Town and country planning — Breach of planning control consisting of change of use without planning permission of
Van Dyck v Secretary of
State for the Environment
In 1982-83 2
Oakleigh Park Drive was divided into two flats without planning permission. In
1986 the appellants, unaware of the lack of planning permission, acquired a
long lease of one of the flats. In 1989, on discovering the breach of planning
control, the appellants applied to the second respondents, Southend-on-Sea
Borough Council, for retrospective planning permission. Their appeal against
the second respondents’ refusal of planning permission was dismissed by the
inspector on the ground that the unauthorised conversion of the house into
flats had resulted in more competition for the limited kerbside parking. The
appellant’s application to the High Court to quash that decision pursuant to
section 288 of the Town and Country Planning Act 1990, on the ground that the
inspector had failed to consider a material consideration, that the division
into two flats was immune from enforcement action by reason of the four-year
rule under section 172(4)(c), was dismissed by Sir Frank Layfield QC on October
2 1991.
Doncaster
Borough Council v Secretary of State for the Environment
In 1971 the
second respondent subdivided 16 Markham Avenue, a two-storey house into two
self-contained flats. On June 4 1990 the appellant council served on the second
respondent an enforcement notice alleging as the breach of planning control
‘the making of a material change in the use of the land from a use for single
family occupation to a use for the purpose of multiple paying occupation
providing flat accommodation’. The second respon- dent’s appeal to the
Secretary of State was allowed, the inspector accepting that each flat was a
separate dwellinghouse and therefore entitled to immunity under the four-year
rule. The appellant council appealed that decision to the High Court under
section 289 of the 1990 Act. On November 7 1991 Webster J held that the breach
of planning control was not immune and allowed the statutory appeal.
The
appeals before the Court of Appeal
The appellants
in both appeals, including the Secretary of State in Doncaster Borough
Council v Secretary of State for the Environment, submitted that the
immunity from enforcement-notice proceedings after four years provided by
section 172(4)(c) (the four-year rule) applies equally to a breach of planning
control consisting of the change of use without planning permission of a single
dwellinghouse into two (or more) separate dwellinghouses as to the unpermitted
use of a building as a single dwellinghouse.
1990 Act which, construed in the context of sections 55(3)(a) (there is a
breach of planning control if development has been carried out without the
grant of planning permission required) and 336(1) (‘building’ includes any part
of a building), is capable of encompassing subdivision within its protection.
If a whole house is divided into two flats, then it is perfectly possible to
find within the terms of the section in respect of each new flat a change of
use of part of the building (the original whole house) to use as a single
dwelling-house. Given that construction, section 172(4)(c) is capable of being
construed and applied so as to benefit all new separate residences after four
years. The conditions in Pepper v Hart that Parliamentary
materials may be referred to in construing a statute where: (a) legislation is
ambiguous or obscure or leads to an absurdity; (b) the material relied upon
consists of one or more statements by a minister or other promoter of the Bill
together if necessary with such other parliamentary material as is necessary to
understand such statements and their effect; and (c) the statements relied upon
are clear, did not apply with the result that the parliamentary material could
not be relied upon in the determination of the appeal.
The following
cases are referred to in this report.
Backer v Secretary of State for the Environment (1981) 42 P&CR
98
Birmingham
Corporation v Mahib Ullah [1964] 1 QB 178;
[1963] 3 WLR 937; [1963] 3 All ER 668; (1963) 61 LGR 623; 15 P&CR 404;
[1963] RVR 712, DC
Burdle v Secretary of State for the Environment [1972] 1 WLR 1207;
[1972] 3 All ER 240; (1972) 70 LGR 511; 24 P&CR 174; [1972] EGD 678; 223 EG
1597, DC
Ealing
Corporation v Ryan [1965] 2 QB 486; [1965] 2
WLR 223; [1965] 1 All ER 137; 17 P&CR 15, DC
Impey v Secretary of State for the Environment (1984) 47 P&CR
157; DC
Okereke v Brent London Borough Council [1967] 1 QB 42; [1966] 2 WLR
169; [1966] 1 All ER 150, CA
Peacock
Homes Ltd v Secretary of State for the
Environment (1984) 83 LGR 686; 48 P&CR 20, CA
Pepper v Hart [1992] 3 WLR 1032
Rawlins v Secretary of State for the Environment [1990] 1 PLR 110;
[1990] JPL 326; CA
Trevors
Warehouses Ltd v Secretary of State for the
Environment (1972) 23 P&CR 215, DC
Wood v Secretary of State for the Environment [1973] 1 WLR 707;
[1973] 2 All ER 404; (1973) 25 P&CR 303, DC
Worthing
Borough Council v Secretary of State for the
Environment (1992) 63 P&CR 446; [1992] 2 PLR 40
In Van Dyck
v Secretary of State for the Environment, this was an appeal by the
appellants, Peter Louis Van Dyck and Janice Elizabeth Van Dyck, from a decision
of Sir Frank Layfield QC, sitting as a deputy judge of the Queen’s Bench
Division, who on October 2 1991 dismissed their application under section 288
of the Town and Country Planning Act 1990 to quash the decision of the first
respondent, the Secretary of State for the Environment, by his inspector, who
had dismissed an appeal by the appellants from a decision of the second
respondents, Southend on Sea Borough Council, to refuse retrospective planning
permission of 2 Oakleigh Park Drive, Southend on Sea.
