Town and country planning — Enforcement notices — Town and Country Planning Act 1971 as amended by Local Government and Planning (Amendment) Act 1981 — Estoppel per rem judicatam and issue estoppel — Main question in both appeals as to whether determinations by the Secretary of State under section 88(2), paras (b) to (e), of the 1971 Act as amended were final and conclusive or whether it was open to the local planning authority in fresh enforcement proceedings to determine these matters in a contrary sense — Decisions involved the application of these estoppel doctrines to planning control — Distinction by Diplock LJ in Thoday v Thoday between ’cause of action estoppel’ and ‘issue estoppel’ — Appeals by Secretary of State and local planning authority dismissed — Although the underlying principle was the same in both appeals, there were differences in the circumstances and in the way in which the estoppel doctrines were applied by the House — The cases are therefore dealt with separately below
State for the Environment
service of enforcement notices in respect of certain properties it had been
determined in an appeal in 1982 that the use of the properties was as hotels, a
use which had been carried on since 1960 — Fresh enforcement notices were
issued in 1985 alleging a material change of use to that of hostels — An
inspector on appeal decided that the use was as hostels and his decision was
upheld by McCowan J, who rejected a plea of res judicata — The Court of Appeal,
however, held that, as there had been no change of use since 1982, the
inspector was in error in allowing the planning authority to reopen the issue
decided against them in 1982 — McCowan J was in error in holding that the
principle of estoppel did not apply — The Secretary of State appealed
Lords rejected submissions by the appellant that a statutory body cannot be
fettered by estoppel; that there was no justification for introducing the
doctrine of estoppel from private law litigation into the self-sufficient
planning code of the 1971 Act; and that the correct remedy for the abuse of
enforcement proceedings was judicial review — There was, however, a distinction
between the simple issue in section 88(2)(a) of the 1971 Act as to whether
planning permission should be granted and the issues in section 88(2)(b) to (e)
involving decisions as to facts and legal rights — After describing the
statutory history preceding the enactment of section 88 Lord Bridge of Harwich
pointed out that it would be strange if the jurisdiction now exercised by the
Secretary of State on the grounds set out in section 88(2)(b) to (e) was
intended to deprive a landowner of his former opportunity to obtain a
conclusive declaration of his immunity from further attack by enforcement
notice — An analysis of section 88 and other provisions in the 1971 Act as
amended supported the view that determinations on grounds set out in paras (b)
to (e) were intended to be conclusive and did give rise to estoppel per rem
judicatam — The Secretary of State’s appeal was dismissed
State for the Environment
the purposes of this second appeal that the distinction drawn by Diplock LJ in
Thoday v Thoday between ’cause of action estoppel’ and ‘issue estoppel’
became relevant — The Thrasyvoulou case illustrated the cause of action
estoppel, where the determination that the use was as a hotel was conclusive
against the later assertion that the use was as a hostel — In more complex
cases, however, the establishment of a cause of action may require proof that
several conditions have been fulfilled and there may be as many issues as
conditions — The determination of any of these issues may give rise to an
estoppel and a question in this second appeal was whether an issue estoppel,
strictly so called, arose from a successful appeal against an earlier
enforcement notice — Did that earlier determination defeat the enforcement
notice which was the subject of the present proceedings?
case the earlier enforcement proceedings in 1982 had resulted in a
determination in favour of the owners that a site had an established use for
storage purposes commenced before 1964 — In July 1986 an enforcement notice
alleged that a material change of use of the site had taken place — The notice
described this use as ‘for the purposes of a business of merchants, importers,
repackers and distributors of goods’, but in fact there had been no material
change of use between 1982 and 1986 — The inspector in 1986, however, dismissed
the owners’ appeal — On their appeal to the High Court the deputy judge held
that he was bound to follow the Court of Appeal’s decision in the Thrasyvoulou
case and that the doctrine of issue estoppel should be applied to defeat the
new enforcement notice — The judge granted the necessary certificate for a
‘leap frog’ appeal to the House of Lords
held that the first inspector’s decision involved by necessary implication the
finding that the use in fact made of the site at the date of the first
enforcement notice was an established use, however described — As it was
conceded that there had been no change in the use between the two notices, it
followed that the local planning authority were now estopped from making an
assertion which contradicted the conclusion reached by the first inspector that
no breach of planning
The following
cases are referred to in this report.
