendments to the
enforcement notice were made, no remedial steps that, in my view, could have
been properly added in respect of the car-parking use without injustice being
caused to the appellant, Mr Verrechia. The inspector could not have been
satisfied that the addition of remedial steps would not cause injustice. The
condition expressed in section 176(1) could not have been satisfied.
For each of these
reasons, in my judgment, section 173(11) does not apply so as to grant Mr
Verrechia planning permission for the car-parking use. These are substantially
the grounds expressed by the judge in coming to the same conclusion. In my
judgment, he came to the right conclusion.
As to the second
issue, I am fully in agreement with the judge’s view on this point. If the
amendment to the ‘breach’ paragraph of the county council’s enforcement notice
was valid, para 33 of the decision letter must be read and given effect on that
footing. On that footing, Mr Verrechia’s appeal succeeded on grounds (c) and
(d) in respect of the unhatched land. For that land the enforcement notice was
not upheld and does not apply. So, in relation to that land, section 173(11)
does not apply. The deemed grant of planning permission would apply only to the
hatched land. In the event, however, this point does not matter.
Save for amending the
terms of the injunction in the manner already agreed and treating Mr
Verrechia’s undertaking as discharged, I would dismiss this appeal.
SWINTON THOMAS LJ: I agree.
CHADWICK LJ: Section 187B of the Town and Country Planning Act 1990 enables a
local planning authority to apply to the court where they consider it necessary
for any actual or threatened breach of planning control to be restrained by
injunction. The question in the present appeal is whether the use of the land
edged black on the plan attached to the order made on 23 February 1998 by Judge
Toulmin CMG QC for the commercial storage or parking of motor vehicles does
constitute a breach of planning control.
It is common ground,
for the purposes of this appeal, that the commercial storage or parking of
motor vehicles on that land (other than storage or parking on the unhatched
part of that land, but only in so far as such use is incidental or ancillary to
the use of the unhatched land for purposes specified in an established use
certificate dated 7 June 1984) was, and, if resumed, would be, a material
change of use involving the carrying out of development within section 55(1) of
the Act. The carrying out of development by a change of use would constitute a
breach of planning control if it were effected without the required planning
permission: see
appellant in this context is that which, in the light of an enforcement notice
issued by Surrey County Council on 28 April 1993 as subsequently corrected or
varied by a decision letter dated 3 May 1994, must, it is said, be treated as
having been granted by virtue of section 173(11) of the Act.
Section 173(11) of
the Act is in these terms:
Where —
(a) an enforcement
notice in respect of any breach of planning control could have required any
buildings or works to be removed or any activity to cease, but does not do so;
and
(b) all the
requirements of the notice have been complied with,
then, so far as the
notice did not so require, planning permission shall be treated as having been
granted by virtue of section 73A in respect of development consisting of the
construction of the buildings or works or, as the case may be, the carrying out
of the activities.
An ‘enforcement
notice’, in the context of the present appeal, is a notice issued by the local
planning authority under powers conferred by section 172(1) of the Act. An
enforcement notice may also be issued by the Secretary of State under powers
conferred on him by section 182(1) of the Act; but that did not occur in this
case. An enforcement notice may be issued under section 172(1) where it appears
to the local planning authority: (a) that there has been a breach of planning
control; and (b) that it is expedient to issue the notice, having regard to the
provisions of the development plan and to any other material considerations. An
enforcement notice must contain the matters prescribed by section 173 of the
Act; in particular, it must state the matters that appear to the local planning
authority to constitute the breach of planning control: subsection
and it must specify the steps that the local planning authority require to be
taken or the activities that the authority require to cease: subsection (3).
Those must be requirements imposed in order to achieve, wholly or partly,
purposes specified in subsection (4). The purposes specified in subsection (4)
include remedying the breach of planning control by discontinuing any use of
the land. The enforcement notice must specify the date on which it is to take
effect: subsection (8); and the period at the end of which any steps are to
have been taken or any activities are to have ceased: subsection (9).