In Doncaster
Borough Council v Secretary of State for the Environment the
appellants, Doncaster Borough Council, appealed from a decision of Webster J,
who on November 1991 allowed the appellants’ appeal from a decision of the
first respondent, the Secretary of State for the Environment, by his inspector,
who had quashed an enforcement notice issued by the appellants to the second
respondent, Mr Dunnill, in respect of 16 Markham Avenue, Doncaster.
Martin Wood
(instructed by Sharp Pritchard, for the solicitor to Doncaster Borough Council)
appeared for Doncaster Borough Council; Andrew Newcomb (instructed by L Dawson
& Co) appeared for Mr and Mrs Van Dyck; Christopher Katkowski (instructed
by the Treasury Solicitor) represented the Secretary of State for the
Environment.
Giving
judgment, SIMON BROWN LJ said: There are before the court two appeals
which I shall call respectively the Doncaster appeal and the Van Dyck
appeal. Both turn upon the same short point of law: the proper construction
and application of section 172(4)(c) of the Town and Country Planning Act 1990
(now re-enacted in substantially similar form as section 171B(2) by section 4
of the Planning and Compensation Act 1991). More particularly, the issue raised
by these appeals is: does the immunity from enforcement notice proceedings
after four years provided by section 172(4)(c) (hereafter called the ‘four-year
rule’) apply equally to a breach of planning control consisting of the change of
use without planning permission of a single dwellinghouse into two (or more)
separate dwellinghouses (hereafter called ‘subdivision’) as to the unpermitted
use of a building as a single dwellinghouse?
The appellants (including the Secretary of State in the Doncaster appeal)
submit that it does; Doncaster Borough Council submits not.
In late 1991
there were, in quick succession, three decisions on the point: two, the two now
under appeal, holding that the four-year rule does not apply to the subdivision
of a single dwellinghouse; the third — Worthing Borough Council v Secretary
of State for the Environment (1992) 63 P&CR 446* (Worthing) —
holding that it does.
*Editor’s
note: See also [1992] 2 PLR 40.
Before
considering the facts of these cases it is convenient first to set out the
statutory framework within which the point of law arises and to give a brief
indication of the rival contentions.
The relevant
provisions of the 1990 Act are as follows:
55.–(1) . . .
‘development’, means . . . the making of any material change in the use of any
buildings or other land.
(3) For the avoidance of doubt it is hereby
declared that for the purposes of this section —
(a) the use as two or more separate dwellinghouses
of any building previously used as a single dwellinghouse involves a material
change in the use of the building and of each part thereof which is so used;’
. . .
172.–(1)
Where–
(a) it appears to the local planning authority
that there has been a breach of planning control after the end of 1963; and
(b) the authority consider it expedient to do so
. . . they may issue a notice (an ‘enforcement notice’) requiring the breach to
be remedied.
(3) There is a breach of planning control —
(a) if development has been carried out . . .
without the grant of the planning permission required
. . .
(4) An enforcement notice which relates to a
breach of planning control consisting in —
. . .
(c) the making without planning permission of a
change of use of any building to use as a single dwellinghouse . . . may be
issued only within the period of 4 years from the date of the breach.
. . .
336.–(1) In
this Act, except insofar as the context otherwise requires . . . ‘building’
includes any structure or erection, and any part of a building, as so defined
. . .
174.–(1) A
person having an interest in the land to which an enforcement notice relates or
a relevant occupier may appeal to the Secretary of State against the notice
. . .
(2) An appeal may be brought on any of the
following grounds —
. . .
(d) in the case of a notice to which section
172(4) applies, that the period of four years from the date of the breach of
planning control to which the notice relates had elapsed at the date when the
notice was issued . . .
The
appellants’ argument focuses particularly on sections 55(3)(a), 172(4)(c) and
336(1) and essentially amounts to this: when a single dwellinghouse is
subdivided, say, into two flats, there is a breach of planning control
consisting of a material change of use of each part of it — section 55(3)(a) so
states. Having regard to section 336(1) (the interpretation section) section
172(4)(c) can and should be read as stating: ‘the making without planning
permission of a change of use of any building or any part of a building
[my emphasis] to use as a single dwellinghouse’ may be issued only within four
years of the breach. ‘Building’ is plainly apt to include a dwellinghouse;
likewise ‘any part of a building’ is apt to include that part which becomes a
flat following subdivision, and the flat itself becomes a separate and
accordingly a ‘single’ dwellinghouse. Even assuming that it is theoretically
possible to address the enforcement notice to the whole house as well as to
each flat following its subdivision, the planning authority cannot thereby
deprive the occupiers of the individual flats of the ground of appeal otherwise
available to them under sections 172(4)(c) and 174(2)(d).
The
respondents’ contrary argument is essentially as follows: section 55(3)(a)
exists merely so that no one may argue that the subdivision of a single
dwellinghouse into separate dwellinghouses does not itself involve a material
change of use. It casts no light on the proper construction and application of
section 172(4)(c). For the purposes of this latter section it is wrong to judge
whether there has been a material change of use to use as a single
dwellinghouse by reference to the change which the unauthorised development has
brought about; rather, the occupiers acquire immunity under this provision only
when each part of the building converted was itself properly to be regarded as
a distinct planning unit before the development took place. That at least is
how I understand the respondents’ argument although I confess to having found
it on occasion somewhat elusive.
I turn now to
the decisions under appeal with which I propose to deal in chronological order,
inserting between them such reference as is helpful to Worthing.
