Use commenced before July 1 1948 — Existing use — Use abandoned — Established use certificate — Whether any distinction between existing use and established use — Whether concept of abandonment applies to existing use development
In April 1982
the appellant applied for an established use certificate for ‘winter storage
for showmen and caravan site for showmen’. In October 1982 the local planning
authority. Congleton Borough Council, issued an enforcement notice alleging a
breach of planning control of the land in question to use for the ‘residential
occupation of caravans’. The appellant’s appeals, against the refusal of the
local planning authority to give the certificate and against the enforcement
notice, were dismissed by the Secretary of State for the Environment in April
1984. Appeals against those decisions were dismissed by Mann J (March 12 1987).
The site was
occupied from the early 1940s to 1969 by a travelling circus; in 1964 planning
permission was granted for the temporary use and in 1971 a certificate of
established use was issued for the storage of caravans and circus equipment
during the winter months. The site then remained virtually unoccupied between
1974 and 1981. However, the Secretary of State did not consider that the
evidence established that the use of the site during the currency of the 1964
temporary planning permission included any residential caravan element
independent of that permitted by that permission. It could not be shown that
there was a caravan site use in contravention of planning control: an
established use certificate could not therefore be issued at this stage. The
appellant contended that although the circus use ceased for a number of years,
it was not possible in law to abandon a use that had commenced before July 1
1948, the appointed day: such a use was an existing use and not an established
use.
1. In Pioneer
Aggregates (UK) Ltd v Secretary of State for the Environment [1985]
1 AC 132, the House of Lords decided that a planning permission enured for the
benefit of the land and could not be abandoned. But that case must be
distinguished, as it did not concern either existing or established uses. The
earlier case of Hartley v Minister of Housing and Local Government
[1970] 1 QB 413 decided that a use of land, whether an existing use or an
established use, could be abandoned: see pp 33H and 35H-36C.
2. It could
not be argued that as the planning legislation was a comprehensive code, and
made no express provision for abandonment, the concept had no application; the
introduction of the legislation in 1948 left existing uses outside the control
of the Acts: see p 35H.
3. Section 33
of the Town and Country Planning Act 1971, which provides that planning
permission enures for the benefit of the land and all persons interested in it,
has no application to existing uses: see p 34H.
4. Schedule
24, para 12, to the 1971 Act, which applies section 23(1) of the Act (the
necessity to obtain planning permission for development), only excludes
existing use development from the need for planning permission where such
development is ‘carried out’; it is implicit that the use is a continuing use:
see p 36C.
to in the judgments
Barling
(David W) Ltd v Secretary of State for the
Environment [1980] JPL 594
Hartley v Minister of Housing and Local Government [1970] 1 QB 413;
[1970] 2 WLR 1; [1969] 3 All ER 1658; (1969) 68 LGR 32; 21 P&CR 1; [1970]
EGD 4; 213 EG 31, CA
Pioneer
Aggregates (UK) Ltd v Secretary of State for the
Environment [1985] 1 AC 132; [1984] 3 WLR 32; [1984] 2 All ER 358; (1984)
82 LGR 488; 48 P&CR 95; [1984] EGD 1094; 272 EG 425, [1984] 2 EGLR 183;
[1984] JPL 651, HL
Appeal against
a decision of Mann J
This was an
appeal against a decision of Mann J (March 12 1987) in which he dismissed an
application and appeal against decisions of the Secretary of State for the
Environment to dismiss an appeal against a refusal of planning permission and
to dismiss an appeal against an enforcement notice issued by Congleton Borough
Council.
(instructed by Geoffrey T Smith & Co, of Wolverhampton) appeared for the
appellant.
(instructed by the Treasury Solicitor) appeared for the first respondent, the
Secretary of State for the Environment.
respondent, Congleton Borough Council, did not appear and was not represented.
following judgments were delivered.
STUART-SMITH
LJ: The principal question posed in this appeal is
whether a use of land which existed before the coming into force of the Town
and Country Planning Act 1947 on the appointed day, namely July 1 1948 (an
existing use), can be abandoned, so that resumption of the use constitutes
development for which planning permission is required.
The appeal is
from the judgment of Mann J given on March 12 1987 in which he upheld the
decision of the Secretary of State for the Environment contained in a decision
letter dated April 18 1984 in which the Secretary of State held that, among
other things, the pre-existing use had been abandoned and that its resumption
required planning permission.
