Three enforcement notices prohibiting use of adjacent pieces of land for sale of caravans–Use for that purpose found established on two pieces of land, but third notice upheld–Owner claims that the three pieces should have been treated as a single planning unit despite his withdrawal of the relevant ground of argument at the inquiry–Secretary of State not bound to ‘work the ground out for himself’ despite its abandonment and the want of evidence with regard to it–Cheshunt Urban District Council v Minister of Housing and Local Government [1965] EGD 229 cited and distinguished
This was an
appeal by West Cheshire Caravan Co Ltd, of Telegraph Road, Heswall, Wirral,
Merseyside, against a decision of the second respondent, the Secretary of State
for the Environment, communicated on November 15 1974, upholding an enforcement
notice served by the first respondents, Ellesmere Port Borough Council, requiring
the appellants to cease using land at the rear of Ledsham Filling Station,
Welsh Road, Ledsham, for display and sale of caravans.
Mr A B Dawson
(instructed by Thompson, Quarrell & Megaw, agents for Oliver & Co, of
Ellesmere Port) appeared for the appellants, and Mr A P Fletcher (instructed by
Sharpe, Pritchard & Co, agents for the solicitor to the council) appeared
for the first respondents. The second respondent took no part in the
proceedings.
Giving
judgment, LORD WIDGERY said: This is an appeal under section 246 of the Town
and Country Planning Act 1971 brought by the West Cheshire Caravan Co Ltd
against the Ellesmere Port Borough Council and the Secretary of State for the
Environment in respect of a decision by the Secretary of State communicated in
his decision letter of November 15 1974 wherein, having ordered that certain
other enforcement notices should be quashed, he upheld what in the proceedings
had been described as notice C relative to a rectangle of brown-coloured land
on the plans submitted to this court and delineating an area near Ledsham
railway station on the London Midland & Scottish & Great Western Joint
Railway line at Ellesmere Port. There is at this point what for many purposes
can reasonably be described as a single piece of land which in its entirety is
roughly triangular in shape and has a frontage to the railway to which I have
already referred. For the purposes of the various planning applications
relating to the land it has been treated as divided into four portions and
given four different colours. Fronting on the public road, Welsh Road, is an
area which is coloured white and in respect of which the planning authority
made no complaint about the user by the appellants. Immediately to the west and
south of the land coloured white is a triangular area coloured green. There
follows, moving towards the south and west, a rectangular area coloured blue,
and then finally the brown rectangular area to which I have already referred.
On the white land and the frontage to Welsh Road there has at all material
times been a petrol filling station, and on the white land adjoining the petrol
filling station caravans have been displayed and sold at all material times.
The local authority moved against the caravan use on the other parts of the site
on March 16 1971, when they served three enforcement notices each alleging a
material change of use from use to caravan sales after 1964–the first, notice
A, relating to the green triangle, the second, notice B, relating to the blue
rectangle and the third, notice C, relating to the brown rectangle. The
Secretary of State held the usual inquiry, and in regard to the white land
there was, as I have already said, no move by the planning authority to
restrict the use of the premises for the sale of caravans, so no decision was
required from the Secretary of State. On the green and blue land the Secretary
of State, accepting the report of his inspector, took the view that the use of
those two portions for the purposes of caravan display and sale had occurred before
January 1 1964. Accordingly there was an established right to continue that
use, and those two enforcement notices, A and B, were
to the brown land, and in this respect the Secretary of State upheld the notice
with modifications that do not call for any comment in this court at this
stage.