(1) Van Dyck v Secretary of State for the
Environment
The facts
In 1982-83 2
Oakleigh Park Drive was divided into two flats. Planning permission should have
been, but was not, obtained. In 1986 the appellants, unaware of the lack of
planning permission, acquired a long lease of one of the flats. Only in 1989
did they discover this breach of planning control and seek to cure it by an
application to the council for retrospective planning permission. It was
refused. They appealed to the Secretary of State. An inspector was appointed to
determine the appeal. He concluded that there were two main issues, first,
whether the conversion would adversely affect the character and appearance of
the surrounding area, second, whether it would be detrimental to the safety and
free flow of traffic on Oakleigh Park Drive. The first issue he resolved in the
appellants’ favour. As to the second, however, he expressed himself ‘convinced
that the unauthorised conversion of the house into flats has resulted in more
competition for the limited kerb-side parking, exacerbating the congestion and
so the potential hazards for drivers and pedestrians’. He accordingly dismissed
the appeal. That was in October 1990.
The appellants
then applied to the High Court to quash that decision pursuant to section 288
of the 1990 Act. Essentially their case was that more than four years had
elapsed since the breach of planning control in question and that it was
therefore no longer possible for the planning authority to enforce against it.
Nothing, therefore, was to be gained by refusing the planning permission
sought. At the very least the inspector should have had regard to the fact that
the breach could no longer be enforced against. Clearly that was a material
consideration. Instead, he assumed the contrary, this being evident from his
regretful conclusion that the appellants ‘will have to bear the consequences
and costs of restoring (the property) to a single house’. In short, the
appellants took before the court (although not, it seems, before the inspector)
the point now under appeal.
The
decision under appeal
The point
failed. On October 2 1991 the statutory application was dismissed by Sir Frank
Layfield QC sitting as a deputy judge of the Queen’s Bench Division. The
relevant part of his judgment reads as follows:
Mr Jay, on
behalf of the Secretary of State, the first respondent, concedes that if the
applicants are correct in claiming that the conversion of each part of the
premises to a self-contained flat is immune from enforcement proceedings by the
operation of section 172(4)(c) of the 1990 Act, then the Secretary of State has
lost the case. It was only upon that section that (counsel) for the applicants,
based his submission of immunity. Mr Jay pointed out, however, that the subject
under review is the subdivision of a single dwelling into two dwellings. That
is not the change to which section 172(4)(c) is addressed. The subsection
applies where there is a breach of planning control which consists of the
making of a change of use of any part of any building to use as a single
dwellinghouse. The breach to which the subsection applies is, I consider, a quite
distinctly different breach which consists in making a change of use of any
dwelling into two dwellinghouses as the wording of section 55(3)(a)
demonstrates. I find, therefore, that section 172(4)(c) does not itself confer
immunity on the change of use made in 1983 at the latest. If I am correct in
that reading, there was no obligation on the inspector to take account of an
inability of the council to take enforcement action.
The sentence
starting ‘The breach to which the subsection applies’ can perhaps usefully be
fleshed out to clarify the meaning which I have no doubt Sir Frank intended:
The breach to
which the subsection [ie section 172(4)(c)] applies is, I consider, a quite
distinctly different breach to [that alleged here] which consists in making a
change of use of any dwelling into two dwellinghouses as the wording of section
55(3)(a) demonstrates. (The words in square brackets are those I have added for
clarity.)
What in short
I understand Sir Frank to have been saying was that whereas section 55(3)(a) is
all about subdivision — change of use from use as a single dwellinghouse
section 172(4)(c) deals with the converse situation — change of use to use as a
single dwellinghouse.
(2) Worthing Borough Council v Secretary of
State for the Environment
The facts
A two-storey
house in Worthing was converted into two flats, respectively a ground-floor
flat and a first-floor flat. More than four years later Worthing Borough
Council issued an enforcement notice alleging a breach of planning control
consisting in the ‘unauthorised change of use of land from a single unit of
residential accommodation into two units of accommodation’, and requiring the
occupiers, by way of the steps to be taken to remedy the breach, ‘to
discontinue use of the land as two units of accommodation and to
occupiers appealed to the Secretary of State and before the inspector appointed
took the point now under appeal — contending that is, that they were entitled
to immunity under the four-year rule. The inspector accepted the argument and
quashed the enforcement notice. Worthing Borough Council then appealed to the
High Court under section 289 of the 1990 Act.
The
decision
This time it
was held that the breach of planning control was immune. On November 5 1991 the
planning authority’s statutory appeal was dismissed by Sir Graham Eyre QC
sitting as a deputy judge. His reasoning was largely, although not entirely,
that now urged by the present appellants. He emphasised the importance of
reading into section 172(4)(c) the definition of building from section 336 and
continued:
On the
conversion of each self-contained flat each was a part of a building and the
change of use of those parts was each to use as a single dwellinghouse . . . I note
that Sir Frank Layfield appears not to have been taken to the definition of
building in section 336 of the Act, which is fundamental to the construction of
section 172(4)(c).
That would seem
to be wrong: the passage I have already cited from Sir Frank’s judgment appears
clearly to recognise that the word ‘building’ in section 172(4)(c) includes
also reference to a part of a building.
Sir Graham
then differed from Sir Frank as to the relevance of section 55(3)(a),
expressing the view that it afforded no assistance to the proper construction
of section 172(4)(c).