Maritime
Electric Co Ltd v General Dairies Ltd [1937]
AC 610; [1937] 1 All ER 748, PC
Pyx
Granite Co Ltd v Ministry of Housing and Local
Government [1960] AC 260; [1959] 3 WLR 346; [1959] 3 All ER 1; (1959) 58
LGR 1; 10 P&CR 319, HL
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, DC
Square
Meals Frozen Foods Ltd v Dunstable Corporation
[1974] 1 WLR 59; [1974] 1 All ER 441; (1973) 26 P&CR 560, CA
Thoday v Thoday [1964] P 181; [1964] 2 WLR 371; [1964] 1 All ER
341, CA
Wakefield
Corporation v Cooke [1904] AC 31, [1900-3]
All ER Rep 791, HL
Young v Secretary of State for the Environment [1983] 2 AC 662;
[1983] 3 WLR 382; [1983] 2 All ER 1105; (1983) 81 LGR 779; 47 P&CR 165;
[1984] EGD 1030; 269 EG 219, [1984] 1 EGLR 166, HL
These two
appeals to the House of Lords resulted from the service of enforcement notices
by two local planning authorities, the Hackney London Borough Council in the Thrasyvoulou
case and the Havering London Borough Council in the Oliver case. The
appellant in the first case was the Secretary of State and in the second case
the local planning authority. The earlier proceedings in the Thrasyvoulou
case were reported at [1987] 2 EGLR 195 and [1988] 1 EGLR 192.
In the Thrasyvoulou
case John Laws and Duncan Ouseley (instructed by the Treasury Solicitor) appeared
on behalf of the appellant, the Secretary of State for the Environment; Michael
Rich QC and Joseph Harper (instructed by Frank E C Forney & Partners)
represented the respondents. In the Oliver case William Glover QC and
Gregory Stone (instructed by the solicitor to Havering London Borough Council)
appeared on behalf of the appellant council; Jeremy Sullivan QC and Brian Ash
(instructed by Penningtons Ward Bowie) represented the first respondents, Mr
and Mrs Oliver and Olivers of Hornchurch Ltd; John Laws and Duncan Ouseley
(instructed by the Treasury Solicitor) represented the second respondent, the
Secretary of State for the Environment.
In his speech,
LORD BRIDGE OF HARWICH said: These two appeals raise the question
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, as
amended by the Local Government and Planning (Amendment) Act 1981, is capable
of giving rise to an estoppel per rem judicatam or to an issue estoppel.
The first
appeal arises from the service by the Hackney London Borough Council as local
planning authority on the respondent, Aristophanes Thrasyvoulou, in February
1985 of enforcement notices alleging in respect of each of four properties, nos
11, 13, 15 and 25 Wilberforce Road, London N4, a breach of planning control by
making a material change of use to use as a hostel for homeless families
without the grant of planning permission required in that behalf. Mr
Thrasyvoulou appealed to the Secretary of State in each case on the ground, inter
alia, that the breach of planning control alleged in the notice had not
taken place. The appeals were dismissed by the inspector appointed by the
Secretary of State to determine them. An appeal against his decision to the
High Court under section 246 of the Act of 1971 was dismissed by McCowan J. The
Court of Appeal (Parker and Ralph Gibson LJJ and Caulfield J) allowed Mr
Thrasyvoulou’s appeal and remitted the cases of the four enforcement notices
for rehearing and determination in the light of the opinion of the court that
the inspector was in the circumstances obliged to allow the appeals to the
Secretary of State and quash the enforcement notices. The Secretary of State
now appeals to your Lordships’ House by leave of the Court of Appeal.
The facts in
this case relating to nos 13 and 15 Wilberforce Road are straightforward. The
local planning authority had previously served two enforcement notices in
respect of each of these properties in October 1981 which alleged alternatively
a breach of planning control by making a material change of use to use as a
hotel or to use as a hostel. On appeal to the Secretary of State the inspector
appointed to determine the appeal found that the use was correctly
characterised as hotel use, not as hostel use, and that the hotel use had been
carried on since 1960. He therefore quashed the hostel notices on the ground
that the breach of planning control alleged in the notice had not taken place
and the hotel notices on the ground that the breach of planning control alleged
in the hotel notices had occurred before 1964. At the hearing of the appeals
against the 1985 notices it was common ground that there had been no change in
the use of the properties since service of the 1981 notices. The Court of
Appeal held that in these circumstances an issue estoppel arose which prevented
the council on the appeals against the 1985 notices from contending that the
use of either property was as a hostel (which was assumed to be materially
different from use as a hotel), and that the inspector had erred in failing to
give effect to this estoppel and in making a finding on the evidence and
argument before him that the use was as a hostel, which contradicted the
finding made by the inspector who determined the appeals against the 1981
notices that the use was as a hotel. The facts relating to nos 11 and 25
Wilberforce Road are more complex but, since it is common ground that if the
doctrine of res judicata and issue estoppel applies to determinations by
the Secretary of State of appeals under section 88 the Court of Appeal were
correct in holding that an issue estoppel arose sufficient to defeat the 1985
enforcement notices in relation to these properties also, it is unnecessary for
me to go into them.
