Enforcement notice — Material change of use — Inspector quashed notice — Alleged breach of planning control incorrect — Failure to comply with a condition appropriate — Findings of fact — Whether findings could be subject of issue estoppel — Whether an essential conclusion to finding — Whether owner may appeal decision to quash notice
The second
respondents, North Warwickshire Borough Council, issued an enforcement in
respect of land owned by the appellant at Common Lane, Corley. The notice
alleged a material change of use of the land without planning permission. The
appellant appealed on grounds (a), (b) and (e) of section
88(2) of the Town and Country Planning Act 1971. The inspector quashed the
notice because, in his view, the breach of planning control alleged in the
notice was incorrect as it referred to a material change of use, without the
grant of planning permission, instead of a failure to comply with a condition
subject to which permission had been granted. The inspector considered that the
defect went to the root of the notice and that to attempt to redraft it to put
it in order would exceed his powers in section 88A(2) of the 1971 Act. The
inspector also considered the history of the land and certain planning
conditions which were imposed on a planning permission which had been granted
on appeal against an earlier enforcement notice. He summarised the position and
stated that the consequences of his conclusion were twofold: that there had
been a breach of planning control and that the appeal under ground (b),
that the matters alleged in the notice do not constitute a breach of planning
control, must fail.
The appellant
submitted that once the inspector had quashed the enforcement notice, he had no
power to make a finding that there had been a breach of planning control.
Further, that such a finding might give rise to an issue estoppel against the
appellant at some further stage in other proceedings relating to the land under
the 1971 Act. His Honour Judge Marder QC had dismissed the appellant’s appeal.
The inspector
was fully entitled to make findings on the matters which had been argued before
him as part of the explanation of his decision whether the findings are
essential to his decision. He was entitled to make comments on ground (b),
whether they were essential to his decision: see p 85D-G.
Applying Thrasyvoulou
v Secretary of State for the Environment [1990] 2 PLR 69, it is
necessary that any finding which is supposed to give rise to issue estoppel was
an essential foundation for the conclusion and not merely incidental or
ancillary to the decision of an inspector. In the present case the inspector’s
findings on ground (b) were merely ancillary and not the essential
foundation for his conclusion: see p 86B.
The
respondents’ objection, that there can be no appeal by the appellant against a
decision which was wholly in favour of the appellant was made out: the
enforcement notice was quashed: see pp 86-87.
to in the judgments
Button v Jenkins [1975] 3 All ER 585; (1975) 74 LGR 48, DC
Lake v Lake [1955] P 336; [1955] 3 WLR 145; [1955] 2 All ER 538,
CA
Thrasyvoulou v Secretary of State for the Environment [1990] 2 WLR 1;
[1990] 13 EG 69, [1990] 1 EGLR 197; [1990] 2 PLR 69, HL
Appeal against
decision of His Honour Judge Marder QC
This was an
appeal against a decision of His Honour Judge Marder QC, sitting as a deputy
High Court judge, who had dismissed an appeal against a decision of the
Secretary of State for the Environment, by his inspector, quashing an
enforcement notice issued by the second respondents, North Warwickshire Borough
Council.
(instructed by Clinton Davis Cushing & Kelly) appeared for the appellant,
Colin Young.
Haar (instructed by the Treasury Solicitor) appeared for the first respondent,
the Secretary of State for the Environment.
respondents, the North Warwickshire Borough Council, did not appear and were
not represented.
following judgments were delivered.
DILLON LJ: This is an appeal brought by Mr Colin William Young, by leave of the
judge, against a decision of His Honour Judge Marder QC, sitting as a deputy
judge of the High Court, dated September 19 1988. By his order the judge
dismissed an appeal by the appellant under section 246 of the Town and Country
Planning Act 1971 against a decision of an inspector in respect of certain
enforcement notices after a public inquiry held by the inspector on January 21
and February 25 1988.
The matter
concerns land at Common Lane, Corley, which is within an area of green belt
between Coventry and Birmingham. The inspector’s decision letter is dated May
10 1988.
There were
initially four enforcement notices, all issued on August 3 1987. They were
referred to as notices A, B, C and D. We are concerned only with notice B. The
appellant appealed against all four, but notice A went out of the proceedings
at the public inquiry, when it appeared that the appellant had no interest in
the land to which it related and therefore no locus, and it was held
that there was no appeal. Notices C and D were upheld by the inspector. They
concerned buildings erected on the land. It was held that the construction of
one building had been in breach of planning control and the retention of
another had been in breach of a planning condition. We are not concerned with
those matters.
Notice B was
an enforcement notice against a change of use of the land. There was an appeal
by the present appellant on various of the grounds permissible for appeal under
the Act, in particular grounds (a), (b) and (e). The
grounds of appeal are set out in section 88(2) of the Town and Country Planning
Act 1971. Ground (a) is ‘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) is ‘that the matters
alleged in the enforcement notice do not constitute a breach of planning
control’. Ground (e) is that ‘in the case of [an enforcement] notice not
falling within paragraph (d) . . . that the breach of planning control
alleged by the notice occurred before the beginning of 1964′.
