Town and country planning — Enforcement notices — Alleged material change of use to hostels — Previous appeal allowed by inspector — Material circumstances had not changed — Whether principle of issue estoppel applies to enforcement notice appeals — Whether principle also applies to appeals against refusal of planning permission
The appellant
owns a number of properties which he uses as hostels for homeless families.
Most of the properties have been used since 1978 predominantly for providing
such temporary accommodation for homeless families referred by local
authorities. A number of enforcement notices were originally issued in October
1981 alleging a material change of use of the properties to use as a hotel or
hostels as the case may be. The appellant appealed against the enforcement
notices, and in 1982 the inspector decided that in respect of three properties
there had been no material change of use from budget hotels to hostels for
homeless families, since that change of use had not taken place. In respect of
a further property, the inspector decided that it was being used as a hotel and
not as a hostel and, exercising his power under section 36(3) of the 1971 Act,
he varied an earlier planning permission by deleting any reference to the use
of the premises as a hotel for homeless families.
The local
planning authority issued further enforcement notices in February 1985 in
respect of the same and additional properties and the notices each alleged a
breach of planning control as ‘the making of a material change in the use [of
the property] to use as a hostel for homeless families’. The appellant’s appeal
against the inspector’s decision to uphold those further enforcement notices
was dismissed by McCowan J (November 25 1986). On appeal it was contended on
behalf of the appellant that the general principle of law known as issue
estoppel applies to a decision made by the Secretary of State for the
Environment or by the inspector in an appeal against an enforcement notice. The
decisions made in the 1982 proceedings therefore estopped the local planning
authority from contending in the 1985 proceedings that there had been a
material change of use from hotels to hostels in respect of those properties
the subject of the earlier proceedings, since the circumstances in 1985 did not
differ in any relevant respect from those proved in 1982; and there was no
other ground upon which the council should be permitted to reopen the issues
which had then been finally decided. For the Secretary of State, it was
submitted that the principle of issue estoppel has no place in planning law and
in particular no place in deciding appeals under section 36 or 88 of the Town
and Country Planning Act 1971. If an enforcement notice was a valid notice, so
as to give rise to appeal proceedings under section 88, then, as under section
36, it was the statutory duty of the Secretary of State, or of an inspector to
whom determination of the appeal is delegated, to decide the appeal having
regard to all the evidence submitted. Due regard would be paid to any earlier
decision and such weight should be allowed to it as might appear to be
appropriate in all the circumstances.
appeal was allowed in part. The concept of issue estoppel does apply to the
working of the appeal procedure in section 88 of the Town and Country Planning
Act 1971 against enforcement notices, see pp 44E and 56D.
[1986] JPL 130, that the principle had no application to the decisions of the
inspectors hearing appeals against planning refusals under section 36 of the
Act, was distinguished; it is an essential requirement of issue estoppel that
the decision relied upon as giving rise to the application of the principle be
a final one between the parties, see p 46D. However, the principle may apply to
section 36 appeals where the person raising the principle of issue estoppel can
show an earlier decision in his favour as to his existing rights of use and
this is a decision on the same issue as that raised in the new proceedings, see
p 49H
The interest
of the public is properly protected in the first proceedings, see p 47F. The
burden of showing that issue estoppel applies rests upon the party claiming its
protection, see p 49A. Issue estoppel applies where the self-same issue arises
in further proceedings; it will be the same issue if there is no relevant
difference in the use being made of the property compared with the use at the
time relevant to the earlier proceedings. If an issue as to the use of property
has been decided in favour of an occupier in earlier proceedings, and there is
nothing to justify the issue being reopened, an issue estoppel will prevent the
local planning authority from contending that such a change of use has taken
place, see p 49D.
The inspector
had erred in law in finding that the principle of issue estoppel had no
application in respect of four of the enforcement notices.
Quaere whether the restrictive provisions of section 243 of, and para 2(3)
of Schedule 9 to, the Town and Country Planning Act 1971 prevent a local
planning authority from bringing further proceedings in which a person may wish
to defend himself against an attempt to make him criminally liable for a matter
for which he had previously been held not to be so liable, see p 56G.
to in the judgments
Fidelitas
Shipping Co Ltd v V/O Exportchleb [1966] 1
QB 630; [1965] 2 WLR 1059; [1965] 2 All ER 4; [1965] 1 Lloyd’s Rep 223, CA.
Henderson v Henderson (1843) 3 Hare 100.
Hoystead v Commissioner of Taxation [1926] AC 155, PC.
Lever
Finance Ltd v Westminster (City) London Borough
Council [1971] 1 QB 222; [1970] 3 WLR 732; (1970) 68 LGR 757, CA.
Maritime
Electric Co Ltd v General Dairies Ltd [1937]
AC 610.
McIlkenny v Chief Constable of The West Midlands [1980] QB 283; [1980]
2 WLR 689; [1980] 2 All ER 227, CA.
O’Reilly v Mackman [1983] 2AC 237; [1982] 3 WLR 1096; [1982] 3 All ER
1124, HL.
R v Smith (Thomas George) [1984] Crim LR 630; (1984)48
P&CR 392; [1985] JPL 183, CA.
Rockhold
Ltd v Secretary of State for the Environment and
South Oxfordshire District Council [1986] JPL 130.
Southend-on-Sea
Corporation v Hodgson (Wickford) Ltd [1962]
1 QB 416; [1961] 2 WLR 806; [1961] 2 All ER 46; (1961) 59 LGR 193; 12 P&CR
165.
Tebbutt v Haynes [1981] 2 All ER 238, CA.
Thoday v Thoday [1964] P 181; [1964] 2 WLR 371; [1964] 1 All ER
341, CA.
Wandsworth
London Borough Council v Winder [1985]
AC461; [1984] 3 WLR 1254; [1984] 3 All ER 976; (1984) 83 LGR 143, HL.
Western
Fish Products Ltd v Penwith District Council
[1981] 2 All ER 204; (1978) 77 LGR 185, 38 P&CR 7; [1978] JPL 623, CA.
Appeal against
a decision of McCowan J
This was an
appeal brought by the appellant under section 246(1) of the Town and Country
Planning Act 1971 alleging an error of law in the decision of an inspector to
refuse appeals against enforcement notices served on the appellant in 1985.
McCowan J dismissed the appellant’s appeal on November 25 1986, and the Court
of Appeal allowed the appellant’s appeal in part. The appeals relating to four
of the enforcement notices were remitted to the Secretary of State for
rehearing and determination in the light of the opinion of the court that the
inspector was obliged to allow the appeals and quash the enforcement notices.
Carnwath QC and Joseph Harper (instructed by Frank E C Forney & Partners)
for the appellant.
(instructed by the Treasury Solicitor) for the first respondent.
Williams (instructed by the solicitor to Hackney London Borough Council) for
the second respondent, the local planning authority.
delivered.
first judgment was given at the invitation of Parker LJ.
RALPH GIBSON
LJ: This appeal is brought by Aristophanes
Thrasyvoulou, the appellant, from the decision of McCowan J given on November
25 1986. Leave to appeal was granted by this court at the outset of the
hearing. The respondents are the Secretary of State and the London Borough of
Hackney, the local planning authority (‘the council’). The appeal raises the
important question whether the principle of issue estoppel has any place in the
law regulating planning appeals.
The appeal
concerns the rights of the appellant under planning law to use as accommodation
for homeless families a number of properties which he owns in Wilberforce Road,
London N4. By the decisions of the inspector, which were upheld by McCowan J,
it was held that such use amounted to use of the properties as hostels for
homeless families, that the appellant has no rights to use any of the
properties for such purpose, and that planning permission to continue such use
should not be granted.
Enforcement
notices dated February 2 1985 were served by the council in respect of five
separate properties and groups of properties. The effective notices and the
properties to which they related were as follows: Notice B: 3, 5 and 7
Wilberforce Road; Notice C: 11, 13 and 15; Notice D: 18; Notice E: 20; Notice
F: 25.
The notices
were in the same terms. In each case the breach of planning control was alleged
to be:
. . . the
making of a material change in the use (of the property) to use as a hostel for
homeless families.