The second
appeal arises from the service by the London Borough of Havering as local
planning authority on the respondents, Mr and Mrs Oliver and Olivers of
Hornchurch Ltd (‘the Olivers’) of an enforcement notice in January 1986
alleging a breach of planning control by making a material change of use of
land at the rear of nos 13 to 19 The Avenue, Hornchurch, to the use described
in the notice without the grant of planning permission required in that behalf.
The Olivers appealed against the notice to the Secretary of State on the
ground, inter alia, that the breach of planning control occurred before
1964. The inspector appointed to determine the appeal dismissed it. The Olivers
appealed to the High Court under section 246. The appeal was heard by Mr
Malcolm Spence QC, sitting as a deputy High Court judge, who rightly held that
he was bound to follow the decision of the Court of Appeal in the case of Thrasyvoulou
as to the application of the doctrine of issue estoppel, and concluded in the
light of the planning history that an estoppel arose which was fatal to the
1986 enforcement notice. He ordered that the matter be remitted to the
Secretary of State with the opinion of the court for rehearing and
determination, but he granted the necessary certificate under section 12(1) of
the Administration of Justice Act 1969 to enable an appeal against his decision
to be brought direct to your Lordships’ House and leave to appeal was granted
by the House.
In this case
it is the local planning authority who appeal. They join with the Secretary of
State in contending that the doctrine of res judicata and issue estoppel
has no application in law to the determination by the Secretary of State of an
appeal against an enforcement notice under section 88, but they contend in the
alternative that if the doctrine applies, no case giving rise to a relevant
issue estoppel arises on the facts. This subsidiary issue depends on the
details of the relevant planning history which it will be convenient to examine
after considering the issue of principle which is common to both appeals.
Before turning
to the arguments on the issue of principle it is appropriate to refer briefly
to the salient features embodied in the statutory code for the enforcement of
planning control in the Act of 1971, as amended by the Act of 1981. Under Part
III of the Act planning permission is required for development which consists
in the carrying out of building, engineering, mining or other operations in,
on, over or under land, or the making of any material change in the use of any
buildings or other land. If development is carried out without the requisite
planning permission or if any conditions or limitations, subject to which
planning permission was granted, have not been complied with there is a breach
of planning control: section 87(2). Under section 87(1) the local planning
authority may, where it appears to them that there has been a breach of
planning control, serve an enforcement notice requiring the breach to be
remedied. The notice is required to specify the matters alleged to constitute a
breach of planning control. Appeal lies against an enforcement notice to the
Secretary of State under section 88 on any of the grounds specified in section
88(2). For brevity I omit consideration of breaches consisting of failure to
comply with conditions or limitations and consider only the grounds appropriate
where the enforcement notice alleges development without the requisite planning
permission. Ground (a) is that planning permission ought to be granted
for the development to which the notice relates. Ground (b) is that the
matters alleged in
that the breach of planning control alleged in the notice has not taken place.
Ground (d) applies to notices alleging development by carrying out
building etc operations which can only be enforced against within four years of
the development taking place. Ground (d) is therefore established if the
breach of planning control occurred more than four years before the issue of
the enforcement notice. Ground (e) applies to development consisting of
making a material change of use of land which can be enforced against only if
the change of use was made since 1963. Ground (e) is therefore
established if the change of use occurred before the beginning of 1964. The
remaining grounds (f) to (h) relate to subsidiary issues which
may arise as to the service of the enforcement notice, the steps required to be
taken to remedy the breach of planning control alleged and the time for taking
those steps, and these grounds have no relevance for present purposes.
An issue on
ground (a) arises in every appeal against an enforcement notice, since
by section 88B(3) there is deemed to be an application for planning permission
for the development to which the notice relates. In determining whether to
allow an appeal on that ground the Secretary of State will decide as a matter
of policy and in the exercise of discretion whether planning permission should
be granted and in relation to ground (a) no question of legal right
arises. By contrast, the question whether any of the grounds (b) to (e)
on which the appellant relies have been established will be answered by applying
the relevant rules of planning law to the facts found, and the answer will
determine in each case an important matter of legal right. This may be simply
illustrated by examples. Thus, if an issue is raised on appeal against a notice
on ground (b) as to whether or not a building operation to which the
notice relates was within the terms of planning permission granted either upon
an express application or by the terms of a development order, a decision of
that issue to allow the appeal on ground (b) will determine the status
of the building in question as having been lawfully erected. If an issue is
raised on appeal against a notice on ground (c) as to whether a change
from one use to another to which the notice relates was a material change, a
decision to allow an appeal on ground (c) will again determine the
status of the existing use of the land as lawful. So also under grounds (d)
and (e) a decision that a building operation was carried out more than
four years before the issue of the enforcement notice or that a use of land was
commenced before 1964 will have the like consequence in determining the status
of the building or the use respectively as immune to enforcement proceedings.