There were
before Mann J two matters, the first an application under section 245(1) of the
Town and Country Planning Act 1971 and an appeal under section 246(1) of that
Act. The appellant is Mr Joe White, who has since 1981 had an interest in land
known as the Old Brickworks, Newcastle Road, Brereton. The respondents are the
Secretary of State for the Environment and the Congleton Borough Council. The
borough council are the local planning authority for the area which includes
the Old Brickworks. They did not appear before the judge or before this court.
On April 28
1982 the appellant applied for an established use certificate. The use for
which the certificate was sought was ‘winter storage for showmen and caravan
site for showmen’. The borough council on June 30 1982 refused the application.
The applicant appealed to the Secretary of State, who on April 18 1984
dismissed the appeal. That decision was the subject of the application under
section 245 of the Act of 1971.
On October 27
1982 the borough council issued an enforcement notice. It alleged a breach of
planning control and asserted that the breach was the use of the Old Brickworks
for ‘the residential occupation of caravans’. The steps required to be taken
were the discontinuance of the use ‘for the residential occupation of
caravans’. The appellant appealed to the Secretary of State, who on April 18
1984 dismissed the appeal but amended the enforcement notice. That decision was
the subject of the appeal under section 246(1) of the Act of 1971.
It is common
ground that the fate of both the application and the appeal is governed by the
same considerations.
I can take the
facts from the judgment of the learned judge. The appellant’s wish is that the
site should, during the winter months, accommodate showground equipment and
caravans; most importantly, caravans occupied by people who would maintain the
machinery of the showground equipment and prevent damage by intruders who could
cause damage either deliberately or accidentally; it is those caravans which
occasion the present dispute.
There was an
inquiry held on June 21 1983 by Mr N Barclay and on July 4 1983 Mr Barclay made
his report to the Secretary of State. He made findings of fact which were
adopted by the Secretary of State and recorded in the decision letter. Para 6
of that letter reads:
The Inspector
found as facts, which are accepted, that, originally a brickworks, the appeal
site was occupied from the early 1940s to 1969 by a travelling circus and, on
its departure to new quarters nearby, was left vacant until 1970 when motor
vehicles were stored but later removed as a result of enforcement action in
December 1970 alleging the dismantling and storage of vehicles and parts of
vehicles. In 1971 an established use certificate was granted for the storage of
caravans and circus equipment during the winter months, stating that the use
existed on the site on 4 June 1971. In 1972 a residential caravan was stationed
on the land and occupied as such for about 18 months: when this was removed in
1974 the premises remained vacant, except for some grazing and occasional
unauthorised overnight parking of touring caravans, for approximately 7 years.
In September 1981 the site was occupied by your client with his group of
residential caravans, cars, lorries and trailers: they departed in February
1982 and returned with an augmented group in about October 1982, which left
again in the spring of 1983 leaving one residential caravan and a box bodied
van on the land. From the mid-1950s to the late 1970s the site was the subject
of various planning applications for residential development, the stationing of
caravans and commercial uses: all were refused, except that in 1964 permission
was granted to the circus owners for the stationing of two residential caravans
on the land for five years to December 1968. The permission limited the
occupation of the caravans to the applicant, who was one of the circus
proprietors, and persons employed by him: this person was a caretaker.
