Enforcement notices — Appeals — Decision of Secretary of State — Further enforcement notices — Whether Secretary of State bound by estoppel per rem judicatam or issue estoppel
Both these appeals raise the question of whether a decision of the Secretary of State for the Environment allowing an appeal against an enforcement notice on one of the grounds in paras (b) to (e) of section 88(2) of the Town and Country Planning Act 1971 is capable of giving rise to an estoppel per rem judicatam or to an issue estoppel.
Thrasyvoulou v Secretary of State for the Environment
A number of enforcement notices alleging breaches of planning control were issued in respect of the respondent’s premises in 1981; on appeal the inspector decided that no material change of use had taken place. Following a second group of enforcement notices issued in 1985, the Court of Appeal held ([1988] 2 PLR 37) that the concept of issue estoppel applies to the working of the appeal procedure and that the inspector hearing the appeals against the second group of enforcement notices erred in deciding that he was not bound by the decisions reached by an earlier inspector in relation to the 1981 notices.
Oliver v Secretary of State for the Environment
An enforcement notice was issued in 1981 in relation to a material change of use which the inspector accepted was an established use that had commenced before 1964. A further notice was issued in 1986 describing the uses differently and in respect of which another inspector found that there had been a change of use since 1963. For these proceedings the appellants in this appeal, Havering London Borough Council, accepted that there had been no material change in the character of the use between the two notices. In challenging the decision of the Secretary of State, who had dismissed their appeal, the respondents successfully contended that the deputy High Court judge, Mr Malcolm Spence QC, was bound by the decision in the Thrasyvoulou case.
Held Both appeals were dismissed.
There is an important distinction between an issue raised by an appeal against an enforcement notice on ground (a) of section 88(2), where the question is whether planning permission should be granted, and the issues raised by grounds (b) to (e). In the former case the public have a right to attend an inquiry and be heard as objectors, whereas in the latter case they have no locus standi as objectors, although they may be heard as witnesses of fact. Parliament must have intended the determination of any issue arising under grounds (b) to (e) of section 88(2) in favour of an appellant to be conclusive. Any such determination gives rise to an estoppel per rem judicatam. Such “cause of action” estoppel will arise whenever the determination of the ground decided in favour of the appellant on an appeal against one enforcement notice can be relied on in an appeal against a second enforcement notice which is in the same terms and is directed against the same alleged development as the first, the position in the Thrasyvoulou appeal. In the Oliver appeal the second inspector was bound by the decision of the first inspector by way of issue estoppel, as the first had decided that a use of the land was immune from enforcement proceedings.
In the first appeal, John Laws and Duncan Ouseley (instructed by the Treasury Solicitor) appeared for the appellant, the Secretary of State for the Environment; and Michael Rich QC and Joseph Harper (instructed by Frank E C Forney & Partners) appeared for the respondents.
In the second appeal, William Glover QC and Gregory Stone (instructed by the solicitor to Havering London Borough Council) appeared for the appellants; Jeremy Sullivan QC and Brian Ash (instructed by Penningtons Ward Bowie) appeared for the first respondents; and John Laws and Duncan Ouseley (instructed by the Treasury Solicitor) appeared for the second respondent, the Secretary of State for the Environment.