(3) Doncaster Borough Council v Secretary of
State for the Environment
The facts
In 1971, Mr
Dunnill, the second respondent to this appeal, subdivided 16 Markham Avenue, a
two-storey house which he owned in Doncaster, into two self-contained flats,
creating thereby, as in the Worthing case, essentially a ground-floor
flat and a first-floor flat. These flats he thereafter let, mostly to young
couples, so that they remained in continuous occupation. On June 4 1990
Doncaster Borough Council served upon Mr Dunnill an enforcement notice alleging
as the breach of planning control ‘the making of a material change in the use
of the land from a use for single family occupation to a use for the purpose of
multiple paying occupation providing flat accommodation’ and requiring Mr
Dunnill ‘to discontinue the use of the land for the purpose of multiple-paying
occupation’.
Mr Dunnill
appealed to the Secretary of State and, as in Worthing, successfully
took the immunity point under section 172(4)(c). The inspector, while noting
the particular allegation made by that enforcement notice, concluded that it
was clearly referable to flat accommodation and further that the two flats ‘are
now separate planning units’. He accepted that each flat was a separate
dwellinghouse and therefore entitled to immunity under the four-year rule. He
accordingly quashed the enforcement notice. Doncaster Borough Council, like
Worthing Borough Council, appealed under section 289.
The decision
under appeal
This time it
was held that the breach of planning control was not immune. On November 7 1991
Webster J allowed the planning authority’s statutory appeal. He agreed with Sir
Frank Layfield; disagreed with Sir Graham Eyre. Having noted the Secretary of
State’s arguments — substantially the same as those advanced before us — he
continued as follows:
There is, in
my view, much force in many of those contentions. However, they overlook both
the mischief aimed at by the relevant provisions and the obviously intended
effect of section 172(4)(c). The mischief aimed at to the extent that it is not
protected by section 172(4)(c) is that of converting one building, or part of
it, whether or not it was a dwellinghouse before the conversion, into two or more
dwellinghouses. The obviously intended effect of section 172(4)(c) is to give
limited protection where a building, or part of it, is converted into one
dwellinghouse.
In this case,
the enforcement notice related to the whole of one dwellinghouse which, in
breach of planning control, had been converted not into one, but into two
dwellinghouses. The enforcement of planning control was enforced against the
house as a whole, the unit which had been developed, and not against each flat
which had not existed before the conversion.
The reply to
Mr Havers’ [counsel then appearing for the Secretary of State] submission that,
in effect, the breaches were two breaches and not one, consisting of the
conversions of two separate parts of the use into two separate flats, each of
which conversions would, if viewed separately, have been protected by section
172(4)(c), is that the development actually carried out was not the conversion
of any separate part of the house, but the conversion of the house as a whole.
Moreover, it would, in my view, have been impossible to identify the relevant
use for planning purposes of either of the two parts of the house, which were
converted into the flats, before that conversion took place. Although the Act,
as it applies to a building, is to be taken to apply to a part of a building,
the definition section does not provide that when it applies to a
dwellinghouse, it is to be taken to apply to a part of the dwellinghouse. I can
think of no way of describing the use of either of the two parts of the house
before conversion for planning purposes other than simply as, in each case, a
part of the dwellinghouse.
It will be
noted that Van Dyck came before the Secretary of State as a planning
appeal; the Worthing and Doncaster cases as appeals against
enforcement notices. This, I have no doubt, explains the difference in approach
taken by the various inspectors. It was only the inspector in the planning
section who adopted an approach inconsistent with that for which the Secretary
of State now contends. That, however, is by the way; the important question is:
which approach is right?
It seems to me
necessary first to consider what, if any, assistance one gets from the
judge-made concept of the planning unit. This, after all, is the concept
underlying the respondents’ arguments.
As is well
known, the planning-unit concept evolved as a means of determining the most
appropriate physical area against which to assess the materiality of change —
to decide, therefore, whether in any particular case there has been a breach of
planning control consisting of a ‘material change in the use of any buildings
or other land’.
The classic
exposition of this doctrine is to be found in the judgment of Bridge J in Burdle
v Secretary of State for the Environment [1972] 1 WLR 1207, from
which the following short passage will for present purposes suffice:
It may be a
useful working rule to assume that the unit of occupation is the appropriate
planning unit, unless and until some smaller unit can be recognised as the site
of activities which amount in substance to a separate use both physically and
functionally.
Counsel for
the respondents drew our attention to Wood v Secretary of State for
the Environment (1973) 25 P&CR 303 in which the divisional court was
concerned with the varying uses of different parts of a smallholding which at
all material times remained in the appellant’s sole occupation. The particular
question raised was whether it was right to treat a conservatory extension of
the farmhouse as a separate planning unit. Giving the judgment of the
Divisional Court, Lord Widgery CJ referred to a number of decisions in which ‘.
. . one finds a disinclination to cut up a holding into penny packets and treat
them as separate planning units’, cited the passage from Burdle to which
I have already referred, and continued:
That
authority seems to me to support the view, which I would think to be right
without such assistance, that it can rarely if ever be right to dissect a
single dwellinghouse and to regard one room in isolation as being an
appropriate planning unit for present purposes.
Relying on
that decision, Mr Wood submits that the court should be reluctant to conclude
that the appropriate planning units in the case of a subdivided house are the
flats resulting rather than the single dwellinghouse previously existing.