The land that is the
subject of this appeal is in Surrey, a non‑metropolitan county. At all
material times there have been two bodies that answer the description ‘the
local planning authority’ in relation to that land: see section 1(1) of the
Act. Those bodies are Surrey County Council, as the county planning authority,
and Tandridge District Council, as the district planning authority. The
distribution of planning functions between those bodies is regulated by section
1(3) of, and Schedule 1 to, the Act.
Para 11(1) of
Schedule 1 provides that certain of the functions of a local planning authority
— including the function of issuing enforcement notices under section 172 of
the Act — shall, subject to subparas (2) to (4) of that
that, in a non-metropolitan county, those functions shall also be exercisable
by a county planning authority in a case where it appears to that authority
that they relate to a matter that should properly be considered a county
matter.
Para 1(1) of Schedule
1 to the Act defines ‘county matters’. For present purposes, the relevant
provision is in subpara (j):
(j) the carrying out
of any operation which is, as respects the area in question, a prescribed
operation or an operation of a prescribed class or any use which is, as
respects that area, a prescribed use or use of a prescribed class.
Prescribed classes,
in that context, include:
(a) the use of land
or the carrying out of operations in or on land for the deposit of refuse or
waste materials;
(b) the erection of
any building, plant or machinery designed to be used wholly or mainly for
purposes of treating, storing, processing or disposing of refuse or waste
materials.
see para 2 of the Town
and Country Planning (Prescription of County Matters) Regulations 1980 (SI
1980/2010) and section 2(2) of the Planning (Consequential Provisions) Act
1990.
At the date, 28 April
1993, when the enforcement notice was issued by Surrey County Council action to
enforce planning control over the land had already been taken by Tandridge
District Council. The district council had issued an enforcement notice on 11
June 1991 in respect of an alleged breach of planning control identified as
‘Use of the Land for the commercial storage and/or parking motor vehicles’, and
had required that use to cease within three months from the date — 23 July 1991
— on which that notice took effect. That notice had been the subject of an
appeal to the Secretary of State under the provisions of section 174 of the
Act. The appeal was dismissed by a decision letter dated 7 May 1992 — save that
the period for compliance was extended from three to six months. The Secretary
of State’s decision was, itself, the subject of a further appeal to the High
Court under section 289(1) of the Act. That appeal was dismissed on 1 February
1993; but, with leave, a further appeal was lodged with the Court of Appeal on
5 March 1993. The effect was to postpone the operation of the enforcement
notice pending the final determination or the withdrawal of the appeal: section
175(4) of the Act.
It was in those
circumstances that the county council issued an enforcement notice on 28 April
1993. That enforcement notice identified the breach of planning control alleged
in para 3:
Without planning
permission, material change of use by the deposit of waste material and by the
use of the land for waste transfer purposes including the storage of skips on
the land.
That was plainly a
‘county matter’ within Schedule 1 to the Act. Para 5 of the notice set out the
steps that the county council required to be taken. Those were that the
appellant cease to import, deposit and transfer
material; remove from the site all stored skips; and remove from the site all
plant and equipment used in connection with the deposit, sorting and disposal
of waste material. The notice was to take effect on 8 June 1993, and periods
within which each of the required steps were to be taken were specified.
The county council’s
enforcement notice, as issued on 28 April 1993, made no reference to the use of
the land for the commercial storage or parking of motor vehicles. There were,
as it seems to me, at least two reasons why it should not do so. First, the
storage parking of motor vehicles on the land was not, of itself, a county
matter. Second, the enforcement of planning control in relation to that use was
already in hand. It was the subject of the district council’s enforcement
notice dated 11 June 1991, which had been upheld by the Secretary of State and
by the High Court and which was, at the time, under appeal to this court.