The main issue in the appeals is simply whether these determinations are final
and conclusive in their effect, as the respondents contend, or whether it is
open to the local planning authority in fresh enforcement proceedings to ask
the Secretary of State to determine these issues in a contrary sense, whether
in the light of new evidence or otherwise.
An enforcement
notice does not take effect until the final determination of the proceedings on
any appeal against it, including proceedings on appeal to the High Court under
section 246 of the Act. Once a notice has taken effect following the final
determination of the appeal there is no doubt as to its final and conclusive
effect in relation to all issues of right determined by the appeal. By section
243(1)(a) the validity of an enforcement notice may not be questioned in
any proceedings whatsoever on any of the grounds on which an appeal under
section 88 may be brought. If the steps required to be taken by the notice are
not taken, this attracts penal sanctions and after those steps have been taken
the notice remains effective to render unlawful and to attach penal sanctions
to any resumption of a use discontinued or reinstatement of a building
demolished in compliance with the notice.
The arguments
advanced by Mr Laws, for the Secretary of State, and Mr Glover QC, for the London
Borough of Havering, in support of the proposition that no estoppel per rem
judicatam or issue estoppel can arise from the determination of an appeal
against an enforcement notice whereby the notice is quashed on any of the
grounds set out in section 88(2) may, I hope, be fairly summarised in terms of
three broad submissions. The first submission is that, in the performance of
its statutory duties or in the exercise of its statutory powers, a statutory
body cannot be fettered by any estoppel whatsoever.
The second
submission is that the Act of 1971 provides a complete and self-contained
statutory code governing the enforcement of planning control and that there is
no room, as a matter of construction of that code, for the introduction of
rules or doctrines applicable in the field of private law to litigation between
citizens. The third submission is that the remedy available for the protection
of the owner or occupier of land against abuse of enforcement proceedings by
the service of repeated enforcement notices directed against the same
development must be sought by application for judicial review of the decision
of the local planning authority to issue the enforcement notice of which
complaint is made, not by appeal to the Secretary of State against it.
It is well
established that a statutory body cannot by contract fetter its own freedom to
perform its statutory duties or exercise its statutory powers, and by parity of
reasoning it has been held that no such fetter can arise from an estoppel by
representation: see Maritime Electric Co Ltd v General Dairies Ltd
[1937] AC 610 and Southend-on-Sea Corporation v Hodgson (Wickford)
Ltd [1962] 1 QB 416. But the rationale which underlies the doctrine of res
judicata is so different from that which underlies the doctrine of estoppel
by representation that I do not think these authorities have any relevance for
present purposes.
The doctrine
of res judicata rests on the twin principles which cannot be better
expressed than in terms of the two Latin maxims ‘interest reipublicae ut sit
finis litium’ and ‘nemo debet bis vexari pro una et eadem causa’. These
principles are of such fundamental importance that they cannot be confined in
their application to litigation in the private law field. They certainly have
their place in criminal law. In principle they must apply equally to
adjudications in the field of public law. In relation to adjudications subject
to a comprehensive self-contained statutory code, the presumption, in my
opinion, must be that where the statute had created a specific jurisdiction for
the determination of any issue which establishes the existence of a legal
right, the principle of res judicata applies to give finality to that
determination unless an intention to exclude that principle can properly be
inferred as a matter of construction of the relevant statutory provisions.
This approach
is, I believe, fully supported by the decision of this House in Wakefield
Corporation v Cooke [1904] AC 31. In that case a local Act gave the
local authority power to carry out private street works in a private street and
to recover the expenses from the frontagers, but the frontagers had the right
to object to the proposed works on the ground, inter alia, that the
street was a highway repairable by the inhabitants at large. The relevant
sections of the local Act corresponded to sections 6, 7 and 8 of the Private
Street Works Act 1892. Under those provisions, objections to proposed works
were to be heard and determined by justices. In 1898 the justices held on
objection by some frontagers to certain works proposed to be carried out that
the street in question was highway repairable by the inhabitants at large. In
1901 the local authority made proposals to carry out works in the same street
and other frontagers objected. The justices upheld the objection on the ground
that the matter was res judicata by reason of the earlier decision and
their view was upheld by your Lordships’ House. The Earl of Halsbury LC said,
at pp 35-36:
So that,
instead of being, as it is under the Public Health Act, something removed from
the jurisdiction of the justices . . . in this Act the very question whether or
not a particular road is or is not a highway repairable by the parish is
remitted to that tribunal, and remitted to that tribunal for the purpose of
determination. My Lords, for my part, I am wholly unable to see anything more
in the nature of a judgment in rem than that. . . . If there is no appeal, it
is the final adjudication and determination. If there is an appeal, I presume
from what has happened the question was in this case determined adversely to
those who are at present the appellants against the judgment of the Court of
Appeal. In any case, it appears to me that this question has been finally and
absolutely determined.