The critical
paragraph in the decision letter is para 8, which reads:
Taking first
the use of the site during the 1960s, whilst it is accepted that the site was
used for the stationing of residential caravans during that period until the
circus moved elsewhere in 1969, it is not considered that the evidence
establishes that the circus’s use of the site during the currency of the
temporary permission granted in 1964 included any residential caravan element
independent of that permitted by that permission. It is therefore considered
that at least insofar as your client’s claim to an established use certificate
is in respect of the use of the site as a winter caravan site for showmen, it
must fail on the basis that it has not been shown that during the period
1964-1969 there was a caravan site use of the site in contravention of planning
control (see Bolivian and General Tin Trust v Secretary of State for
the Environment [1972] 1 WLR 1481). It is also considered that even if it
were to be accepted that immediately prior to the departure of the circus in
1969 the site did have an established seasonal use extending not only to the
storage of circus equipment but also including a residential element, having
regard to the evidence as to the use of the site from 1969 onwards it can only
be concluded that when in 1981 your client moved in, there was then no dormant
winter quarters use available for him to resume. Whilst the evidence as to the
history of the site from 1969 to 1981 is in some respects rather sketchy, it is
considered that as against the pre-1969 use by the circus there would have been
a material change of use with the introduction of the use for vehicle breaking
and storage enforced against in 1970, and that the introduction of that use
would rule out any possible claim to a right to resume the pre-1969
‘circus’ use on the basis that that use had not been abandoned (see Young
v Secretary of State for the Environment and London Borough of Bexley,
CA, [1983] JPL 465). Additionally, there would appear to have been a further
material change of use of the site with the introduction in circa 1972 of a
residential caravan site use by Mr Barker’s father-in-law. Further, even if
notwithstanding these changes of use it remained relevant to consider whether
the ‘circus’ use, a use discontinued on the ground in 1969 when the circus
moved out, had nevertheless not been abandoned by 1981, having regard to the
length of the period during which that use was not physically being carried on,
to the intervening uses, and to the period from 1974-1981 when the site was
substantially vacant, it is considered reasonable to conclude that by 1981 that
use had been abandoned.
The learned
judge analysed the Secretary of State’s reasons into four as to why a
preappointed-day use had no materiality in 1981. (1) Prior to 1969, when the
circus departed elsewhere, there was no residential use attributable to the use
for storage as opposed to a use attributable to the temporary planning
permission granted in 1964. (2) Even if there had been such a use, then (a)
vehicle processing was a material change of use whose introduction would rule
out any reversion to the circus use; (b) even if that was not the case, there
was in 1972 the material change of use when the site was devoted to a
residential caravan use which was a material change of use whose introduction
would rule out any reversion to the circus use; (c) in any event, it was
reasonable to conclude that the circus use had been abandoned by 1981.
The ground
(2)(a) was not pursued by or on behalf of the Secretary of State before the
learned judge and has not been pursued before us. The learned judge upheld the
decision of the Secretary of State on each of the other three grounds. But the
argument before us is concentrated primarily on the ground in para (2)(c).
Accordingly, I
propose to consider this ground first. Mr Payton’s submission is that there can
be no such thing as abandonment of an existing use. It is by no means clear
whether this point was argued before the learned judge or whether the argument
was in fact confined to the submission that on the facts the use had not been
abandoned. The judge clearly thought that the latter was the issue and the
notice of motion supports this view. Neither counsel who appeared before us was
in the court below. Nevertheless, the point is raised in the notice of appeal,
and Mr Jay on behalf of the Secretary of State took no point on it.
Mr Payton
submitted that, since the decision of the House of Lords in Pioneer
Aggregates (UK) Ltd v Secretary of State for the Environment [1985]
1 AC 132, there could be no such thing as abandonment of an existing use. To
examine this submission it is necessary first to consider the case of Hartley
v Minister of Housing and Local Government [1970] 1 QB 413, because it
is the case upon which the judge founded his decision, it is binding upon us
and Mr Jay submits that it decides the point in this case. The facts were that
in 1961 F bought a site, part of which had been used as a petrol filling
station and another part for the display and sale of cars. A few months later F
became ill and died. His widow and young son carried on the petrol filling
station business but gave up the sale of cars. In 1965 the appellant bought the
site and used it both as a filling station and for the sale of cars. In 1967
the planning authority served an enforcement notice on him, alleging that the
use of the site for display and sale of cars constituted development without
grant of permission and requiring him to discontinue that use. The appellant
appealed to the minister, who upheld the enforcement notice; he found that by
1965, if not in 1961, the use for car sales had been abandoned, and the use of
the site was that of a petrol filling station only, and consequently the use
for display
to the Divisional Court and Court of Appeal were dismissed. It is not entirely
clear from the facts whether the use for display and sale of cars was an
existing use, ie one that existed before July 1 1948, or was an established
use, ie one that started after that date but was immune from enforcement
because no notice had been served within four years. The facts as they appear
in the report of the case before the Divisional Court suggest that it was the
former (see [1969] 2 QB 46 at p 52G). But it is clear that the Court of Appeal
drew no distinction between the two for the purpose of the case and, as will
appear, the House of Lords in the Pioneer Aggregates case treated it as
an existing use case.