He further
points to Rawlins v Secretary of State for the Environment [1990]
1 PLR 110 where this court upheld the planning authority’s selection of an area
greater than that against which they might have sought to enforce and greater
certainly than that of the individual areas of occupation within it. The
unsuccessful appellants there were travelling showmen occupying individual
caravan plots. The enforcement notices were directed to the whole site and the
breaches alleged included the use of the land ‘as a caravan site, the
construction of a road, the construction of hardstandings on the land, the use
of the land for the parking, storage, maintenance and repair of motor vehicles,
fairground rides, plant, equipment and machinery’. The court recognised the
well-established principle that the question of what is the proper planning
unit is essentially a matter of fact and degree and accepted that it was
permissible in that case for the authority to have taken a large unit even
though within it were individual plots in separate ownership.
Rawlins was relied upon also by Mr Katkowski for the Secretary of State, in
particular the following passage from Butler Sloss LJ’s judgment:
. . . I do not
see these appeals as setting aside the existing long-established practice of
issuing and serving enforcement notices on a planning unit, which
the Environment (1974) 28 P&CR 424] ‘. . . the area occupied as a
single holding by a single occupier’ — using single occupier in the collective
sense so that it would include two or more joint occupiers.
These . . .
cases have unusual if not exceptional features and characteristics . . . which
justify the less usual procedure adopted, but which do not appear to have
arisen before and are therefore unlikely to arise frequently.
The burden of
the appellant’s submissions on the planning unit issue is that the cases of
subdividing dwellinghouses, unlike Rawlins, are not exceptional so that
the ordinary practice should apply; that is, enforcement action should be
targeted at the unit of occupation, here each individual flat. For good
measure, submits Mr Katkowski, the inspector in Doncaster in any event
expressly found that the two flats ‘are now separate planning units’. In so far
as the question is one of fact and degree, therefore, it was a question for him
and he resolved it against the planning authority. Each individual unit should,
therefore, he submits, be held entitled to the benefit of the four-year rule.
Having
considered these competing submissions at some length I have reached the
conclusion that the concept of the planning unit in fact affords no assistance
to either side. As stated, the purpose of the concept — the only point in
deciding upon the appropriate planning unit — is to decide whether there has
been a material change of use. Here undoubtedly there has been — section
55(3)(a) so declares. There is accordingly no possible need to invoke the
doctrine of the planning unit to decide the question. Here, moreover, it was
the very act of creating two separate units of occupation out of a single
pre-existing unit which constituted the making of the material change of use.
How inappropriate, therefore, that one should seek assistance from a doctrine
substantially founded on units of occupation to illuminate the nature of the
breach of planning control in question or to determine the appropriate target
for enforcement. In short, none of the planning-unit cases to which I have
referred has, I believe, any application whatever to the situation presently
confronting this court.
I turn next to
a brief consideration of the three judgments already given upon the point at
issue.
1. Van Dyck
I cannot
accept Sir Frank Layfield’s apparent view that because subdivision is within
section 55(3)(a) it is not therefore within section 172(4)(c). Section 55(3)(a)
is, one must note, only concerned to declare that a particular change of use is
a breach of planning control. Section 162(4)(c) dictates simply for how long a
particular change of use is vulnerable to enforcement. Beyond pointing out
merely the first blush difference between the two provisions, Sir Frank seems
to me to give no reasoning for his conclusion that: ‘. . . the subdivision of a
single dwellinghouse into two dwellings . . . is not the change to which
section 172(4)(c) is addressed’.
2. Worthing
Sir Graham
Eyre reached the opposite conclusion from Sir Frank Layfield, essentially by
putting aside section 55(3)(a) and adopting a possible literal reading to
section 172(4)(c) after building in the definition of ‘building’.
3. Doncaster
Webster J’s
thoughtful reasoning is to be found in the long passage which I have already
set out. There seem to me, however, fundamental difficulties within it. First,
I have difficulty with the learned judge’s suggestion that ‘the development
actually carried out was not the conversion of any separate part of the house,
but the conversion of the house as a whole’. The development here in question,
it must be remembered, was not the conversion (whatever precisely that may be)
at all — it was rather the material change of use occasioned by ‘the use as two
. . . separate dwellinghouses’ of the building previously used as a single
dwellinghouse: see section 55(3)(a). Obviously, whoever converts such a house
(if by conversion is meant the physical creation of separate living facilities)
initiates the situation in which the material change of use can then occur. But
the actual breach of planning control commences only when separate
dwellinghouses exist and, indeed — subject to only the decisions in Impey v
Secretary of State for the Environment (1984) 47 P&CR 157 and Backer
v Secretary of State for the Environment (1981) 42 P&CR 98 — only
when these separate dwellinghouses actually come to be used as such.
Second, I
cannot share the judge’s view that ‘it would have been impossible to identify
the relevant use for planning purposes of either of the two parts of the house,
which were converted into the flats, before that conversion took place’. As it
seems to me, section 55(3)(a) answers that too: the material change of use is
declared to have taken place in regard to each part of the building;
accordingly, the previous use of each part was that of a (different)
dwellinghouse.
None of these
three decisions, therefore, do I find compelling in their reasoning.
What
additional arguments have been advanced before this court? Let me turn first to those which, for my
part, I have found ultimately unhelpful in resolving this case.