Lord Robertson
said, at pp 38-39:
The question
is truly whether the local Act has given the justices jurisdiction to determine
whether the street in dispute is a highway repairable by the inhabitants, as a
substantive issue, in rem, or merely as a medium concludendi of the liability
or non-liability of the objectors. If the former be the true view, then a
decision on that issue, properly raised, is good against all concerned. There
is nothing contrary to principle and much convenience in a local tribunal being
authorized to adjudicate on a local matter with full notice to all concerned;
and the question is merely whether in this instance that has been provided by
the Legislature. On the whole, I have come to think that it has, and that the
appeal therefore fails.
Lord Lindley
said, at p 39:
It appears to
me that the question turns on the fact which occurs in this case . . . namely,
the fact that the question raised for the purpose of being decided in
accordance with the Act and the question which was decided in accordance
with the Act was whether Sludge Lane was a street repairable by the inhabitants
at large or not.
Much of the
argument against allowing a plea of res judicata or issue estoppel
founded on the determination of an appeal against an enforcement notice under
section 88(2) of the Act rested on the proposition that such a determination is
characterised as a ‘planning decision’ and emphasis was placed on the rights of
members of the public to be heard. Mr Laws submitted that no distinction could
be drawn between a decision on ground (a) of section 88(2) to grant or
withhold planning permission for the development the subject of an enforcement
notice, and a decision of any issue arising under grounds (b) to (e).
If an estoppel arises in the one case, he submits, it must equally arise in the
other. I cannot accept this submission. A decision to grant planning permission
creates, of course, the rights which such a grant confers. But a decision to
withhold planning permission resolves no issue of legal right whatever. It is
no more than a decision that in existing circumstances and in the light of
existing planning policies the development in question is not one which it
would be appropriate to permit. Consequently, in my view, such a decision
cannot give rise to an estoppel per rem judicatam. I also think that
there is a significant distinction between the issue raised by an appeal under
ground (a) and the issues raised by any of grounds (b) to (e)
in that members of the public have the right to attend any inquiry and to be
heard as objectors against the grant of planning permission, but can have no locus
standi as objectors, although they may be heard as witnesses of fact, in
relation to the issues raised on grounds (b) to (e).
The
distinction between the issue as to whether planning permission should be
granted for development the subject of an enforcement notice and any issue
arising as to the legal status of the alleged development which is the subject
matter of the notice was more immediately apparent in the original statute
which introduced the modern planning code, the Town and Country Planning Act
1947 because under that Act the issues fell for determination by different
tribunals. Section 23(3) proviso (a) of the Act of 1947 enacted that if,
following the service of an enforcement notice, application was made for
permission for the retention on the land of any building or works, or for the
continuance of any use of the land, to which the enforcement notice related,
the notice should not take effect until that application was finally
determined. In practice, this invariably led to an appeal to the minister. But
section 23(4) enabled any person aggrieved by an enforcement notice to appeal
against it to a court of summary jurisdiction and provided that on any such
appeal the court:
(a) If satisfied that permission was granted
under this Part of this Act for the development to which the notice relates, or
that no such permission was required in respect thereof . . . shall quash the
notice to which the appeal relates.
Section 23(5)
gave a further appeal from the decision of the court of summary jurisdiction to
quarter sessions. The language of section 23(4), although not in such wide
terms as the language of section 88(2) grounds (b) to (e),
nevertheless gave the court jurisdiction to determine the same essential issues
of legal right which arise in relation to a building required to be demolished
or a use required to be discontinued by an enforcement notice, viz was the
building or use permitted or alternatively established so as to be beyond the
reach of enforcement procedure by reason of the lapse of time (four years in
all cases under the Act of 1947) since the development took place.
Alongside the
statutory procedures it was also possible to bring actions in the High Court
for declarations to determine the status in planning law of proposed
developments or of existing buildings or land uses. In Pyx Granite Co Ltd
v Ministry of Housing and Local Government [1960] AC 260 the House
rejected the proposition that the availability of a specific statutory
jurisdiction under the Act of 1947 for the determination of an issue as to the
legality of a proposed development had the effect of depriving the High Court
of jurisdiction to determine the self-same issue in proceedings claiming a
declaration. The particular issue resolved by Pyx Granite related to the
statutory procedure under section 17 of the Act of 1947 for the determination
of questions as to whether any proposed operations on land or change in the use
of land would constitute or involve development and, if so, would require
planning permission having regard to the provisions of the development order,
and it was the availability of the statutory procedure which the House held not
to exclude the High Court’s parallel declaratory jurisdiction. But it is
implicit in the rationale of the decision that the High Court equally had
jurisdiction to entertain proceedings for declarations as to the legality or
immunity from enforcement procedure of any existing building or use of land
raising parallel issues to those which could be raised, following service of an
enforcement notice, by appeal against the notice to justices under section
23(4) of the Act of 1947. A declaration obtained in such proceedings must
clearly have been effective to establish the legality or immunity from
enforcement proceedings of the building or use of land in question as res
judicata.