The steps
required by the notices to be taken were stated to be: ‘To terminate the use of
the said land as a hostel for homeless families.’ In the annex to each notice the council
explained briefly why, pursuant to section 87 of the Town and Country Planning
Act 1971, they considered both that there had been with reference to each
property a breach of planning control after the end of 1963 and that it was
expedient to take enforcement action. They said:
The Council
considers that the use of these premises for the almost exclusive accommodation
of homeless families is materially different from their former use; and is a
use which it is inappropriate to allow to continue in an area which is
primarily residential, but where there are already a large number of hotel,
guesthouse, boarding house, hostel, lodging and similar establishments and
where a concentration or proliferation of hostels for homeless families
produces disproportionate strain on local educational, social and medical
services.
It is to be
noted that nothing was said as to what the ‘former use’ was or as to when the
change was alleged to have been made. It is not suggested that the notices were
thereby defective.
The case made
for the council on the merits with reference to the planning issues was
eventually successful. After an inquiry extending over five days in January and
March 1986, and a detailed inspection of the properties carried out on February
3 1986, Mr C H Johnson, the inspector appointed by the Secretary of State to
determine the appeals, held that all the properties were being used as hostels
for homeless families; that the lawful or established uses
occupation; and that there had been in each case a material change of use. In
addition he held that planning permission should not be granted for the
continuance in any of the properties of the use as hostels for homeless
families. It is right to emphasise, as was clear from the statement made in the
annex to each notice and from its case at the inquiry, that the council was
fully aware of the need for proper accommodation for homeless families and that
accommodation for those families should be provided in part and for short
periods in hostels, but the council was objecting on planning grounds to the
excessive concentration of properties used for hostels in this area. It is
common ground in this court that the inspector, so far as concerned the
planning issues, had directed himself correctly in law and had ample evidence
on which to find as he did.
The attack on
the inspector’s decision in this court is founded upon a novel ground. It is
said for the appellant that, irrespective of the merits of his case on the
planning issues, the council was estopped by issue estoppel from contending
before the inspector that the use made by the appellant of his properties was
as hostels for homeless families, or that the use actually being made
constituted a material change of use, or that it was other than a lawful use.
The issue estoppel is claimed to have arisen as a result of earlier enforcement
proceedings taken by the council against this appellant in 1982 with reference
to some but not all of the properties covered by the present five enforcement
notices.
The
earlier proceedings
The
proceedings in 1982 were concerned with 11, 13, 15, 18, 20 and 25 Wilberforce
Road, but the issue estoppel is said to result only from the contest and
decisions with reference to nos 11, 13, 15 and 25. In 1982 the distinction
between use of land as an hotel from use as a hostel and the possible
materiality in planning terms of a change from one to the other were less clear
than later they became.
Before dealing
with the issues in the earlier proceedings it is necessary to state some facts
which were not in dispute. All these properties had, since 1978, been used
predominantly for providing temporary accommodation for homeless families
referred by local authorities under their statutory duties. Prior to 1981 there
had been grants of planning permission for the use of nos 3, 5, 7 and 20 for
hotel use. In respect of no 11 there was an established use certificate for
hotel use.
The issues in
1982 with reference to the relevant properties were as follows:
(i) By an enforcement notice dated October 12
1981 the council alleged that there had been development of no 13 without
permission by the making of a material change of use to use as an hotel and
required that use to be terminated. As an alternative, a second enforcement
notice made the same allegations and requirement on the basis that the use of
no 13 had been changed to that of hostel.
(ii) Four separate enforcement notices of October
12 1981 made identical alternative allegations and requirements with reference
to nos 15 and 25.
(iii) With reference to all those enforcement
notices the appellant appealed under section 88 of the 1971 Act, as amended, on
various grounds which (so far as now relevant) can be summarised briefly. His
main contention was that he was using the properties as budget hotels on the
basis that almost all his customers were homeless people for whom bookings were
made by local authorities. Any breach of planning control by change of use to
use as an hotel had occurred before the beginning of 1964: section 88(1)(e).
So far as concerned the allegation that there had been a change to use as
hostels, the
control (section 88(1)(b)) and/or that the alleged breach of planning
control had not taken place (section 88(1)(c)) because that use was
covered by the allegedly lawful use as hotels. Finally, in each case he claimed
that planning permission ought to be granted so as to make lawful the use which
he was making of the properties.
(iv) As to no 11, in respect of which there was an
established use certificate for hotel use, an application for planning
permission had been made in May 1979 by the appellant for the retention of a
single-storey side extension and for its use as a reception area for that
property as a bed-and-breakfast hotel. The permission granted on March 26 1981
had been for ‘retention of the extension and its use as a reception area in
connection with the use of the premises as a hostel for homeless
families’. There was also a condition for removal of the extension by February
1986. The appellant appealed under section 36 of the 1971 Act against the
wording of the planning permission and the condition. Again his main contention
was that his use of the property was as an hotel.
It is
important to note that there was no enforcement notice in respect of no 11. The
attitude of the council apparently was that it was not seeking to stop the use
of no 11 for use as a hostel for homeless families: indeed, the council has
granted planning permission for the retention of the side extension in
connection with that use. The alleged distinction between hostel use and hotel
use was seen as important by both the council and the appellant. If the
permission remained in the terms in which it had been granted, the appellant,
while he could go on using that property as he then was using it, presumably feared
that he might have difficulty in reverting to what the council would regard as
normal hotel use if, for any reason, the supply of homeless families sponsored
by local authorities should disappear.
The contest
with reference to no 11 was therefore, in substance, that the appellant was
asserting that the then use for homeless families was within the established
hotel use and the council was contending that it was not. If the issues raised
by the council had been decided in its favour, therefore, the appellant could
have continued to use no 11 as he was then using it under the specifically
permitted hostel use, but he would have had to cease using nos 13 and 15 for
the same use.
An inquiry was
held over four days in March 1982 by Mr C Butler-Stoney, who was appointed to
determine the appeals. His findings were as follows:
(i) At the
time of service of the enforcement notices, nos 11, 13, 15 and 25 were being
used almost exclusively as accommodation for homeless people for whom bookings
were made by local authorities.
(ii) The circumstances of occupancy were as
follows: those staying in the properties were served breakfast, and the
furnished rooms were cleaned by staff daily. There were no cooking facilities
in rooms but communal kitchen space was provided to cater for the needs of
small children. There was no supervision of occupants, who were bound by normal
hotel rules.
(iii) The inspector concluded that the booking
arrangements and the facilities provided were those of hotels and not of
hostels.
(iv) Therefore the appeals in respect of nos 13,
15 and 25 succeeded so far as concerned any breach of planning control under
those notices which alleged change to use as hostels, since that change of use
had not taken place, and the enforcement notices alleging development by change
to that use were quashed.
(v) Further, as to nos 13 and 15, which had been
purchased by the appellant in 1977 for use in connection with no 11 as an
hotel, the evidence showed that they had been in use as a guesthouse since 1960
and therefore the appeals in respect of those properties succeeded also on
ground (e) under section 88(2), so
quashed.
(vi) As to no 25, which had been purchased by the
appellant in 1978, there had been use of the property as a guesthouse in 1955,
but that use had been abandoned. Therefore, there had been a change in 1978 to
use (as the inspector held it to be) as an hotel, and the appeal on ground (e)
under section 88(2) failed. The alternative enforcement notice alleging change
to use as an hotel was therefore upheld.
(vii) Having held that no 11 was being used as an
hotel and not as a hostel, the inspector, exercising his power under section
36(3) of the 1971 Act, varied the planning permission dated March 26 1981 by
deleting the reference to use of the premises as an hotel for homeless
families.
There was no
appeal by the council under section 246(1) of the 1971 Act alleging error of
law on the part of the inspector.
The submission
for the appellant in this court by Mr Carnwath, in brief summary, was that the
general principle of law known as issue estoppel applies to a decision made by
the Secretary of State or by the inspector in an appeal against an enforcement
notice under section 36 and section 88 of the 1971 Act. The decisions made in
the 1982 proceedings estopped the council from contending in the 1985
proceedings that there had been a material change of use in respect of nos 11,
13, 15 and 25, since the circumstances in 1985 did not differ in any relevant
respect from those proved in 1982; and there was no other ground upon which the
council should be permitted to reopen the issues which had been then finally
decided. The estoppel so arising in respect of those properties, which the
inspector failed to recognise or apply, should be held to have affected also
his decisions with reference to the other properties and that the decisions in
respect of all the properties should be remitted for rehearing: Rules of the
Supreme Court, Order 94, r 12(5).