Mr Katkowski
drew our attention to the statutory provisions requiring enforcement notices to
be served on all owners and occupiers (section 172(6)) and enabling any
occupier, including even a licensee, to appeal to the Secretary of State
(section 174(1)(6)). So be it. This seems to me a slender basis for contending
that the four-year rule must therefore apply to each part of the subdivided
dwelling. Why should that be? of course
I recognise that there are individual interests involved and equally obviously
that there will often be acute problems of enforcement. Take a case where the
owner has divided his house into two self-contained flats (or, indeed two
separate vertical freeholds) and sold each to a different buyer. But even were
the four-year rule to apply in such circumstances, the planning authority would
still be entitled to enforce within that period and problems would still arise.
Next Mr
Katkowski fixes upon the phrase ‘which relates to’ in the opening clause of
section 172(4): ‘An enforcement notice which relates to a breach of planning
control consisting in . . .’. This phrase was considered with regard to the
provisions of the 1971 Act (although not in the context of a para (c) breach)
in Peacock Homes Ltd v Secretary of State for the Environment (1984)
48 P&CR 20 where Dillon LJ said:
The key words
‘which relates to’ in the phrase ‘a condition or limitation which relates to
the carrying out of such operations’, are not words of art. They are words
often used in the Act, as in other statutes, in a very general sense . . . They
may often mean little more than ‘which has to do with’.
Let us then
approach section 172(4) as if it read: ‘An enforcement notice which has to do
with a breach of planning control consisting in . . .’. That still leaves for
decision to the critical question whether para (c) is apt to apply to separate
dwellings consequent upon subdivision.
Mr Newcombe
submits first, that in the case of subdivision, enforcement action can be taken
against only the subdivided parts and not against the original whole,
alternatively that, even if it can be taken against the whole, it should be
found immune after four years by virtue of the immunity of its parts.
On the first
limb of his submission he prays in aid the decision of the divisional court in Backer
v Secretary of State for the Environment (1981) 42 P&CR 98 in
which it was held that ‘the question whether section 87(3)(c) (the predecessor
to section 172(4)(c)) applies must be decided as a matter of reality on the
facts and cannot be artificially avoided or by-passed by the choice of words
adopted by the planning authority in the enforcement notice’ per Skinner
J p101, finding some support for that view in the use of the phrase ‘which
relates to’. But that decision is to my mind of no direct value in the present
case because it was there accepted on all sides that the breach would have
fallen squarely within para (c) had the authority chosen only to enforce
against it as a change of use rather than as a breach of condition. In the
present case that is the very point at issue. Here, indeed, the invocation of
substance and reality and the condemnation of artificiality is common to both
sides! In short, Backer seems to
me to beg rather than answer the question for decision in the present appeals.
On the second limb of his argument Mr Newcombe refers us to Trevors
Warehouses Ltd v Secretary of State for the Environment (1972) 23
P&CR 215, a case illustrating the well-known Mansi principle. This
is to the broad effect that steps required to be taken by an enforcement notice
to remedy a breach of planning control should not extend to requiring the
discontinuance of ancillary uses or the cutting down of uses to the extent to
which, although unlawful, they are established and thus immune from enforcement
action. Even assuming, the argument runs, that enforcement action can be issued
against the whole building, the steps required to be taken cannot properly
include anything which involves destroying the rights established after four
years which attach to the constituent parts of the building. Once again,
however, this argument seems to me to beg the central question as to whether
section 172(4)(c) applies to cases of
not, there are no established rights to preserve.
Mr Wood for
the respondents submits that subdivision, as opposed to the creation, of a
single dwelling creates particular difficulties of enforcement: it both gives
rise to increased activity (creating, for instance, problems of parking and
congestion as found in the Van Dyck appeal) and yet is difficult to
monitor and detect. Parliament should not readily be thought to have intended
to include such breaches of planning control within the four-year rule. These
arguments, too, I find unconvincing. In the first place there appears a certain
inconsistency in asserting on the one hand that the consequence of subdivision
is all too evident and yet on the other hand that it is not easily detectable.
And, second, it should not be beyond the wit of the planning authority’s
enforcement section to discover the creation of new separate dwellings whether
by reference to the electoral register or indeed by counting door bells.
Mr Wood’s
central argument is that which I have already attempted to summarise: an
argument depending upon the application of the planning-unit concept to the
situation as it stood before the unauthorised development took place. For
reasons I have already endeavoured to indicate, it is not an argument I feel
able to accept.
I come back,
therefore, to the language of section 172(4)(c) itself, language which,
construed in the context of sections 55(3)(a) and 336(1), is, as already
demonstrated, capable of encompassing subdivision within its protection. If a
whole house is divided into two flats, then it is perfectly possible to find
within the terms of the section in respect of each new flat a change of use of
part of the building (the original whole house) to use as a single dwellinghouse.
That, as stated, is the central thrust of the appellants’ arguments. Given that
possible construction why then should it not be adopted so as to provide
immunity to the limited extent of the four-year rule for the new separate
dwellings brought about by subdivision?
Mr Wood for
Doncaster submits that such a construction involves a strained reading of
section 172(4)(c), and that it would result in the application of this branch
of the four-year rule (a branch created by the 1968 Act, which abolished the rule
in the great majority of cases) in circumstances in which, until comparatively
recently, no one appears to have thought that it applied.
The
appellants, however, contend that the self-same considerations underlying the
undisputed application of the four-year rule to the creation of a single
dwellinghouse — namely Parliament’s desire to protect long-established
residential occupation — apply equally to the creation of more than one new
residential unit. There is, they submit, neither sense nor logic in making a
distinction between these categories; the rule should apply to the creation of
all new separate dwellings — although not, of course, to conversions giving
rise to multiple occupation with shared facilities, a different class of case
altogether.