For so long as the
enforcement notice remained as issued on 28 April 1993, there could be no
foundation for the contention that any relevant planning permission in relation
to the commercial storage or parking of motor vehicles had, or could, arise
under section 173(11) of the Act. The enforcement notice as issued was a notice
in respect of the breach of planning control specified in para 3; that is to say,
the making, without planning permission, of a material change of use by the
deposit of waste material and by the use of the land for waste-transfer
purposes, including the storage of skips on the land. The steps that the local
planning authority could require to be taken, or the activities that the
authority could require to cease, had to be specified in the enforcement notice
— section 173(3) — but the requirements specified could not go beyond what was
needed to remedy, wholly or partly, the breach of planning control identified
in the notice. So, the enforcement notice, in the form in which it was issued,
could not require cessation of the commercial storage or parking of motor cars.
That is common ground. It is common ground, also, that the question whether or
not the condition in para (a) of section 173(11) is satisfied has to be
determined by reference to the enforcement notice that was issued, whether as
issued or as corrected or varied, not by reference to some hypothetical
enforcement notice that might have been issued.
The appellant does
not rely on the enforcement notice as issued on 28
enforcement notice, also, was the subject of an appeal to the Secretary of
State under section 174 of the Act. In para 33(i)(b) of a decision letter dated
3 May 1994, the inspector appointed to exercise the powers of the Secretary of
State in relation to the appeal purported to correct the enforcement notice:
by deleting from
paragraph 3 thereof all words following the heading ‘The breach of planning
control alleged’ and by substituting therefore the following new allegation:
‘Without planning
permission, the making of a material change in the use of the land to a mixed
use, for the commercial storage and/or parking of motor vehicles, for the deposit
of waste material and for waste transfer purposes including the storage of
skips on the land.’
The power of the
Secretary of State to correct or vary an enforcement notice issued by a local
planning authority is conferred by section 176(1) of the Act:
On an appeal under
section 174 the Secretary of State may —
(a) correct any
defect, error or misdescription in the enforcement notice; or
(b) vary the terms
of the enforcement notice,
if he is satisfied
that the correction or variation will not cause injustice to the appellant or
the local planning authority.
It is clear from the
decision letter of 3 May 1994 itself that the substitution of a new allegation
in place of that contained in para 3 of the county council’s enforcement notice
as issued was intended to be an exercise of the power to correct conferred by
para (a) of section 176(1).
The appellant relies
on the enforcement notice in its corrected form. It is said that an enforcement
notice in respect of a breach of planning control identified in the terms
substituted by correction could have required, consistently with section 173(3)
of the Act, that the land cease to be used for the commercial storage or
parking of motor vehicles. It did not do so. Accordingly, so it is said, once
all the requirements actually imposed by the enforcement notice, as corrected,
are complied with, planning permission must be treated as having been granted
under section 173(11) of the Act in respect of development consisting of the
carrying out of those activities — that is to say, the commercial storage or
parking of motor vehicles — the cessation of which could have been (but was
not) required by the enforcement notice.
That submission
depends for its validity on the premise that it is permissible (indeed,
mandatory), in the context of section 173(11), to ignore the circumstances in
which the enforcement notice dated 28 April 1993 came to be in the form in
which it is said that it must now be read, following correction by the
Secretary of State. If that is a false premise, then the submission is plainly
misconceived.
I have already
explained why the enforcement notice, in the form in which it was issued by the
county council on 28 April 1993, could not have required the use of the land
for the commercial storage or parking or motor vehicles to cease. Unless the
history of the notice can be ignored, it is pertinent to ask how a notice that,
as issued, could not have required that use to cease has been transformed into
a notice that could have required that use to cease. The only act by which that
transformation could have been effected is the act of correcting the notice.
But, for the reasons the Vice-Chancellor has already given, the Secretary of
State, could not, in the circumstances of this case, have imposed a requirement,
in the context of correcting the notice, that the land cease to be used for the
commercial storage or parking of motor vehicles. If the requirement itself
could not have been imposed by anything done by the Secretary of State in the
context of correcting the notice, then it must follow — as it seems to me —
that the notice could not have been transformed, by the correction that was
made, from a notice that could not have required the use to cease into a notice
that could have required the use to cease.