Mr Glidewell
QC (as he then was) argued that where there was a use of land which was either
an existing use on the appointed day or an established use because it had
continued for more than four years before service of the enforcement notice,
its use could not by mere cessation be abandoned such as to make its resumption
development. Similarly, where there had been dual use, followed by single use,
and then a resumption of that use, there was no abandonment of the second use
by ceasing it for a time. This argument was rejected; at p 420E Lord Denning MR
said:
I think that
when a man ceases to use a site for a particular purpose and lets it remain
unused for a considerable time, then the proper inference may be that he has
abandoned the former use. Once abandoned, he cannot start to use the site
again, unless he gets planning permission: and this is so, even though the new
use is the same as the previous one.
The material
time is when he starts on the new use. You have to ask at that time whether
there was then a material change of use — from a non-use into a positive use.
Take this very case. In 1965 Mr Hartley started to use the site for selling
cars. That was a new use. It was a change from a non-use into a use for selling
cars. It needs planning permission — unless Mr Hartley can say that the
previous use was never abandoned.
The question
in all such cases is simply this. Has the cessation of use (followed by
non-use) been merely temporary, or did it amount to an abandonment? If it was merely temporary, the previous use
can be resumed without planning permission being obtained. If it amounted to
abandonment, it cannot be resumed unless planning permission is obtained. I
said as much in Webber v Minister of Housing and Local Government [1968]
1 WLR 29, 33 and in Miller (TA) Ltd v Minister of Housing and Local
Government [1968] 1 WLR 992, 996. Abandonment depends on the circumstances.
If the land has remained unused for a considerable time, in such circumstances
that a reasonable man might conclude that the previous use had been abandoned,
then the tribunal may hold it to have been abandoned.
Widgery LJ at
p 421 said:
It has been
suggested in the courts before, and it seems to me that it is now time to reach
a view upon it, that it is perfectly feasible in this context to describe a use
as having been abandoned when one means that it has not merely been suspended
for a short and determined period, but has ceased with no intention to resume
it at any particular time. It is perfectly true, as Mr Glidewell says, that the
word ‘abandonment’ does not appear in the legislation. We are not concerned
with the legislation at this stage, but merely with the facts of the matter. I
cannot think of a better word to describe a situation in which the landowner
has stopped the activities constituting the use not merely for a temporary
period, but with no view to their being resumed. If that has happened, then as
a matter of fact the use has ceased.
In Pioneer
Aggregates (UK) Ltd v Secretary of State for the Environment [1985]
1 AC 132 the House of Lords held that a grant of planning permission enured for
the benefit of the land and all persons for the time being interested in it and
consequently a valid planning permission capable of implementation
could not be abandoned by the conduct of the owner or occupier of the land for
the time being. The case concerned grants of planning permission and not
existing or established uses of land. Lord Scarman, with whose opinion the
other learned lords agreed, gave three main reasons for this conclusion. The
first is what I might call the policy reason. At p 139D he said:
If the board
is right, a valid planning permission can be abandoned by the conduct of a
landowner or occupier of land; and the effect of the party’s conduct will be to
bind all persons interested in the land now or hereafter whether or not they
have notice of the abandonment. The planning permission would be entered in a
public register; but not so its abandonment. Nor would it be possible by
inspection of the land to discover whether the permission has been abandoned,
for the absence of implementation of a planning permission is no evidence that
a valid permission does not exist. It is perhaps not surprising that no trace of
any such rule can be found in the planning legislation. If there be such a
rule, it has been imported into the planning law by judicial decision.
As was pointed
out in argument by Sir John Megaw, and accepted by Mr Payton, the present case
is the antithesis of this. The only way that a stranger would know if there is
an existing use is if it is continuing. No doubt temporary cessations will not
destroy the existing use; but, if it has not been exercised for many years, it
would be a serious trap for those purchasing neighbouring land if they were to
find that a long extinct use was resurrected simply on the ground that it had
existed before July 1 1948.