How did it
come about that the Secretary of State regarded the third use on the brown land
as being varied when he had rejected the other two? The reason was that it was not possible for
the appellants to contend that they had begun to use the brown land for the
sale of caravans before January 1964. We have not been required to go in detail
into what their difficulties were, but it is quite evident that they could not
sustain that as part of their argument. They had originally based their
objection to enforcement notice C (the one relating to the brown land) on a
number of grounds. But in the course of the argument before the inspector grounds
(b) and (d) were withdrawn. I remind myself what grounds (b) and (d) were. They
are to be found in section 88 of the Act of 1971. Ground (a) provides ‘that
planning permission ought to be granted for the development to which the notice
relates or, as the case may be, that a condition or limitation alleged in the
enforcement notice not to have been complied with ought to be discharged.’ Ground (b): ‘that the matters alleged in the
notice do not constitute a breach of planning control.’ Further down, in (c), we have: ‘in the case
of a notice which, by virtue of section 87 (3) of this Act, may be served only
within the period of four years from the date of the breach of planning control
to which the notice relates, that that period has elapsed at the date of
service.’ Finally, ground (d) provides:
‘in the case of a notice not falling within paragraph (c) of this subsection,
that the breach of planning control alleged by the notice occurred before the
beginning of 1964.’ It is perfectly
understandable that the appellants should have abandoned ground (d), because
they admitted at an early stage, if not from the outset, that they could not
prove user since before 1964; but what is very relevant in the present instance
is that they also abandoned ground (b).
The way the
argument is put before us today is this: It is said that by 1969, let alone by
the date when the enforcement notice was served, all four of these portions of
the land were in the single occupation either of the appellants or of their
predecessors in title, and that at that time they constituted a single planning
unit, which is the contention before us in this court today. It is said,
therefore, that when the brown land went over to use for caravan display and
sales, whenever that was, it was the change of use in part of a planning unit,
and not in its entirety, the same unit embracing the white, blue and green
land. The next stage in the argument is that since the change of use affecting
the brown land affected only part of the planning unit, then it was for
consideration, as a matter of fact and degree, whether it had created a
material change of use in the whole of the planning unit; and that is a factor
which was never gone into before the inspector, or in the Secretary of State’s
reasons, for the very good reason, I think, that this matter had been abandoned
when ground (b) was withdrawn. When one goes back to ground (b), it is, as I
have already said, that the matters alleged in the notice do not constitute a
breach of planning control. That was the basis upon which the single planning
unit argument would have been based. The argument would have been that having
regard to the fact that the four parts were all constituents of a single
planning unit, the change in the brown land alleged in the third notice did not
constitute a breach of planning control. That very ground was given away, and
that, no doubt, is the reason why the Secretary of State pays no attention to
it in his decision letter.
What is said
now by Mr Dawson on behalf of the appellants is that notwithstanding that this
ground was thrown away at the inquiry, and notwithstanding that no mention of
it appears in the Secretary of State’s decision letter, yet the Secretary of
State’s failure to work out this ground for himself (notwithstanding that it
had been abandoned) and to apply it is an error of law which entitles the
appellants to have the decision sent back for reconsideration by the Secretary
of State. Counsel supports that contention by referring us to the somewhat
abbreviated report of a case called Cheshunt Urban District Council v Minister
of Housing and Local Government [1965] EGD 229. It was a decision of this
court in which, on an issue of material change of use or no, it became relevant
to consider whether the change from selling cars to selling caravans was a
material change of use. Lord Parker, in giving the leading judgment, referred
to this issue and said at p 230:
The Minister
decided that storage and sale of caravans in this case was not a substantially
different use from the storage and sale of cars, and did not amount to a
material change in the use of the land. It was contended for the appellants
that the Minister decided the appeal on a ground that had been withdrawn. He
held that the change from the sale of cars to the sale of caravans did not
constitute or involve development, and that ground was specifically withdrawn
before the inspector. But that argument failed, because although that ground
was withdrawn–for whatever reason–it was plain that it remained a live issue to
the extent to which it was dealt with by the Minister.
Therein is
contained the whole difference between that case and this one. I think that the
Cheshunt case must be regarded as exceptional in any event, but it
wholly differs from the present instance, because there the Minister himself
kept alive that issue because he thought it necessary in order to do justice
and notwithstanding that it had been abandoned by the parties. It is a very
long step from there to say that the Minister must find out for himself a
possible ground for supporting the appellants’ argument, even though there has
been a deliberate withdrawal of that argument before the inspector, and even
though the relevant facts have not been found upon which a consideration of
that argument can depend. It seems to me abundantly clear that the argument now
sought to be put before this court is one which should not be accepted in view
of the history of the matter as I have recounted it, and for my part I would
dismiss the appeal.
MILMO J: I
agree.
WIEN J: I
agree also.
The council
was awarded costs.