The law as
explained in the two foregoing paragraphs continued in force until 1960. But
the multiplicity of jurisdictions proved a great inconvenience in practice, and
Parliament enacted provisions to abolish it by section 33 of the Caravan Sites
and Control of Development Act 1960. That section is the antecedent of section
88 of the consolidating Act of 1971, combining the dichotomy of jurisdictions
under section 23(3) and (4) of the Act of 1947 in a unified jurisdiction by way
of appeal to the minister against an enforcement notice. It also contained, in
subsection (8), the antecedent of section 243 of the Act of 1971, providing
that the validity of an enforcement notice shall not be questioned except by
way of such an appeal.
The effect of
this latter provision was put to the test in Square Meals Frozen Foods Ltd
v Dunstable Corporation [1974] 1 WLR 59. In that case the owners of a
warehouse had planning permission to use it as a ‘wholesale warehouse or
repository for any purpose’. They wished to use it for selling packages of
frozen food to the public on a cash and carry basis. The local planning
authority warned them that such a use would not be use as a warehouse and would
involve enforcement proceedings. The owners sought a declaration in the High
Court that the proposed use did not require planning permission, being within
the ambit of the permission already granted. Shortly after instituting the
proceedings the owners commenced the use of the premises for the cash and carry
business. The local planning authority thereupon served an enforcement notice
and applied to the court to stay the High Court proceedings seeking a declaration.
The Court of Appeal held, affirming the stay granted by the judge, that section
243(1)(a) operated as a bar not only to proceedings started after the
service of an enforcement notice but also to proceedings started before the
service of such notice in which the validity of the notice would inevitably be
questioned.
In the light
of this decision it can be seen that the effect of the changes made by section
33 of the Act of 1960 was to substitute for the jurisdiction under section
23(4) of the Act of 1947 and for the jurisdiction of the High Court in
proceedings for a declaration directed to the determination of legal rights in
existing buildings or uses of land a new jurisdiction conferred exclusively on
the minister. I am of the opinion that before this change was effected, a
determination by justices under section 23(4) of the Act of 1947 that an
existing building or use of land was either permitted or beyond the reach of
enforcement proceedings would have been as effective as a High Court
declaration to give rise to an estoppel per rem judicatam. But whether
this was so or not, the most formidable difficulty which the arguments of Mr
Glover and Mr Laws must surmount, if they are to succeed, is to persuade the
House that the substituted jurisdiction now exercised by the Secretary of State
in relation to grounds (b) to (e) of section 88(2) of the Act of
1971 is intended to be of such limited effect that it deprives the owner or
occupier of land of the opportunity which he formerly enjoyed to have it
conclusively determined once and for all, by action for a declaration if not by
application to justices, that his building or use of land is for one reason or
another immune from further attack by enforcement notice.
Certain other
provisions of the Act of 1971 are relied on by the appellants. Section 88B(1)(c)
provides that:
On the
determination of an appeal under section 88 of this Act, the Secretary of State
may . . . determine any purpose for which the land may, in the circumstances
obtaining at the time of the determination, be lawfully used having regard to
any past use of it and to any planning permission relating to it.
Subsection
(3)(b) provides that any such determination shall be final. Section 94
provides a procedure whereby an owner or occupier of land may apply for and
obtain from the local planning authority in the first instance, or if refused
by the local planning authority from the Secretary of State under section 95, a
certificate referred to as an ‘established use certificate’ that his existing
use of land was begun before the beginning of 1964 or in certain other
circumstances such as to place it beyond attack by enforcement notice. Section
94(7) provides:
An
established use certificate shall, as respects any matters stated therein, be
conclusive for the purposes of an appeal to the Secretary of State against an
enforcement notice served in respect of any land to which the certificate
relates, but only where the notice is served after the date of the application
on which the certificate was granted.
The submission
made is that the finality of a determination under section 88B(1)(c), which
it is conceded will be effective to defeat an enforcement notice directed
against a use of land resumed in reliance on the determination, and the
conclusive effect of an established use certificate show that when Parliament
intended a determination, in this statutory context, to be final and conclusive
of any issue determined, it made express provision to that effect and that the
absence of any such express provision as to the effect of a determination by
the Secretary of State allowing an appeal on any of the grounds (b) to (e)
under section 88(2) demonstrates that Parliament did not intend those
determinations to be conclusive.