For the
Secretary of State it was submitted by Mr Ouseley that the principle of issue
estoppel has no place in planning law and in particular no place in the
decision of appeals under section 36 or 88 of the 1971 Act. If an enforcement
notice was a valid notice, so as to give rise to appeal proceedings under
section 88, then, as under section 36, it was the statutory duty of the
Secretary of State, or of an inspector to whom determination of the appeal is
delegated, to decide the appeal having regard to all the evidence submitted.
Due regard would be paid to any earlier decision and such weight should be
allowed to it as might appear to be appropriate in all the circumstances. Such
proceedings were not private contests between the council and the appellant but
concerned also the public interest and the rights of any person having an
interest in the land: see Western Fish Products Ltd v Penwith
District Council [1981] 2 All ER 204. Provision is made for notice to other
parties interested in the outcome of the appeal and for the making of
submissions by them. Objection might be taken to the issuing under section 87
of an enforcement notice by a local planning authority on the ground that it
constituted an abuse of power, but in such case the only remedy is, said Mr
Ouseley, by application for judicial review to quash the enforcement notice,
and not by claiming to exclude evidence or particular submissions at the
inquiry. Finally, he said that the principle of issue estoppel, if applicable
in any form in these proceedings, applied only to nos 13 and 15 and could not
be applied to any other property.
The
exclusion of issue estoppel from planning appeals
It is
necessary to decide first whether issue estoppel is applicable at all in the
proceedings under consideration in this case before deciding whether it is
shown that the inspector went wrong in law with reference to any of the
appeals.
Mr Carnwath
invited the court to apply the principles stated by Diplock LJ (as he then was)
in Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630.
At p 642E Diplock LJ said:
This is but
an example of a specific application of the general rule of public policy, nemo
debet bis vexari pro una et eadem causa. The determination of the issue
between the parties gives rise to what I ventured to call in Thoday v Thoday
[1964] P 181, 198, an ‘issue estoppel’. It operates in subsequent suits between
the same parties in which the same issue arises. A fortiori it operates
in any subsequent proceedings in the same suit in which the issue has been
determined. The principle was expressed as long ago as 1843 in the words of
Wigram VC in Henderson v Henderson which were expressly approved
by the Judicial Committee of the Privy Council in Hoystead v Commissioner
of Taxation [1926] AC 155, 170. I would not seek to better them: I believe
I state the rule of the court correctly when I say that where a given matter
becomes the subject of litigation in, and of adjudication by, a court of
competent jurisdiction, the court requires the parties to that litigation to
bring forward their whole case, and will not (except under special
circumstances) permit the same parties to open the same subject of litigation
in respect of matter which might have been brought forward as part of the
subject in contest, but which was not brought forward, only because they have,
from negligence, inadvertence, or even accident, omitted part of their case.
The plea of res judicata applies, except in special cases, not only to
points upon which the court was actually required by the parties to form an
opinion and pronounce a judgment, but to every point which properly belonged to
the subject of litigation, and which the parties, exercising reasonable diligence,
might have brought forward at the time.
Issue estoppel
applies to arbitration as it does to litigation.
In denying the
applicability in any form of the principle there stated to appeals against
enforcement notices, Mr Ouseley was forced to argue that if, without error of
law, the Secretary of State or an inspector had determined in such an appeal,
as a matter of fact and degree, that there had been no material change of use
of a property as alleged by a local planning authority in an enforcement notice,
that authority could issue a new enforcement notice in the same terms on the
day following that determination and, in the absence of any change of
circumstances or other justification, persuade the Secretary of State or a
different inspector to conclude that there had been a material change of use.
Mr Ouseley argued that, without importing into planning law the principle of
issue estoppel, the occupiers of land are sufficiently protected by the
discretion and sense of fairness of planning authorities, of the Secretary of
State and of inspectors, and by the power to order costs against any planning
authority which might take new proceedings to reverse an earlier decision
without good cause.
I will first
consider these submissions with reference to the section 88 appeals, which
concern nos 13, 15 and 25, and then consider whether the conclusion reached
with reference to section 88 appeals applies also to the section 36 appeal in
respect of no 11.
McCowan J
accepted the submissions made on behalf of the Secretary of State. It was
argued by counsel then appearing for the appellant that the activities on the
properties had not changed since 1982. The decisions of 1982 were made on the
same facts as in 1986. The appeals should therefore be considered as res judicata
and that the council ‘should not be permitted to keep issuing enforcement
notices until they can find an inspector who holds in their favour’. In the
view of the judge, the doctrine of res judicata had no application. He
accepted the argument of Mr Laws for the Secretary of State that, appeal rights
having been exercised under section 88, the Secretary of State had the
responsibility of determining the appeal, or his inspector if he
inspector, so that he could not decide the issue for himself, he would not be
discharging the statutory task placed upon his shoulders. McCowan J considered
that that view of the law was confirmed by passages from the judgment of Forbes
J in Rockhold Ltd v Secretary of State for the Environment and South
Oxfordshire District Council [1986] JPL 130.
It must be
made clear that the way in which the issue estoppel point has been taken in
these proceedings has changed and developed over the progress of them to this
court. The point has been presented to this court differently from the way in
which it was presented to the inspector and thereafter to McCowan J. With
responsible generosity, as it seems to me, the Secretary of State has not
sought to argue that the point was not effectively taken below so as to
preclude reliance upon it in this court. The council, which is the second
respondent on this appeal, has taken the same position. That means that there
is no need for this court to examine closely in what terms the point was
raised, and it is sufficient to say that, if it had been argued below as it has
been argued in this court, a different result might have emerged as to part of
the case.
I have found
the main point in this appeal to be difficult. It seems that it has not
previously arisen for decision by the court over the years since 1947, during
which time the successive planning legislation has been in force, save for the
case of Rockhold Ltd mentioned above. That fact seemed surprising to me
and it caused me to feel some doubt over the correctness of the answer which
otherwise on general principle appeared to me to be clear. In the end, and for
the reasons which follow, it seems inescapable to me that, upon the proper
construction of the relevant provisions contained in the 1971 Act, Parliament
is not shown to have intended entirely to exclude, from the working of the
appeal procedure against enforcement notices, the application of the principle
of law and public policy contained in the concept of issue estoppel. The
principle is necessary for the protection, as a matter of right, of the
occupier of land against the unfair, although well-intentioned, repetition of
proceedings which, in my judgment, Parliament cannot be taken to have intended
to authorise.
Mr Ouseley
relied upon the reasoning and statements of this court in Western Fish
Products Ltd v Penwith DC in support of his argument that issue
estoppel cannot properly be extended to section 88 proceedings or to any appeal
proceedings under the 1971 Act. In that case this court considered the
application of proprietary estoppel and estoppel by representation with
reference to the actions and statements of a planning authority and its
officials. In the judgment of the court (Megaw, Lawton and Browne LJJ),
delivered by Megaw LJ, the following passages appear (p 219C):
An estoppel
cannot be raised to prevent the exercise of a statutory discretion or to
prevent or excuse the performance of a statutory duty (see Spencer Bower and
Turner on Estoppel by Representation 3rd ed, 1977, p 141 and the cases
there cited).
Then later in
the judgment, at p 219H:
Counsel for
the plaintiffs submitted that, notwithstanding the general principle that a
statutory body could not be estopped from performing its statutory duties,
there are exceptions recognised by this court.
There seem to
be two kinds of exceptions. If a planning authority, acting as such, delegates
to its officers powers to determine specific questions, such as applications
under sections 53 and 94 of the 1971 Act, any decisions they make cannot be
revoked. This kind of estoppel, if it be estoppel at all, is akin to res
judicata.
Then at p
221B:
We can deal
with the second exception shortly. If a planning authority waives a procedural
requirement relating to any application made to it for the exercise of its
statutory powers, it may be estopped from relying on lack of formality . . .
The extension
of the concept of estoppel beyond these two exceptions, in our judgment, would
not be justified. A further extension would erode the general principle as set
out in a long line of cases of which the decision of the Privy Council in Maritime
Electric Co Ltd v General Dairies Ltd . . . [1937] AC 610 and the
judgment of the Divisional Court in Southend-on-Sea Corporation v Hodgson
(Wickford) Ltd [1961] 2 All ER 46, [1962] 1 QB 416 are notable examples.