The second
ground was that the Town and Country Planning Acts were a comprehensive code
and there was no provision for abandonment. At p 141 C Lord Scarman said:
Parliament
has provided a comprehensive code of planning control. It is currently to be
found in the Town and Country Planning Act 1971, as subsequently amended. Part
II of the Act of 1971 imposes upon local planning authorities the duty of
preparing and submitting to the Minister development plans formulating their
policy and their general proposals for the development and use of land in their
area. Widespread publicity has to be given to the preparation or alteration of
such plans. There is provision for local public inquiries in certain specified
circumstances. Part III imposes general planning control. Section 23(1)
declares the rule: subject to the provisions of the section, planning
permission is required for the development of land. There are certain
exceptions, of which the most notable are rights in connection with the use of
land existing prior to certain specified dates related to the introduction of
planning control (commonly called ‘existing use rights’); sections 23 and 94 of
the Act. Section 29 deals with the grant of planning permission: note that the
local planning authority must have regard to the provisions of the development
plan. In determining an application for permission the authority must take into
account ‘any representations’ made to them within the time specified in the
section. And there are extensive provisions for giving publicity to
applications: sections 26 to 28.
In my judgment,
this reason has no bearing on the present problem, since it is common ground
that existing use cases are outside the control of the Acts, as Lord Scarman
states in the passage quoted.
Finally,
reliance was placed on section 33(1) of the Town and Country Planning Act 1971,
which provides that planning permission to develop land shall enure for the
benefit of the land and all persons for the time being interested in it. This
ground also has no application to the present case.
Mr Payton
places reliance on the following passage in Lord Scarman’s speech at p 142G:
Viewed as a
question of principle, therefore, the introduction into the planning law of a
doctrine of abandonment by election of the landowner (or occupier) cannot, in
my judgment, be justified. It would lead to uncertainty and confusion in the
law, and there is no need for it. There is nothing in the legislation to
encourage the view that the courts should import into the planning law such a
rule — recognised though it is in many branches of the private law (eg the law
of easements, the commercial law, and the law of trade marks) as Megarry J in
his learned, though obiter, discussion of the principle has shown in Slough
Estates Ltd v Slough Borough Council (No 2), 19 P&CR 326.
But, in my
judgment, that passage must be read in the context of the case, namely that it
was concerned with planning permission. That this is so is made clear from what
follows immediately. At p 143A Lord Scarman said:
There is,
however, quite apart from the Slough case a number of reported judicial
decisions which, upon first sight and before analysis, might seem to suggest
that there is room in the planning law for a principle, or an exception,
allowing the extinguishment of a planning permission by abandonment. Three
classes of case can be identified. The first class is concerned not with
planning permission but with existing use. In Hartley v Minister of
Housing and Local Government [1970] 1 QB 413 the Court of Appeal (Lord
Denning MR, Widgery and Cross LJJ) held that the Minister as the tribunal of
fact was entitled to find on the evidence that the resumption of a car sales
use on a site where previously there had been two uses, namely car sales and a
petrol-filling station, was after a cessation of the car sales use for some
four years a material change of use and so properly the subject of an
enforcement notice. The Minister, the court held, was entitled to find as a
fact that the previous use had ceased, having been abandoned by the owner or
occupier of the land. This was not a case of abandoning a planning permission.
There was in fact no existing use of the land for car sales because the use had
ceased years ago. An existing use, which has been deliberately ended before a
resumption arises, is not existing at the date of resumption: accordingly, the
resumption was a material change of use, and so required planning permission.
The issue was one of fact, as Widgery LJ emphasised in his judgment. And it had
nothing whatever to do with the extinguishment of a planning permission.
Widgery LJ in the course of his judgment made a significant comment, at p 422:
‘When the car sales use ceased in 1961
there could be no question of a material change of use on which an enforcement
notice could be founded in reliance on that fact alone.’
The use no
longer existing, the change back four years later was the material change of
use on which the notice could be founded.
I cannot
accept Mr Payton’s suggestion that Lord Scarman confused existing uses and
established uses and that he meant to refer to the latter. Quite apart from the
extreme improbability of such a thing, it is clear that Lord Scarman had well
in mind what existing uses were, since he defined the term at p 141E-F. In this
passage, in my judgment, Lord Scarman plainly treated Hartley’s case as
an existing use case and approved the decision.