The appellants
stress too the various anomalies which would result from the narrow
construction contended for by the respondents. Take a three-storey office
building, one floor of which is converted and becomes used as a dwellinghouse.
Section 172(4)(c) would presumably apply: there has been a change of use of
part of the building to use as a single dwellinghouse. Why should it be any
different if two floors, or indeed all three, are converted? Would it be different again if the changes of
use occurred at different times? If so,
why? Instead of horizontal conversion of
this nature, take instead a single office building converted vertically into
one, two or three separate houses, and ask the same questions as before. Why,
in short, should some of these developments be treated differently to
others? The considerations for the new
single owners will certainly be no different.
Although I do
not pretend to have found this an easy problem to resolve, I have finally come
to accept the appellants’ central argument. Section 172(4)(c) is, I believe,
capable of being construed and applied so as to benefit all new separate
residences after four years. That being so, having regard to the broad policy
which I conceive to underlie this provision, in my judgment, it should be thus
construed and applied.
It follows
that I, for my part, would allow both appeals. In the result I would remit
matters to the Secretary of State in the case of Van Dyck for rehearing
and determination by him. In the case of Doncaster, the decision of the
Secretary of State should be restored.
Chapter II
Chapter I of
this judgment was written and due to be handed down when along came Pepper v
Hart [1992] 3 WLR 1032. The appeals were promptly relisted for further
hearing and Chapter II is concerned with the arguments addressed to us
following this important decision of the House of Lords.
First, I must
set out the parliamentary material now placed before us as bearing upon the
proper construction of section 172(4)(c). This appears in the Hansard report
of the debate on May 22 1968 on the Town and Country Planning Bill, when the
Minister of Housing and Local Government, Mr Nial MacDermott, was promoting by
way of amendment the provision that eventually became section 172(4)(c). For
the opposition, Mr Hugh Rossi was proposing that para(c) should instead read:
The making
without planning permission of a change of use of any building to residential
use (rather than ‘to use as a single dwellinghouse’).
The relevant
passages in the debate are as follows: at column 664-665 the minister,
explaining para(c)’s reference to a change of use to use as a single
dwellinghouse said:
1. The reason
for this is that changes of use to multi-occupation can have undesirable social
as well as planning consequences. They come within the general mischief in that
they are often difficult for the planning authority to detect and I understand
that there have in practice been cases of this kind of development in which the
4 year rule has been a barrier, preventing the planning authorities from
exercising the control which is patently desirable on social as well as
planning grounds. This is the sort of abuse which can lead to an area’s
deterioration into a slum or near slum and I hope that the House will agree
that this is a proper limitation.
2. At column
671 Mr Rossi said:
There is no
such class use in the Planning Acts as a single dwellinghouse. The class use is
residential use . . . Is the Minister suggesting that there can be more
concealment for multi-occupation than for single occupation?
3. The
minister responded:
I should have
thought that it is very clear that if a building is used for residential
purposes it is fairly readily observable, but one does not know how many people
are living there.
4. At column
671-672 Mr Rossi continued:
I concede at
once that multi-occupation, particularly in our running twilight areas, is a
great social evil which must be cured, but I suggest that it must be cured by
redevelopment plans by housing associations or local authorities. . . .
Multi-occupation may be treated in other ways under other legislation. I
believe that the recent White Paper has something to say about problems of
multi-occupation and overcrowding.
I ask that
Minister to consider the case of a shop with storerooms over it, all housed in
one building. If the shopkeeper decides to change the user of part of the
premises for residential accommodation for one or two members of his staff, he
will be in breach of this provision. He will not be protected by the four-year
rule. They are housed within one building, he is creating residential
accommodation, and yet he is not protected by it. I ask the Minister to
consider the further ramifications that the restriction . . . might well have.
5. At column
675 the minister concluded:
I have pointed
out the social evil which will result. It is not something new. I am not
inventing the idea of a single dwellinghouse as a separate class. Section 12(3)
of the 1962 Act provides:
‘For the
avoidance of doubt it is hereby declared that for the purposes of this section
—
(a) the use as two or more separate
dwellinghouses of any building previously used as a single dwellinghouse
involves a material change in the use of the building and of each part thereof
which is so used;’
— That, of
course, is the present section 5(3)(a) —
It already is
a breach of planning control to convert from a single dwellinghouse to a
multiple dwellinghouse, and for the social reasons I have outlined I suggest
that it would be wise not to subject such a breach to the constraint of the
four-year rule.
Before turning
to the argument I must refer to the speeches in Pepper v Hart and
in particular the threefold test now held to govern the use of Parliamentary
material of this kind. It appears in the speech of Lord Browne-Wilkinson (with
which the majority of the other members of the House agreed) at p1061F as
follows:
. . . the
exclusionary rule should be relaxed so as to permit reference to Parliamentary
materials where (a) legislation is ambiguous or obscure, or leads to an
absurdity; (b) the material relied upon consists of one or more statements by a
minister or other promoter of the Bill together if necessary with such other
Parliamentary material as is necessary to understand such statements and their
effect; (c) the statements relied upon are clear.
As to
condition (c), Lord Browne-Wilkinson had a little earlier, at p1060C, said:
The purpose
of looking at Hansard will not be to construe the words used by the minister
but to give effect to the words used so long as they are clear.