Parliament has given those who are aggrieved by refusals of planning permission
or the serving of enforcement notices a right of appeal to the Secretary of
State: see sections 36 and 88 of the 1971 Act. He can hear evidence as to the
merits and take into account policy considerations. The courts can do neither.
The application of the concept of estoppel because of what a planning officer
has represented could result in a court adjudging that a planning authority was
bound to allow a development which flouted its planning policy, with which the
courts are not concerned.
There is
another objection to any extension of the concept of estoppel which is
illustrated by the facts of the Lever Finance Ltd case ([1971] 1 QB
222). If the modifications which were permitted by the planning officer in that
case had been properly to be regarded as immaterial, no problem of general
principle would arise. But the court regarded itself as competent to decide as
to the materiality and, despite the submission to the contrary by the
successful plaintiffs, held that the modifications were material. On what basis
of evidence or judicial notice the court reached that conclusion, we need not
stay to consider. We assume both that the court had jurisdiction to decide that
question, and that, on the facts of that case, their decision as to materiality
was right. But then comes the difficulty, and the real danger of injustice. To
permit the estoppel no doubt avoided an injustice to the plaintiffs. But it
also may fairly be regarded as having caused an injustice to one or more
members of the public, the owners of adjacent houses who would be adversely
affected by this wrong and careless decision of the planning officer that the
modifications were not material. Yet they were not, and it would seem could
not, be heard. How, in their absence, could the court balance the respective
injustices according as the court did or did not hold that there was an
estoppel in favour of the plaintiffs?
What ‘equity’ is there in holding, if such be the effect of the
decision, that the potential injustice to a third party, as a result of the
granting of the estoppel is irrelevant?
At least it can be said that the less frequently this situation arises
the better for justice.
It is clear
that the court in that case was not considering issue estoppel arising from the
decisions by the Secretary of State, or by an inspector, of issues relating to
existing rights in an appeal under section 88. Such decisions are made in the
procedure provided by the Act after due notice to all parties concerned, after
provision of opportunity to interested parties to make representations, and
with proper regard to all relevant circumstances. To attach to such decisions
the capacity to give rise to issue estoppel, within the limits required by the
context in which they are made, is to give to those decisions, as I see it, the
force and effect which the statutory provisions require them to have and, for
my part, I find nothing in the reasoning of this court in Western Fish
Products to require any other view to be taken.
Mr Ouseley
submitted that decisions on appeals under section 36 against refusal of
planning permission have never been regarded as giving rise to issue estoppel
against the appellant when the appeals are rejected and such appellants have
always been regarded as free to keep making fresh applications. No doubt they
seek to make a new application sufficiently
on separate issues within successive applications no issue estoppel arises.
Therefore, it is said, issue estoppel cannot properly be held to be applicable
to section 88 appeals. It is in this context that the decision of Forbes J in
the Rockhold Ltd case is relevant. In that case there had been three
applications, made in succession, for planning permission to develop a site for
housing purposes. Each application went to appeal, and the three inspectors who
in turn rejected the appeals did so for seemingly different reasons.
It was
submitted for the appellant that, in so far as the first inspector had decided
that housing development on this site would not be prominent, consistency of
approach demanded that all inspectors should follow that lead. Forbes J
rejected that submission. He held that each inspector had to be free to
exercise his own judgment on what were matters of opinion and planning
expertise. For my part, I agree with the reasoning of Forbes J in that case,
but it is not decisive of the point raised in this case. It seems right to me
that, in general, issue estoppel has no application to the sort of section 36
proceedings with which Forbes J was concerned. There is a clear distinction, as
it seems to me, between the rejection of an appeal against the refusal, in
administrative discretion, of an application for planning consent to new
development and the holding on an appeal against an enforcement notice that a
use being made of land is a lawful use within the established rights of the
occupier. It is an essential requirement for application of the principle of
issue estoppel that the decision relied upon as giving rise to the estoppel be
a final decision between the parties. A decision on an appeal under section 88
that a particular use of land by the occupier is a lawful use within the
established rights of the occupier is, in my judgment, in that sense to be
regarded as a final decision. A decision on appeal under section 36 rejecting an
application for planning consent is not final in the same sense.
Next, the
interest of individual members of the public, or of the public at large, in the
result of an appeal under section 88 does not, as I think, exclude the
application of the principle. In Thoday v Thoday [1964] P 181,
referred to by Diplock LJ in the passage cited above from Fidelitas Shipping
Co case, the assertion of issue estoppel said to arise from the decision by
a judge of a divorce suit based upon cruelty was made with reference to new
divorce proceedings based upon desertion.
In its divorce
jurisdiction the court was required by section 4 of the Matrimonial Causes Act
1950 to exercise what Diplock LJ [in Thoday v Thoday] referred to
as a ‘quasi-inquisitorial function’. The statutory provisions were as follows:
4(1) On a petition for divorce it shall be the
duty of the court to inquire, so far as it reasonably can, into the facts
alleged and whether there has been any connivance or condonation on the part of
the petitioner and whether any collusion exists between the parties, and also
to inquire into any counter charge which is made against the petitioner.
(2) If the court is satisfied on the evidence
that — (a) the case for the petitioner has been proved . . . the court
shall pronounce a decree of divorce . . .
At p 196
Diplock LJ said:
To such a
function it is not easy to adapt the concept of estoppel inter partes,
which was developed under and is consistent only with the adversary system of
legal procedure which it is the function of this court to apply except in the
exercise of its jurisdiction in divorce.
‘Estoppel’
merely means that, under the rules of the adversary system of procedure upon
which the common law of England is based, a party is not allowed, in certain
circumstances, to prove in litigation particular facts or
in an action. If the court is required to exercise an inquisitorial function
and may inquire into facts which the parties do not choose to prove, or would
under the rules of the adversary system be prevented from proving, this is a
function to which the common law concept of estoppel is alien. It may well be a
rational rule to apply in the exercise of such an inquisitorial function to say
that if a court having jurisdiction to do so has once inquired into the truth
of a particular allegation of fact and reached a decision thereon, another
court of co-ordinate jurisdiction in the exercise of its own discretion should
not re-embark upon the same inquiry, but should accept the decision of the
first court. But this is a different concept from estoppel as hitherto known in
English law. It will be interesting to watch its development in future cases,
but fortunately it is not, in my view, necessary to develop it in the present
appeal.
Later in his
judgment, having examined the relationship of the findings in the earlier
decision to the issues sought to be raised in the current proceedings, Diplock
LJ held, notwithstanding the inquisitorial nature of the proceedings, that (p
199):
Had
Collingwood J in the earlier litigation made a specific finding that the
husband’s conduct during the period before the wife left him did not amount to
serious ill-treatment of the wife, irrespective of its actual or apprehended
effect on her health, this would, in my view, have given rise to an ‘issue
estoppel’ and would have prevented her from relying upon the same conduct as
constituting the necessary serious ill-treatment for the purposes of her
defence of just cause for separating from her husband or her allegation against
him of the matrimonial offence of constructive desertion.
Because no
such finding had been made, there was no estoppel on which the husband could
rely.
In my
judgment, if there is shown to be sufficient identity of issue, the principle
of issue estoppel is not prevented from being applied in and as arising from
appeal proceedings under section 88 of the 1971 Act by reason of the statutory
duty of the Secretary of State or of an inspector to have regard to matters
outside the private or separate interest and submissions of the appellant and
of the planning authority. The interest of the public and of other persons
particularly affected by the decision should be properly protected according to
law in the first proceedings, from which the estoppel may be held to arise. The
interest of the public and of other persons affected by the issue raised in the
later proceedings will receive proper protection by the application of the
principle of issue estoppel in the later proceedings. The fact that such
proceedings are not merely a private contest between the local planning
authority and the appellant may, in a given case, properly affect the decision
of the Secretary of State, or of the inspector, as to whether the issues in the
two sets of proceedings are to be regarded as sufficiently identical and as to
whether, on the facts of the particular case, any sufficient justification for
permitting the issue to be reopened has been shown. There is no ground for
holding that the principle has no application at all to such proceedings.