I do not
accept this submission. It seems to me, on the contrary, that these provisions,
on a proper understanding of the role they play in the context of the planning
enforcement machinery, do not detract from but lend support to the conclusion
that 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. The purpose of section 88B(1)(c) can be understood only
in the light of section 23(9) of the Act of 1971, which provides:
Where an
enforcement notice has been served in respect of any development of land,
planning permission is not required for the use of that land for the purpose
for which (in accordance with the provisions of this Part of this Act) it could
lawfully have been used if that development had not been carried out.
The effect of
this subsection is that when an owner or occupier of land discontinues a use of
land in compliance with the requirements of an enforcement notice, it is not
enough to entitle him to resume the immediately preceding use to show that,
before the unauthorised change, that use was immune to enforcement procedure,
having been begun before 1964; he may only resume a previous use which was
itself begun lawfully, ie without any breach of planning control: Young
v Secretary of State for the Environment [1983] 2 AC 662. In these
circumstances, it is obviously desirable that an owner or occupier of land who
is to be required by an enforcement notice which the Secretary of State upholds
to discontinue an existing use of land should be entitled to ascertain what, if
any, previous use of the land he may safely resume without being subject to
enforcement proceedings directed against that use. But this would not be an
issue arising for determination in the appeal against the notice unless express
provision authorising its determination were made, as it is, by section 88B(1)(c).
It would be futile to provide for such a determination unless it was intended
to protect the owner or occupier of land from enforcement proceedings when he
resumed the use determined to be lawful; so the concession in this regard is
rightly made. But it would surely be a bizarre result that a decision by the
Secretary of State dismissing an appeal against an enforcement notice requiring
discontinuance of the existing use of land and determining that a previous use
might lawfully be resumed should effectively protect that use against future
enforcement proceedings but that a decision allowing the appeal on the ground
that the existing use was itself lawful should not.
Very similar
reasoning applies to the provision in section 94(7) for the conclusive effect
of an established use certificate. A certificate may be granted on the
application of the owner or occupier of land by the local planning authority
without any dispute. If it is so granted, it does not result from the
determination of any contested issue and, in the absence of express provision,
there would again be no basis for attributing to it conclusive effect. The
effect of the express provision is this. If the owner or occupier of land
anticipates that his existing use may be subject to enforcement proceedings and
wishes to have the matter settled in advance, he may apply for an established
use certificate before any enforcement notice is served and if the local
planning authority do not grant the certificate, he may eventually succeed on
appeal under section 95 and obtain a certificate with conclusive effect. But if
the local planning authority forestall him by the service of an enforcement
notice requiring discontinuance of the existing use before his application for
an established use certificate is made, it will then be too late to apply for a
certificate under section 94. Instead he will appeal against the notice on
ground (e) under section 88(2) and the Secretary of State on that appeal
will have to determine precisely the same issue as that which he would have
otherwise determined on an appeal under section 95. It seems to me again a
bizarre result which Parliament cannot have contemplated or intended that
determination of the issue in the appellant’s favour on the appeal under
section 95 should be conclusive but that the same determination under section
88 should not.
All these
considerations bring me to the conclusion that the determination in favour of
the appellant of an appeal against an enforcement notice on any of the grounds
(b) to (e) under section 88(2) does give rise to an estoppel per
rem judicatam. In these circumstances I do not need to examine the argument
that an alternative protection for owners and occupiers of land against
harassment by the service of repeated enforcement notices is available by way
of judicial review of decisions by the local planning authority to issue such
notices.
I would
accordingly dismiss the Secretary of State’s appeal in the case of Thrasyvoulou.
So far in this
opinion I have used the expressions ‘estoppel per rem judicatam‘ and
‘issue estoppel’ indifferently. But before turning to the subsidiary issue
which arises in the second appeal it is necessary to distinguish between them
by reference to the careful terminology used by Diplock LJ in Thoday v Thoday
[1964] P 181. He said at pp 197-198:
The
particular type of estoppel relied upon by the husband is estoppel per rem
judicatam. This is a generic term which in modern law includes two species.
The first species, which I will call ’cause of action estoppel’, is that which
prevents a party to an action from asserting or denying, as against the other
party, the existence of a particular cause of action, the non-existence or
existence of which has been determined by a court of competent jurisdiction in
previous litigation between the same parties. If the cause of action was
determined to exist, ie judgment was given upon it, it is said to be merged in
the judgment, or, for those who prefer Latin, transit in rem judicatam.