Two other
passages in the speeches I have found helpful in illuminating the proper
approach to condition (c): per Lord Bridge of Harwich at p1039H:
It should, in
my opinion, only be in the rare cases where the very issue of interpretation
which the courts are called on to resolve has been addressed in Parliamentary
debate and where the promoter of the legislation has made a clear statement
directed to that very issue, that reference to Hansard should be permitted.
Per Lord Oliver of Aylmerton at p1042H:
. . .
relaxation . . . can apply only where the expression of the legislative
intention is genuinely ambiguous or obscure or where a literal or prima facie
construction leads to a manifest absurdity and where the difficulty can be
resolved by a clear statement directed to the matter in issue.
As to
condition (a), I myself have not the least doubt that it is satisfied in the
present case. True, the first submission of each of the three counsel appearing
before us was that para(c) unambiguously surrenders the meaning for which he
contends. But the fact that these contentions are inconsistent with each other
and that various experienced judges at first instance have reached differing
conclusions upon the point, quite apart from the very real doubts which I
myself experienced in writing chapter I of this judgment, lead me to conclude
that this provision is indeed properly to be characterised as both ambiguous
and obscure.
Condition (b)
is plainly satisfied, the statements relied upon being those of the minister
promoting the relevant amendment to the Bill.
It is upon
condition (c) that the argument has centred. Mr Wood for Doncaster argues that
the report of the debate read as a whole clearly reveals that the minister was
using the phrases ‘multi-occupation’ and ‘multiple dwellinghouse’ to refer to
all forms of multiple occupations including use of premises as self-contained
flats. That, he submits, not merely accords with the ordinary use of language
but is perfectly apparent from the minister’s concluding remarks, in which he
quoted what is now section 55(3)(a) and immediately continued:
It already is
a breach of planning control to convert from a single dwellinghouse to a
multiple dwellinghouse and . . . it would be wise not to subject such a
breach to the constraint of the four-year rule.
[Counsel’s
emphasis.]
The minister
was clearly regarding a section 55(3)(a) breach as falling outside the
protection of the four-year rule. For good measure, Mr Wood points out that
that response followed upon the earlier passage in which Mr Rossi, giving the
illustration of the shopkeeper changing the use of part of shop premises to
residential accommodation, made plain his own understanding — consistent with
Doncaster’s case — of the effect of the proposed legislation, an understanding
which the minister’s response conspicuously left undisturbed.
Mr Katkowski
for the Secretary of State submits to the contrary that the terminology used by
the minister — his many references to ‘multi- occupation’ and his final
reference to ‘multiple dwellinghouse’ — taken together with the specific
reasons which he gave for excluding certain types of residential use from the
benefit of the four-year rule — first, the difficulty of detecting such change
of use through not knowing how many people live in particular premises; second,
the fear of areas deteriorating into slums — clearly indicate that the
Government’s concern in promoting what is now section 172(4)(c) was to ensure
that the four-year rule applied not to multi-occupation as that term is
generally understood, but only to separate and self-contained units of
occupation.
Mr Newcombe,
on behalf of the Van Dycks, advanced an interesting if somewhat difficult
argument which emphasised the distinction between on the one hand dwellinghouses
in multiple occupation (such as those considered in what at the date of
this debate were the relatively recent decisions in Birmingham Corporation v
Habib Ullah [1964] 1 QB 178 and Ealing Corporation v Ryan [1965]
2 QB 486) and on the other hand houses in multiple occupation such as
had been under consideration in Okereke v Brent London Borough
Council [1967] 1 QB 42. Mr Newcombe’s central contention was that, in his
final response, the minister was first, by quoting section 12(3) of the 1962
Act, meeting Mr Rossi’s suggestion that he had invented the idea of a ‘single
dwellinghouse’, and then, turning to a quite separate matter, identifying
multiple occupation (as opposed to subdivision) of dwellinghouses as the
particular feature of residential user which the Government was intent on
excluding from the protection of the four-year rule.
My conclusions
upon the matter are these:
1. The
minister was clearly under the impression that section 172(4)(c) would not
avail breaches of planning control consisting of subdivision (section 55(3)(a)
cases) or even changes of use of part of a building (Mr Rossi’s
example).
2. That,
however, was no more than an assumption on the minister’s part. Those were not
the particular breaches of planning control which concerned him and whose
exclusion from the four-year rule he was specifically addressing.
3. The
minister’s final remarks were necessarily extempore responses to various
points raised by Mr Rossi during the debate. Although I reject Mr Newcombe’s
suggestion as unacceptably farfetched — the suggestion that the minister was
invoking section 12(3) simply to justify his proposed use of the term ‘single
dwellinghouse’ and, when referring to conversion ‘from a single dwellinghouse
to a multiple dwellinghouse’, was then intending to describe some quite
different breach of planning control — I certainly do not find in this crucial
passage the clarity for which Pepper v Hart requires us to
search, still less a clear statement directed to the very matter in issue: the
application or otherwise of the four-year rule not merely to multi-occupation
generally but to subdivision into separate flats in particular.
For my part,
therefore, I would hold the Pepper v Hart test to be unsatisfied
here with the result that the parliamentary material now before us must be put
aside and the appeals determined on the basis indicated in chapter I of this
judgment.
FARQUHARSON
and DILLON LJJ agreed and did not add
anything.
Appeals
allowed with costs here and below; legal aid taxation for the Van Dycks; as
regards the matter of relief, Van Dyck’s case be remitted to the Secretary of
State for rehearing and determination, and the decision of the Secretary of
State in Doncaster be restored, application for leave to appeal to the House of
Lords refused.