I see no force
in the other grounds put forward for denying application of the principle. I
accept that, in a proper case, the issuing of an enforcement notice might be
quashed on judicial review on the ground of abuse of power. Such proceedings
would not be excluded by the provisions of section 243(1) of the Act. But the
availability of judicial review as a means of questioning an enforcement notice
on the ground of abuse of power does not demonstrate that the principle of
issue estoppel should not be applied in and as arising from appeal proceedings
under section 88. In some cases, perhaps in most, it would not be clear whether
any relevant issue estoppel arose from the earlier proceedings, or should in
justice be applied in the new proceedings, until the
them have been closely examined against the issues decided in the earlier
proceedings. That is an investigation which, as it seems to me, can properly
and in most cases will more conveniently be carried out in the new section 88
appeal than in separate and preliminary judicial review proceedings.
When asked why
the remedy should be limited to judicial review, Mr Ouseley answered that he
relied upon the principles established in O’Reilly v Mackman
[1983] 2 AC 237. I take the main principle to be as stated by Lord Diplock at p
285D as follows:
Now that . .
. all remedies for infringements of rights protected by public law can be
obtained upon an application for judicial review, as can also remedies for
infringements of rights under private law if such infringements should also be
involved, it would in my view as a general rule be contrary to public policy, and
as such an abuse of the process of the court, to permit a person seeking to
establish that a decision of a public authority infringed rights to which he
was entitled to protection under public law to proceed by way of an ordinary
action and by this means to evade the provisions of Order 53 for the protection
of such authorities.
The protective
provisions referred to are the requirement for leave to apply granted on an
application made promptly and within a limited time, the requirement that the
application be supported by sworn affidavit evidence complying with the uberrimae
fidei rule and the provision of a speedy means of deciding the matter. In
my judgment, the principle stated by Lord Diplock does not exclude the right of
the person against whom enforcement proceedings are taken by a planning
authority to raise, as a matter of defence in the appeal proceedings under
section 88, a claim that the Secretary of State, or the inspector, should apply
the principle of issue estoppel against the planning authority: cf
Wandsworth London Borough Council v Winder [1985] AC 461.
A recent
statement of the principle by this court provides, in my judgment, a secure
basis for the decision of this case. Tebbutt v Haynes [1981] 2
All ER 238 was a case concerned with the applicability, in Chancery proceedings
over ownership of a house, of an issue estoppel against a wife and in favour of
a husband’s mother, said to arise in earlier proceedings in the Family Division
between wife and husband, in which the mother had been permitted to intervene.
Lord Denning
MR, at p 242G, said:
We considered
the question of issue estoppel recently in McIlkenny v Chief
Constable of West Midlands Police Force [1980] 2 All ER 227, [1980] QB 283.
I ventured to suggest this principle: if there has been an issue raised and
decided against a party in circumstances in which he has had a full and
fair opportunity of dealing with the whole case, then that issue must be taken
as being finally and conclusively decided against him. He is not at
liberty to reopen it unless the circumstances are such as to make it fair and
just that it should be reopened.
Brightman LJ
at p 244B, used words to the same effect:
The principle
involved is that of issue estoppel. A person should not have to fight all over
again the selfsame issue that has been decided before, provided that the party against
whom the estoppel is raised has had a fair and full opportunity to contest the
issue, so that it would not be just to allow him to reopen the matter in
subsequent proceedings.
Griffiths LJ
agreed with the reasons given by Lord Denning MR and Brightman LJ. I would hold
the principle so expressed to be applicable in these proceedings with reference
to section 88 appeals.
The principles
by which effect should be given to an issue estoppel seem to be clear. The
estoppel in this case is sought to be raised by one party to both sets of
proceedings, that is to say the appellant, against another party to both sets
of proceedings, the council. The burden of proving that the earlier decision
relied upon as giving rise to an estoppel was given upon grounds and in
circumstances which show it to have been a final decision upon the issue in the
second proceedings, with reference to which the estoppel is raised, rests upon
the party who claims to be protected by the estoppel: see Halsbury’s Laws of
England, 4th ed, vol 16, para 1551. It is for him to show that it is the
selfsame issue.
An allegation
made in 1985 that the current use of a property was use as a hostel for
homeless families and constituted a material change of use of that property is
capable of being shown to be the same issue as an allegation differing in no
material respect with reference to the use of the same property current in 1982
which was decided in earlier proceedings. It will, in my judgment, be shown to
be the same issue if there is no relevant difference in the use being made of
the property at the time relevant to the later proceedings as compared with the
use being made of the property at the time relevant to the earlier proceedings.
If that be proved, and the issue were decided in favour of the occupier of the
property in the earlier proceedings, and if there be nothing to justify permitting
the issue to be reopened, an issue estoppel will prevent the planning authority
from contending that such a change of use has taken place. It is not open to
the planning authority to relitigate the same issue: that means that the
estoppel cannot, for example, be displaced by a more copious citation of
authority, or by demonstration of the fact that the current exercise of
discretion or of judgment on matters of fact and degree has been operating
differently from the exercise of those powers at an earlier time, or by more
detailed evidence of the nature of the activities if there has been no material
change in fact in their nature between the time of the first decision and the
later proceedings.
That follows
from the clear principles cited by Diplock LJ in Fidelitas Shipping Co Ltd
from Wigram VC at p 642G:
. . . the
court requires the parties . . . to bring forward their whole case, and will
not (except under special circumstances) permit the same parties to open the
same subject of litigation in respect of matter which might have been brought
forward as part of the subject in contest, but which was not brought forward,
only because they have, from negligence, inadvertence, or even accident,
omitted part of their case.
The occupier
of the property would, however, fail to prove sufficient identity of the issue,
and would thereby have no protection from estoppel, if it is shown that the use
of the property at the time relevant to the later proceedings is materially
different from the use being made at the time relevant to the earlier
proceedings. It is not necessary to consider the different matters which may
help to make it fair and just to permit an issue, otherwise closed by issue
estoppel, to be reopened. An obvious example is proof of false or misleading
evidence as to the use being made of the property given at the time of the
earlier decision.
It is
necessary now to consider whether issue estoppel can arise out of the decision
by the Secretary of State or an inspector upon a section 36 appeal. In my judgment,
issue estoppel can so arise if the party seeking to raise it proves that the
earlier decision in the section 36 appeal was given in his favour against the
planning authority upon an issue as to his existing rights of use of the
property and was a decision of the same issue as that raised in the new
proceedings.
Upon the
findings of the inspector in the present proceedings, the issue decided in the
1982 proceedings on the section 36 appeal with reference to no 11, namely, that
the then use of the property was, and had been at the time of the grant of
planning permission which was varied, within the established use of no 11 as an
hotel, was capable of giving rise to issue estoppel in these proceedings in
favour of the appellant.
The
relevance of issue estoppel in this case
It has been
conceded that the point of issue estoppel was sufficiently taken by the
appellant before the inspector. It is necessary to consider how he dealt with
the point on the facts in order to decide whether he has been shown to have
gone wrong in law and, if so, with reference to which of the various appeals
before him.
The inspector
set out his decisions with great care and clarity. Having regard to the way in
which the case was submitted to him I would emphasise that, in my view, he is
in no way to be criticised for his handling of the issue estoppel point. He
noted at para 35 that the contentions made for the appellant included the
following:
The use of
these properties had not changed since the two earlier appeal decisions in 1978
and 1982. Specifically in 1982 the inspector found the same present-day use of
all the properties, except no 20, and concluded that these were hotels. It
would be unjust after these two earlier decisions to say now that the
properties were not hotels . . . . It could not be in the public interest for
the council to continue to pursue enforcement action on the basis of different
legal arguments.
It must be
noted that before the learned judge and in this court the appellant has placed
no reliance upon the earlier decision in 1978.
The inspector
also noted that the contentions made for the council included the following:
41 The first question . . .
ie whether or
not the present use was correctly described as a hostel
. . . could
only be answered by reference to the facts and features pertaining to the
actual use of the property. There was little dispute on this point, the
properties were used predominantly for providing accommodation for homeless
families . . . . These were placed by local authorities and the position had
not changed since the 1970s. There was some evidence that the occasional
tourist also stayed at the properties.