There are, as it
seems to me, at least three reasons why, in the circumstances of this case, the
Secretary of State could not have imposed a requirement, in the context of
correcting or varying the notice under the powers conferred by section 176(1)
of the Act, that the land cease to be used for the commercial storage or
parking of motor vehicles. First, the power that the Secretary of State —
through his inspector — purported to exercise was the power, under para (a) of
that subsection, to ‘correct any defect, error or misdescription in the
enforcement notice’. It is, in my view, impossible to regard the statement in
para 3 of the enforcement notice as issued by the county council — in which the
breach of planning control is alleged to be a material change of use by the
deposit of waste material, etc, — as defective, in error or a misdescription.
The fact that there was some other use of the land that might also give rise to
a breach of planning control does not lead to the conclusion that the notice as
issued required correction on any of those grounds. It leads only to the
conclusion that it might have been open to the local planning authority to
issue a notice in a more extensive form. It follows, in my view, that the
purported exercise of the power to correct the statement in para 3 of the
enforcement notice as issued — under para (a) of section 176(1) of the Act —
was excessive. Without an alteration to para 3, the enforcement notice could
not include a requirement that the land cease to be used for the commercial
storage or parking of motor vehicles.
Second, I am not
persuaded that the power to vary an enforcement notice, conferred by para (b)
of section 176(1) of the Act, enables the Secretary of State to introduce some
provision that the local planning authority — whose notice it is — could not
themselves have included in the notice. In the present case, the county
council, as county planning authority, were constrained by para 11 of Schedule
1 to the Act. The function of issuing enforcement notices was exercisable by
the district planning authority. The county planning authority could exercise
that function only where it appeared to that authority that the function
related to a matter that should properly be considered a county matter: para
11(3) of Schedule 1. I am not persuaded that the restraint of commercial
storage or parking of motor vehicles (which is not a county matter) can
properly be said to relate to the deposit of waste material, the transfer of
waste or the storage of skips (which are county matters) if the only connection
between the two activities is that they are carried on at the same site. But,
be that as it may, the relevant question is what function, in relation to the
commercial storage and parking of motor vehicles, could the county planning
authority be said to be exercising if they were to issue an enforcement notice
that neither required that use to cease nor sought to control it in any way. An
enforcement notice issued by the district planning authority that identified
the use of the land for commercial storage or parking of motor vehicles as the
relevant breach of planning control but failed to specify any steps that the
authority required to be taken to remedy that breach would be a defective
notice. There is nothing in para 11(3) of Schedule 1 to the Act that empowers
the county planning authority to serve an enforcement notice that, if served by
the district
an exercise of the function of the district planning authority in relation to
the issue of enforcement notices.
Third, the power to
correct or vary the terms of an enforcement notice, conferred by section 176(1)
of the Act, is exercisable only if the Secretary of State is satisfied that the
correction or variation will not cause injustice to the appellant or to the
local authority. Section 1(1) of the Act requires that, subject to any express
provision to the contrary, references to a local planning authority shall be
construed as references to both the county planning authority and to the
district planning authority. Given that para 11(3) of Schedule 1 to the Act
empowers the county planning authority to exercise functions that, prima
facie, are exercisable by the district planning authority in connection
with the issue of enforcement notices, I can see no reason why ‘the local
planning authority’, whose interests section 176 requires the Secretary of
State to consider, should not include the district planning authority in a case
such as this, where the enforcement notice has been issued by the county
planning authority under para 11(3). Para 12 of Schedule 1 makes it clear that,
where parliament intended the phrase ‘the local planning authority’ to mean
only the authority that issued the notice — as in section 178(1) of the Act —
it made express provision to give effect to that intention. Accordingly, before
exercising the power to correct or vary conferred by section 176(1), it was
necessary for the Secretary of State to be satisfied that the correction or
variation would cause no injustice to the appellant, to the county council or
to the district council.
It is plain from the
decision letter that the inspector did not consider the question of whether the
correction that he purported to make would cause injustice to the district
council. Had he done so, he could not have made a correction to the breach of
planning control alleged without also seeking to impose a requirement that the
land cease to be used for commercial storage or parking of motor vehicles.