If it was determined not to exist, the unsuccessful plaintiff can no longer
assert that it does; he is estopped per rem judicatam. This is simply an
application of the rule of public policy expressed in the Latin maxim ‘Nemo
debet bis vexari pro una et eadem causa’. In this application of the maxim
‘causa’ bears its literal Latin meaning. The second species, which I will call
‘issue estoppel’, is an extension of the same rule of public policy. 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.
Adopting this
terminology and classification, and applying it by analogy to the issues which
arise on an appeal against an enforcement notice on any of the grounds (b)
to (e) of section 88(2), I think the analogue of a ’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. That is the position
in the case of Thrasyvoulou, for example, in relation to the 1985
notices alleging change of use to use as a hostel. On appeal against the
earlier notices it had been determined that the use of the premises was not use
as a hostel and, there being no subsequent change of use alleged, that
determination was conclusive in the second appeal. But the subordinate issue in
the Oliver appeal is whether an issue estoppel, strictly so called,
arose from a successful appeal against an earlier enforcement notice which was
effective to defeat the enforcement notice which is the subject of the present
proceedings.
The land which
is the subject of the enforcement notice now in question is an area of
irregular shape behind nos 13 to 19 The Avenue, Hornchurch, with a narrow strip
between nos 11 and 13 giving access to The Avenue. I shall refer to the land as
a whole as ‘the site.’ In 1982 the local
planning authority served an enforcement notice relating to a structure
standing on the site and alleging a breach of planning control by making a
material change of use of the structure to a use for storage purposes without
the grant of planning permission required in that behalf. The Olivers appealed
against this notice on the ground, inter alia, that the use of the
structure in question was part of the use of the site as a whole as a transport
and
before 1964, and was therefore immune from attack by enforcement notice. The
case for the local planning authority before the inspector appointed to
determine that appeal accepted that certain buildings on the site had an
established use for storage purposes and that the open parts of the site on
which no buildings stood had an established use for what was described as
‘ancillary purposes such as the parking of vehicles’. In effect the local
planning authority were contending that different parts of the site were to be
treated as distinct planning units and asserting that the use for storage of
the structure to which the notice related, which consisted of a trailer
stationed on the site, involved the making of a material change in the use of
that unit. The appellants were asserting that the site as a whole was a single
planning unit with the benefit of an established use and that the use for
storage of the structure in question was part of that established use.
The inspector
resolved the issue in favour of the appellants. He found that at the date of
service of the enforcement notice the trailer had become a fixture on the site.
He continued:
I take the
view that the hard standing, on which the trailer was stationed at the date of
service of the notice, is part of the premises which has an established use for
storage purposes, which use clearly appertains to the whole of the established
use site and not only to the buildings thereon. Whether or not the trailer, at
the date of service of the notice, was a building or structure, its use for
storage purposes does not constitute a breach of planning control, and the
appeal succeeds on that ground.
The
enforcement notice served on January 10 1986 alleged a breach of planning
control by making a material change of the use of the land to a ‘use for the
purposes of a business of merchants, importers, repackers and distributors of
goods including paper products textiles and candles without the grant of
planning permission required in that behalf.’
The inspector who determined the appeal against this notice in favour of
the local planning authority found that there had been a material change in the
character of the site as a whole since 1963 to the use as described in the
notice.
It is
submitted for the local planning authority that no relevant issue estoppel
arises from the first inspector’s decision, because it concerned a part only of
the site and concerned only a use for storage purposes. It seems to me,
however, that the first inspector’s decision involved by necessary implication
the finding that the use in fact being made of the site at the date of service
of the first enforcement notice was an established use, however described. It
is expressly conceded in these proceedings that there had been no material
change in the character of the use between the dates of the two enforcement
notices. Accordingly it follows, in my opinion, that the local planning
authority are now estopped from asserting that there was a material change of
use between 1963 and 1982 which expressly contradicts a finding made by the
first inspector, which was not merely incidental or ancillary to his decision
but was the essential foundation for his conclusion that no breach of planning
control was involved in the use being made of the structure which was the
subject of the first notice. As Mr Malcolm Spence QC said in his judgment:
It does not
make the slightest difference to the question of the application or otherwise
of issue estoppel to a particular case that on the first occasion the local
planning authority described the use in one manner and on the second occasion
they described it in another manner, when it is conceded that the actual use is
the same use on each occasion. This is merely a matter of language. On each
occasion the use was the same, and on each occasion the issue was the same.
I would
accordingly dismiss the second appeal.
LORDS
BRANDON OF OAKBROOK, GRIFFITHS, JAUNCEY OF TULLICHETTLE and LOWRY agreed with the speech of Lord Bridge of Harwich
and with his reasoning. They did not add anything of their own.
Both appeals
were dismissed.