Then:
45 A hostel was a place where people lived or
stayed depending on the type of occupant. Students and nurses might be said to
‘live’ in their hostels whilst people ‘stayed’ in youth hostels. They had two
essential features, namely communal facilities such as cooking and washing
facilities which were shared and the standard of accommodation was modest. The
properties contained kitchens for residents’ use. Whilst these might be
described as baby bottling sterilising rooms they were in practice used by
adults for the preparation of food. At the time the notices were served no main
meals were provided by the management. Food was provided by the homeless
families and cooked for themselves.
Finally, the
inspector recorded as part of the submissions for the council the following:
48 The finding of the inspector in 1982 that a
number of the properties were hotels could not be relied upon by the appellants
because the question of whether the premises were a hotel or a hostel was one
of fact or opinion or of mixed fact and opinion. Each inspector must reach his
own decision and was
of State per Forbes J. Furthermore, the 1982 decision did not in this
respect appear to be based on a full citation of authority or of principle.
Thus, the premises were all correctly described as hostels for homeless people.
The inspector’s
reasons for his conclusions, so far as they touch upon the issue estoppel
point, included the following:
55 Although at my inspection I did not see every
room in each property, I saw the majority and I was careful to note the mode of
occupation and the standard of that accommodation. It was apparent that the
larger families are allocated more than one room, most of which contain a bed
or beds, wash hand basin, a cupboard or wardrobe, table and one or more chairs.
These family units are not self-contained however. In many cases the
accommodation was crowded, partly because of the number of persons present and
partly because of the quantity of personal effects in the rooms. It was evident
from the amount of stored food, household articles and cleansing materials,
pots and pans, kettles, televisions and, in at least one instance, the presence
of a washing line, that most of the families are occupying their rooms as their
homes, at least for the time being. That some of them appeared to be well
settled may be explained by the length of time they had been in residence.
56 . . . . The baby bottle steriliser rooms had
the appearance of conventional kitchens, each being provided with the basic
facilities for preparing food, although I saw no one using them. In some cases
the cookers are unusually large, having six burners . . . . It is clear from
the evidence that although it is against the management’s rules, these kitchens
are used by residents for the cooking of meals.
59 Having regard to the case law and all the
facts it seems to me that all the appeal properties are being used as hostels
rather than hotels. My reasons for this conclusion are that . . . the majority
of residents are homeless families referred to the premises and paid for on a
daily basis by their local authorities’ sponsors . . . the homeless have no
homes elsewhere and are therefore living in the accommodation as opposed to
staying away for holiday or business purposes. Their mode of occupation . . . suggests
that they have made their homes there for the time being . . . Communal
facilities are provided in the form of washing facilities and, even if not the
intention, kitchens are available and are used for the preparation of food,
this last factor being unknown in my experience in a conventional hotel . . .
65 I consider that the intensity of occupation
of the premises as hotels for homeless families and the effect of the demand
for local services by this type of occupant amounts to a significant difference
in character to a hotel or multiple-occupied residential use such as flats and,
as a matter of fact and degree, I conclude that this constitutes a material
change of use . . .
66 Whilst I appreciate that my findings in the
above respects are at variance with those of the 1982 appeal decision, in
respect of the majority of the properties, they have been reached on the basis
of very considerable volume of evidence and submissions as to law put before
me, much of which may not have been available to my predecessor.
I have already
referred to the fact that McCowan J held that issue estoppel, in the form in
which the matter was submitted to him, had no application in law. He found also
another ground of decision, namely that the decision of the inspector in these
proceedings did not appear to have been made on the same facts as that of the
inspector in 1982. He said that he had in mind in particular the aspect of
cooking. He compared the description of the communal kitchen in the
circumstances of occupancy as found by the inspector in the 1982 decision with
the description of the use of the communal kitchens in para 56 of the
inspector’s decision letter in the present proceedings, of which the substance
is set out above. McCowan J took the view, as I read his judgment,
that even if issue estoppel had been available as a matter of law in the form
in which it was raised before him, there was a material difference in the user
of the property in 1985 which would have rendered the estoppel inapplicable.
In my judgment,
the appellant has demonstrated that, so far as concerns nos 13 and 15, the
inspector misdirected himself in law by failing to consider, and properly to
apply, the principle of issue estoppel. The allegations made in the 1982
proceedings by the council were that the then use of these properties by the
appellant constituted a material change of use and was unlawful because not a
permitted or established use. The council’s case was that the then use was
unlawful whether it was properly to be categorised as hotel use or as hostel
use. The main issue that the then use was unlawful was decided against the
council; the specific decision was that the use being made of nos 13 and 15 was
properly to be described in law as hotel use, and as such was a permitted or
established use in respect of these properties. The allegations made in the
1985 enforcement notices were again that the use being made of nos 13 and 15 at
the date of the notices constituted a material change of use.
It is common
ground that the use being made of the properties in 1985 and that considered by
the inspector in these proceedings is, in all material respects — subject to
the matter of the kitchens to which I refer below — identical to the use being
made of the properties in 1982, which was held not to have constituted a
material change of use. Therefore the council, by the 1985 notices, was seeking
to litigate again against the appellant the selfsame issue as had been decided
against the council in the 1982 proceedings. The council had had, in 1982, full
and fair opportunity of dealing with the whole case, as had any other person
then interested in the result. The decision on the issue given in 1982 must be
taken to be final and conclusive against the council if there are no
circumstances raised by the council or by any other person interested, such as
would make it fair or just to permit the issue to be reopened. It was not
suggested that there were any such circumstances.
As to the
kitchens, although McCowan J (as I have said) regarded the difference in the
evidence as to the use of the kitchens as between 1982 and 1985 as a possible
answer to issue estoppel, if, contrary to his view, it was available to the
appellant, it was not argued for the Secretary of State or for Hackney Council
that there had been any material change of use since 1982 or that it was open
to the inspector to hold that there had been. I have seen in advance the
judgment of Parker LJ, and I agree with him that on the material before him the
inspector was bound to quash the notices relating to nos 13 and 15 and that any
additional evidence as to the use of kitchens could not prevent application of
the estoppel.
As to no 11, I
would reach the same conclusion. For the reasons I have given, the decision on
the section 36 appeal in the 1982 proceedings with reference to this property
gave rise to an issue estoppel in favour of the appellant, namely that the use
being made in 1985 had been previously held to be within the established use of
that property. The inspector failed, as with reference to nos 13 and 15, to
give effect to the issue estoppel claimed by the appellant.
Last, as to no
25, I have found the case to be less clear. In the 1982 proceedings the purpose
of the council was to demonstrate that the then use constituted a material
change of use and was not lawful under any permitted or established use of the
property. The issue of mixed fact and law raised by the allegation that the
then use constituted use of the property as a hostel and not as an hotel was
decided against the council after full and fair opportunity on its part to
contest that issue. The alternative issue that the then use constituted use as
an hotel and a material change of use because begun after 1964 without consent
was decided in favour of the council. Can the decision on the first issue give
rise to issue estoppel in the 1985 proceedings?
In Thoday’s
case [1964] P 181, cited above, Diplock LJ considered the nature of an issue
capable of giving rise to issue estoppel under the common law principle which
he regarded as an extension of the same principle which underlies cause of
action estoppel. At p 198 he said:
There are
many causes of action which can only be established by proving that two or more
different conditions are fulfilled. Such causes of action involve as many
separate issues between the parties as there are conditions to be fulfilled by
the plaintiff in order to establish his cause of action; and there may be cases
where the fulfilment of an identical condition is a requirement common to two
or more different causes of action. If in litigation upon one such cause of
action any of such separate issues as to whether a particular condition has
been fulfilled is determined by a court of competent jurisdiction, either upon
evidence or upon admission by a party to the litigation, neither party can, in
subsequent litigation between one another upon any cause of action which
depends upon the fulfilment of the identical condition, assert that the
condition was fulfilled if the court has in the first litigation determined
that it was not, or deny that it was fulfilled if the court in the first
litigation determined that it was.
Diplock LJ
later in his judgment applied that analysis to what he called ‘matrimonial
offence estoppel’. In short, an issue estoppel could arise, in his judgment,
with reference to one of the two conditions necessary to proof of the
matrimonial offence of cruelty, namely (i) conduct amounting to serious
ill-treatment of the spouse, and (ii) adverse effect or reasonable apprehension
of such effect upon the health of the spouse.