Failure to impose that requirement would, or might, lead to a deemed grant of
planning permission under section 173(11) — as is alleged in the present case —
and, in the circumstances that the district council were seeking to enforce
planning control in relation to storage and parking (and had already been
upheld by the Secretary of State and by the courts in that endeavour), it would
plainly be unjust to grant permission without taking account of the district
council’s views. But, equally, the inspector could not impose a requirement
that the land cease to be used for commercial storage or parking without
causing injustice to the appellant, who had already fought that issue by way of
appeals against the enforcement notice issued by the district council in 1991,
and whose appeal to the Court of Appeal was (or was thought to be) pending at
the relevant time.
The position,
therefore, if regard is had to the circumstances in which the enforcement
notice dated 28 April 1993 came to be in the form in which it is said it must
now be read, is that it is clear that this is a notice that could not, at any
stage of its existence, have included a requirement that the land ceased to be
used for the commercial storage or parking of
cannot be satisfied.
But, as I have
indicated, it is submitted on behalf of the appellant that it is permissible,
in the context of section 173(11), to ignore the circumstances in which the
enforcement notice came to be in the form in which it is said it must now be
read. Indeed — as I understand the submission — it is not only permissible, it
is mandatory. Support for that submission is said to be found in the judgments
of this court in Miller-Mead v Minister of Housing and Local
Government [1963] 2 QB 196; in particular, in a passage in the judgment of
Upjohn LJ at p224:
It was at one stage
submitted by counsel for the appellant that we must look at some application
for a site licence in order to construe the enforcement notice. But I must
protest in strong terms against looking at any document except the enforcement
notice. This is a most important document, and the subject, who is being told he
is doing something contrary to planning permission and that he must remedy it,
is entitled to say that he must find out from within the four corners of the
document exactly what he is required to do or abstain from doing.
Nothing in this
judgment is intended to cast any doubt on that statement of principle. But the
principle falls to be applied in conjunction with the provision for correction
or alteration in section 176(1) of the Act in a case where the enforcement
notice had been the subject of an appeal under section 174. There is no
machinery within the Act — or (as we have been told) in any regulations made
under the Act — that requires or enables the enforcement notice as issued to be
amended on its face. That is to say, there is no machinery that brings into
existence a single document that shows the enforcement notice in its corrected
or varied form. In order to ascertain whether or not an enforcement notice that
has been the subject of an appeal under section 174 of the Act has, in the
course of that appeal, been corrected or varied by exercise of the power under
section 176(1), it is necessary to look at the decision letter. That is where
the correction or variation (if any) will appear.
Section 188(1)(a) of
the Act requires the district planning authority to keep a register with
respect to enforcement notices. Article 26(1)(g) of the Town and Country
Planning (General Development Procedure) Order 1995 (SI 1995/419) contains
provisions that, if observed, will bring to the attention of anyone inspecting
the register the fact that there has been an appeal under section 174 of the
Act. Inspection of the register may lead to an inspection of the decision
letter. But the scheme of the legislation and the regulations is such that a
correction or variation to the enforcement notice made under section 176(1)
will come to light only on inspection of a decision letter — not on inspection
of the enforcement notice itself.
If the appellant were
confined to the four corners of the enforcement notice in this case, the appeal
would fail — because there is nothing in the enforcement notice itself that
provides support for an argument under section 173(11) of the Act. If the
appellant relies on the decision letter — as he must in order to found an
argument based on the correction or
history of the enforcement notice is revealed. In particular, he — and anyone
else who is asked to deal with the land on the basis that a deemed planning
permission has arisen under section 173(11) — will know the circumstances in
which the enforcement notice comes to be in the form in which it is said it
should now be read. Accordingly, the premise that it is permissible (or
mandatory) to ignore those circumstances, which is the foundation of the
appellant’s contentions, is, in my view, not made out. I am satisfied that it
is a false premise.
For those reasons, as
well as for the reasons set out by the Vice-Chancellor, I would dismiss this
appeal; save to the extent that he has already indicated.
Appeal dismissed