Mr Payton
accepts that Hartley‘s case was rightly decided on its facts, but he
submits that it can be distinguished. He further submits that, in the light of
Lord Scarman’s opinion, the exceptions to the rule that the doctrine of abandonment
has no place in planning law must be confined to the three expressly dealt with
in Lord Scarman’s speech, of which Hartley’s case is the only relevant
one.
The grounds
upon which he seeks to distinguish Hartley’s case are, first, that it
was a case of established use and not existing use. As I have already said,
the facts are not entirely clear; what is clear is that the Court of Appeal
drew no distinction between the two for this purpose and Lord Scarman treated
the case as an existing use case. There is nothing in this point.
Second, he
submits that there may be an abandonment of one of two existing uses, so that
subsequent resumption of one may be a material change of use, particularly if
the use that continued throughout is inconsistent with the discontinued use. He
submits that there is no such thing as a nil use. I cannot see any logical
basis for this submission. It certainly forms no part of the reasoning of the
Court of Appeal in Hartley’s case and is quite inconsistent with the
last-quoted passage from Lord Scarman’s speech in the Pioneer Aggregates
case. It is also worthy of note that in argument in Hartley’s case Mr
Glidewell QC’s alternative argument was that, if there could be abandonment of
an existing use, it was limited to cases where there was a single use,
cessation amounting to a nil use.
Mr Payton’s
final argument was based on Schedule 24, para 12, to the Town and Country
Planning Act 1971, which provides:
Subsection
(1) of section 23 of this Act applies (subject to the provisions of that
section) to the carrying out of development whether before or after the
commencement of this Act, except that it does not apply to development carried
out on or before the appointed day.
On a literal
construction of this paragraph, he submitted that, once an existing use was
established, it was for all time outside the ambit of the planning Acts, and
therefore a resumption of such a use after cessation does not fall within
section 23(1) of the Act at all. But it is implicit in the words ‘carried out’,
at least so far as a use of land is concerned, that it is a continuing use. And
this is inherent in the decision in Hartley’s case.
For these
reasons, in my judgment, the principal ground of appeal fails.
The second
reason why the learned judge upheld the Secretary of State’s decision was para
2(b) in his analysis, namely that in 1972 there had been a material change of
use when the site was devoted to a residential caravan site use.
The evidence
was that from some time in 1972 there had been a residential caravan on the
site for 18 months, occupied by the then owner’s father-in-law. Mr Payton
submits that, first of all, this was not a separate reason found by the
Secretary of State but merely part and parcel of, and bound up with, the
finding of abandonment. I do not accept this; in my judgment, the judge’s
analysis of the reasoning in para 8 of the decision letter was correct. Second,
he submits that the occupation of one caravan on the site, which was more than
an acre, was not inconsistent with the existing use of winter quarters for
showground equipment coupled with caravans occupied by those who looked after
them. But I accept Mr Jay’s submission that, if indeed there was a use of the
land for caravans occupied by those who looked after the equipment, which was
over and above and independent of the limited permission in that behalf, it was
ancillary to the main use, namely the storing of the equipment. If the
principal use is discontinued, the ancillary use cannot survive as the sole or
principal use without planning permission. David W Barling Ltd v Secretary
of State for the Environment and Swale District Council [1980] JPL 594.
In any event,
this appears to me to be a question of fact and there was material upon which
the Secretary of State could reach his conclusion. This court cannot substitute
its own view, even if it differed, unless it can be shown on well-known
principles that the Secretary of State has erred. Understandably, Mr Payton has
not attempted this task, but he submits that the case should be remitted to the
Secretary of State for reconsideration. Since I reject Mr Payton’s first
submission under this head, I can find no reason to
There has been
little or no argument addressed to us on the third ground, numbered 1 in the
judge’s analysis, upon which both the Secretary of State and the judge rejected
the appellant’s case, namely that prior to 1969, when the circus departed
elsewhere, there was no residential use attributable to the use for storage as
opposed to a use attributable to the temporary planning permission granted in
1964. But, even if this ground were wrong, and I am certainly not prepared to
say that it was, I would dismiss the appeal on the other two grounds.
SIR JOHN
MEGAW: I agree that this appeal should be
dismissed. I agree fully with the reasons given by Stuart-Smith LJ.
MUSTILL LJ: I also agree that this appeal should be dismissed.
The appeal
was dismissed. No order made for costs save legal aid taxation. Leave to appeal
to the House of Lords was refused.