In my
judgment, that analysis can properly be applied to issue estoppel arising in
section 88 appeal proceedings. The issue of material change of use, as a matter
of fact and degree, to a use properly to be categorised as hostel use, and
materially different from hotel use, was a condition necessary to be satisfied
by the council in its enforcement proceedings under one of the then enforcement
notices. That issue was decided against the council. The same issue was raised
in the 1985 proceedings. I would hold that the 1982 decision gave rise to an
issue estoppel. We do not know, and it is not relevant to explore, why the
council did not take proceedings to force the appellant to cease the use which
he was making of no 25 in breach of the enforcement notice which the inspector
in 1982 had upheld. With reference to no 25 also I would hold that the
inspector went wrong in law in failing to give effect to the issue estoppel
claimed by the appellant.
As to the
other properties, I see no ground for questioning the validity of the
conclusions of the inspector, which were upheld by McCowan J after
consideration by him of the various criticisms directed at the inspector’s
findings on the merits of the planning issues. On those matters no appeal has
been brought to this court. The failure by the inspector to give effect to the
defences of issue estoppel with reference to nos 11, 13, 15 and 25 has no
impact, in my judgment, on the other parts of the case. I would therefore allow
the appeal to the extent indicated and no further, and I would remit the
appeals relating to nos 11, 13, 15 and 25 to the Secretary of State for
rehearing and determination by him in the light of the opinion of this court
that the inspector was obliged to allow the appeals to the Secretary of State
and quash the enforcement notices as proposed by Parker LJ in his judgment.
PARKER LJ: This appeal raises an important question of planning law. It arises
most directly with regard to two of the several properties to which the appeal
relates, all of which are situate in Wilberforce Road, London N4. I shall
therefore, initially, consider the position in relation to such two properties.
They are nos 13 and 15. Moreover, since the relevant facts are the
same in relation to both of them, I shall set out such facts only in relation
to one of them, namely no 13.
In October
1981 the Hackney Borough Council, which is the local planning authority for the
area, served on the appellant two enforcement notices in relation to the
property under section 87 of the Town and Country Planning Act 1971 as amended
(the Act). The power so to do arises where it appears to the authority that
there has been a breach of planning control after the end of 1963. A breach of
planning control consists, so far as immediately relevant, in the carrying out
of development without the planning permission required by Part III of the
earlier (1962) Planning Act or Part III of the Act. For present purposes the
only kind of development which needs to be mentioned is ‘the making of any
material change in the use of any buildings or other land’: see section 22(1)
of the Act.
Both of the
notices alleged a material change in the use of the land. One specified the
change of use as being ‘to use as an hotel’, and required that use to be
terminated. The other specified the change of use as being ‘to use as a
hostel’, and required that use to be terminated. I shall refer to the two
notices respectively as ‘the hotel notice’ and ‘the hostel notice’.
The appellant,
as he was entitled to do under section 88 of the Act, appealed against both
notices.
In the case of
the hotel notice he appealed on grounds (a), (e) and (h)
of the grounds specified in section 88(2) as the grounds upon which an appeal
may be brought. Stated shortly, such grounds are respectively: that planning
permission ought to be granted; that the breach of planning control alleged
occurred before the beginning of 1964, and that the period specified for
discontinuance of the use was too short.
It will thus
be seen that the appellant did not seek to challenge the alleged use as an
hotel but was contending that such use had commenced before the beginning of
1964. Only if this ground failed would ground (a) or (h) arise.
In the case of
the hostel notice, the appellant appealed additionally on grounds (b)
and (c), namely, that the use alleged did not constitute a breach of
planning control and that the use alleged had not taken place. If ground (c)
succeeded, the other grounds would not arise.
The appeal was
duly heard and determined by an inspector, pursuant to Schedule 9 to the Act,
in 1982. As to the hostel notice, he held that the property was being used as
an hotel not as a hostel. He therefore quashed the hostel notice. As to the
hotel notice, he held that change of use to an hotel had occurred before the
beginning of 1964. He accordingly quashed the hotel notice also.
The appeal
against both notices having succeeded, and the notices having been quashed, the
council was entitled to appeal on a point of law under section 246 of the Act,
but it did not seek to do so.
At this point
it is convenient to refer to certain further provisions of the Act. Section 243
provides, subject to other provisions not presently material, that the validity
of an enforcement notice shall not, except by way of an appeal under Part V of
the Act, be questioned in any proceedings whatsoever on any of the grounds on
which an appeal may be brought. The person on whom an enforcement notice is
served must therefore, if he wishes to challenge it on any of the specified
grounds, do so by way of appeal under section 88, albeit on other grounds he
could challenge by way of judicial review. This restriction applies of course
only to those seeking to challenge the notice, but once the inspector has made
his decision, both sides are subject to a like restriction.
Para 2(3) of
Schedule 9 provides:
Where an
appeal to which this Schedule applies has been determined by a
the Secretary of State and —
(a) except as provided in Part XII of this Act
the validity of his decision shall not be questioned in any proceedings
whatsoever;
The relevant
provision of Part XII in the present case is section 246, which gives both
sides a limited right of appeal.
These
provisions appear to me to show a very clear intention on the part of
Parliament that a decision on an appeal under section 88 should be truly final
and binding on both parties, subject only to a section 246 appeal.
In relation to
the restrictive provision in section 243(1), this court has had to consider
whether it prevented a person prosecuted under section 89 for failure to comply
with an enforcement notice from challenging its validity by way of defence. The
question arose in R v Smith (Thomas George) (1984) 48 P&CR
392. It was contended that the restriction prevented challenge only by way of
judicial review and did not prevent challenge by way of defence in criminal
proceedings. This contention was rejected.
At the
conclusion of the 1982 proceedings, therefore, the parties were both prohibited
from questioning the validity of the inspector’s decisions, save under section
246, and the council, not having exercised its right of appeal under that
section, the prohibition became unqualified.
I now return
to the factual history. In February 1985 the council served an enforcement
notice relating to the property. It again set up a material change of use as
the breach of planning control relied on and specified the change as being ‘to
use as a hostel for homeless families’.
The last three
words did not appear in the 1981 notice, but it has, in my view rightly, not
been suggested that the use set up by the council in the 1985 notice was in any
way different from the use which had been negatived by the inspector by his
decision in 1982.
The notice
itself is — whatever may be the effect of the 1982 decision — not open to
objection because it must on any view be open to the council to complain that,
although used as an hotel from before 1964 to 1982, there had since then been a
change from use as an hotel to use as a hostel.
The appellant
appealed, again relying on ground (c) and contending that the use was as
an hotel and not a hostel, but on this occasion he failed.
At para 59 of
his written decision the inspector said:
Having regard
to the case law and all the facts it seems to me that all the appeal properties
are being used as hostels rather than hotels.
Then in para
62:
Accordingly I
am satisfied that the breaches of control alleged in notices . . . C . . . have
taken place and the appeals on ground (c) fail.
Then in para
66:
Whilst I
appreciate that my findings in the above respects are at variance with those of
the 1982 appeal decision, in respect of the majority of the properties, they
have been reached on the basis of a very considerable body of evidence and
submissions as to law put before me, much of which may not have been available to
my predecessor.
Since it was
and is common ground that there had been no change of use since 1982, it is
thus clear that the inspector in 1985 came to the conclusion that the 1982
decision was wrong.
Before him the
appellant relied inter alia on the 1982 decision, but not as a bar to
any finding that the property was used as a hostel. The council’s contention is
recorded in para 48 of the decision, which reads:
The finding
of the inspector in 1982 that a number of the properties were hotels could not
be relied upon by the appellants because the question of whether the premises
were a hotel or a hostel was one of fact or opinion or of mixed fact and
opinion. Each inspector must reach his own decision and was not bound by the
decisions of previous inspectors. Rockhold Ltd v Secretary of State,
Forbes J, July 26 1985 (document 60). Furthermore, the 1982 decision did not in
this respect appear to be based on a full citation of authority or of
principle. Thus, the premises were all correctly described as hostels for
homeless people.
On his appeal
under section 246 to the High Court it was argued for the appellant, although
it was at best doubtful whether the point was fairly included in the grounds
stated in the notice of appeal, that the use up to and including 1982 could not
be challenged but was res judicata by reason of the 1982 decision.
McCowan J
dealt with the matter shortly. He accepted submissions on behalf of the
Secretary of State that once an appeal was instituted under section 88 it was
the duty of the Secretary of State, or in this case the inspector, to determine
it. If, it was said, the inspector was fettered by a previous decision so that
he could not decide the issue for himself, he would not be discharging the
statutory task placed upon his shoulders.
In this court
the matter has developed differently, the appellant setting up issue estoppel.
I agree with Gibson LJ that the principle is available on a section 88 appeal,
and I agree with his reasons. If it is so available, then it is, in my judgment,
clear that the inspector erred in law. There was no question of any change of
use since 1982. The council was seeking to reopen the selfsame issue as had
been decided against it in 1982, and seeking by more voluminous evidence and
more fully developed legal argument to reverse that decision. On the facts of
this case the inspector was, in my view, bound in law to quash the notice
relating to no 13. The learned judge mentioned the question of cooking space
and its use. There may well have been more evidence of the way in which the
kitchen space was used than had been available in 1982 but, since it was not,
and is not, contended that there had been a change of use since 1982, that
cannot be relevant. It can only amount at most to this, that had the additional
evidence been given in 1982, the inspector might then have reached a different
decision.
Apart
altogether from issue estoppel properly so called however, it appears to me
that the council was directly questioning the validity of the decision in 1982,
and this it is not entitled to do if the 1985 appeal consists in proceedings
within the meaning of para 2(3) of Schedule 9 to the Act. If, as has been held,
the proceedings referred to in section 243 of the Act include criminal
proceedings in which a person seeks to defend himself from non-compliance with
a notice, I can see no reason why ‘proceedings’ in para 2(3) of Schedule 9
should not include proceedings in which he is in effect seeking to defend
himself from an attempt by the council to render him potentially criminally
liable for continuing a use of premises, the continuance of which had
previously been held incapable of creating such criminal liability.
It is true
that a section 88 appeal is not a proceeding in court, but an appeal
under section 246 is a proceeding in court and specifically recognised to be
proceeding within the meaning of proceedings in section 243 for, were it not,
there would be no need to exempt a section 246 appeal from the otherwise total
ban. It appears to me somewhat unreal to suggest, in such circumstances, that a
section 88 appeal is not itself a proceeding and thus to permit it to be used,
via a fresh enforcement notice, to challenge the validity of an earlier
decision which was plainly intended to be final subject only to the section 246
appeal on law.
Since no
reliance was placed by the appellant on the restrictive provisions of section
243 and para 2(3) of the 9th Schedule, since we therefore heard no argument on
it and since I agree that the appellant succeeds on the basis of the issue
estoppel point, I express, however, no concluded view on the matter.
Even, however,
if a section 88 appeal is not a ‘proceeding’, the provisions of para 2(3)
appear to me to afford a strong supporting reason for the applicability of
issue estoppel to a section 88 appeal.
It is
certainly clear that if the council wished to challenge the validity of the
1982 decision, in point of law the method of so doing is, and is only, by way
of appeal to the High Court under section 246. When there is no appeal under
that section, I cannot think that Parliament intended that the council should
be entitled to serve a fresh notice and to contend, as it did, that the earlier
decision was bad in law or because it had better evidence.
For precisely
the same reasons the inspector was, in my judgment, bound in law to quash the
notice with regard to no 15.
The position
with respect to no 25 is different. In that case also there were both a hostel
notice and an hotel notice. In that case also the hostel notice was quashed.
The hotel notice was, however, upheld because the contention that the use began
before the beginning of 1964 was rejected. It is not clear to me why, having
succeeded on the hotel notice, the council should now seek to reject what it
asserted and the inspector upheld in 1982 and to reassert its alternative
assertion which was rejected in 1982. Whatever the reason — hostel use having
been rejected and hotel use having been confirmed in 1982 (and it being common
ground that there has been no subsequent change of use) — it cannot again
assert hostel use.
The inspector
was, in this case also, obliged to quash the notice.
I turn now to
the fourth of the properties alleged to be covered by issue estoppel, namely no
11, as to which the factual and procedural history are different. At all
material times there was an established use certificate in respect of this
property for hotel use. In 1979 the appellant applied for planning permission
for the retention of a single-storey side extension and for its use as a
reception area for that property as a bed-and-breakfast hotel. On March 26 1981
permission was granted for ‘the retention of the extension and its use as a
reception area in connection with the use of the premises as a hostel for
homeless families’. It was, however, a condition that the extension be removed
by February 1986.
The appellant
appealed under section 36 of the Act, seeking the removal of the condition and
variation of the wording of the permission by deletion of the words ‘in
connection with the use of the premises as a hostel for homeless families’.
Again the issue between parties was whether the premises were being used as a
hostel or as an hotel, and again the inspector held that the premises were
being used as an hotel. Having so found, he allowed the appeal under both
heads. He discharged the condition and deleted the words to which the appellant
objected. He thus effectively granted permission unrestricted in point of time
for the retention of the extension and its use as a reception area for the
hotel.
In that case
there was no enforcement notice, for the council was apparently content that
the property should be used as a hostel, at all events until 1986.
In 1985,
however, the council had apparently changed its position. The enforcement
notice alleged that there had been a breach of planning control by change of
use to use as a hostel for homeless families. This too, in my view, gives rise
to issue estoppel and questions the validity of the 1982 decision. The
appellant had an established use certificate for use as an hotel and planning
permission to retain the extension as a reception area for that hotel on the
single ground that the property was then being used as an hotel. It being
common ground that there had been no change of use since 1982, the inspector
was bound in law to quash the enforcement notice.
With regard to
the remaining properties, no issue estoppel is alleged to arise. However, since
it was not suggested that there was any difference between the uses of any of
the properties, it was submitted that all the decisions should be referred
back. There is, in my view, some merit in those submissions for, had the
inspector realised that he was bound to accept hotel use and quash the notices
in respect of nos 11, 13, 15 and 25, it is, as it seems to me, possible that in
the interests of consistency, he might have adopted the same course with regard
to the other properties.
It is,
however, impossible to hold that in regard to the other properties his
decisions — I use the plural because although embodied in one document, there
were a series of decisions on a series of appeals — were erroneous in point of
law.
I would
therefore allow the appeal against the decisions with regard to nos 11, 13, 15
and 25, and remit those cases for rehearing and determination in the light of
the opinion of this court that the inspector was, in the circumstances, obliged
to allow the appeals to the Secretary of State and quash the enforcement
notices.
In conclusion
I should perhaps mention the case of Rockhold Ltd v Secretary of
State for the Environment [1986] JPL 130. In that case three successive
planning applications in respect of the same development were rejected by three
different inspectors. Two concluded that the development would not be
prominent. The third considered that it would be damaging to the visual beauty
of the area. That case does not appear to me to afford any assistance at all to
the respondents in this case. All three inspectors dismissed the appeals, albeit
they differed in one of their reasons.
In the present
case the second inspector differed from the first on the very point that formed
the only ground upon which the earlier appeals were decided. If, at the opening
of the 1985 appeals, the inspector had asked the council’s representative the
question: ‘Do you contend there has been any change of use since 1982?’ he would have received the answer ‘No’. If he
had then asked the question: ‘Do you then contend that the inspector was wrong
in concluding in 1982 that the properties were being used as hotels and not as
hostels?’ he would have received the
answer ‘Yes’. If he had asked finally: ‘On what grounds?’ he would have
received the answer: ‘Because we now have better legal arguments and better
evidence.’ That is very different from
the Rockhold case. Not only is it different, it demonstrates that the
council was seeking to question the validity of the decision otherwise than in
the only way in which Parliament has permitted, namely, by challenge on a point
of law under section 246.
CAULFIELD J:
I, too, would allow the appeal against the decision
with regard to nos 11, 13, 15 and 25, and would remit these cases for rehearing
and determination.
My Lords have
rightly emphasised that it was, and is, common ground that there had been no
change of use since 1982, and I think it is clear that the 1985 inspector ruled
as he did because he thought the 1982 decision was wrong.
I agree, for
the reasons advanced by Ralph Gibson LJ and Parker LJ that issue estoppel is
available on a section 88 appeal, and on the concession that there had been no
change of use since the 1982 decision, the 1985 inspector erred in law.
The appeals
were allowed in part, with costs in the Court of Appeal against both parties;
no order for costs in the court below. Leave to appeal to the House of Lords
was granted.