In his
decision letter, in a section headed ‘Formal Decision’, in relation to notice B
the inspector said at para 36: ‘For reasons given above, and in exercise of the
powers transferred to me, I hereby direct that the notice be quashed’. When his
reasons are looked at it appears that the reason for quashing the notice was
that, in the view of the inspector, the breach of planning control alleged in
the notice was incorrect as it referred to a material change of use, without
the grant of planning permission, instead of a failure to comply with a
condition subject to which permission had been granted. The inspector
considered that the defect went to the root of the notice and that to attempt
to redraft it to put it in order would exceed the powers available to the
inspector under section 88A(2) of the 1971 Act as amended.
Section 88A
provides by subsections (1) and (2) as follows:
(1) On the determination of an appeal under
section 88 of this Act, the Secretary of State shall give directions for giving
effect to the determination, including, where appropriate, directions for
quashing the enforcement notice or for varying its terms.
(2) On such an appeal the Secretary of State may
correct any informality, defect or error in the enforcement notice, or give
directions for varying its terms, if he is satisfied that the correction or
variation can be made without injustice to the appellant or to the local
planning authority.
It would seem
that subsections (1) and (2) provide, first, that the consequences of a
successful appeal are the quashing of the enforcement notice, if not a
variation of its terms, and, second, that the inspector was justified by
subsection (2) in quashing, rather than varying the terms of, the enforcement
notice.
The findings
in relation to notice B go further than the mere statement of that ground.
There is a group of paragraphs in relation to notice B, from para 14 to para
19, in which the inspector considers the history of the land and certain
planning conditions which were imposed on a planning permission which had been
granted on an appeal against an earlier enforcement notice. He sets out various
arguments in relation to what was done on the land pursuant to that permission
and expresses his views on the facts. In para 19 he summarises the position as
follows:
The
consequences of my conclusion are twofold. One, that there has been a breach of
planning control and accordingly your client’s ground (b) appeal must
fail.
He then set out
the defect in the enforcement notice, which he was not prepared to correct,
with the result, as he stated: ‘I shall therefore quash the notice’. He then
said: ‘Consequently the appeals on grounds (e) and (a) did not
fall to be considered’.
It seems to me
that the question whether ground (b) — that the matters alleged in the
notice did not constitute a breach of planning control — was made out or not
is, in the context of this case, a matter of fact and not of law.
It is said in
the notice of appeal to this court that the decision of the learned judge
should be set aside and that enforcement notice B should be remitted (that may
mean that the appeal against the enforcement notice should be remitted) to the
Secretary of State for rehearing and determination in accordance with the opinion
of this court. It is claimed that it was unnecessary for the inspector to hold
that the appeal failed under ground (b) in order to reach the conclusion
that the description of what it was sought to enforce in the enforcement notice
was incorrect. It is said that, having quashed the notice, the inspector had no
power to make a finding that there had been a breach of planning control and
that this would create at any rate a risk of serious injustice to the
appellant. It was said in the grounds of appeal to the court below that the
inspector erred in law by making a finding in para 19 of the decision letter in
respect of ground (b), notwithstanding that he decided to quash notice B
on other grounds. The complaint is of course particularly against the sentence
in para 19 that ‘there has been a breach of planning control and accordingly
your client’s ground (b) appeal must fail’.
I take the
view that the inspector was fully entitled to make findings on the matters
which had been argued before him as part of his explanation of his decision
whether or not the findings are essential to his decision. That often happens.
Part of the process of open justice is that a judgment or a decision letter
should explain the process by which the decider’s mind has worked and his
decision has been reached. Obviously any tribunal should be careful not to make
findings on matters which are irrelevant to their decision, if the findings may
have serious adverse consequences to the party concerned, which are not
reflected in any adverse decision. There can be a variety of reasons why a
judge may decide matters which are not strictly necessary for him to decide,
besides that which I have indicated. For instance, a judge sitting at first
instance may find facts which it is not necessary for him to find on the view
he takes of the law, in case an appellate tribunal should hold that he was
wrong in law, and there may be, if he has not found enough facts, the necessity
for a retrial. That is not this case. Also the courts are concerned with the
evolution of the law and it is often helpful to indicate why in a factual
context a particular ground, or contention of law, is not acceptable, even
though the case of the person who put that ground forward may be acceptable and
may succeed on other grounds. I take the view that the inspector was fully
entitled to make his comments in relation to ground (b), whether or not
they were essential to his decision.
The appellant
is afraid that he is saddled with findings which may give rise to a plea of issue
estoppel against him at some further stage in other proceedings in relation to
this land under the 1971 Act.
The question
of issue estoppel, in relation to a planning appeal, has recently been
considered by the House of Lords in Thrasyvoulou v Secretary of State
for the Environment [1990] 2 WLR 1*. Lord Bridge at the end of his speech
(at p 16 C-D) said on the facts of that case that in his opinion the local
planning authority were by then estopped from asserting that there had been a
material
made by the first planning inspector, which was not merely incidental or
ancillary to his decision but was an essential foundation for his conclusion
that no breach of planning control was involved in the use being made of the
structure which was the subject of the first notice. If that is a comprehensive
statement of the law and to found a plea of issue estoppel it is necessary that
the finding which is supposed to give rise to the estoppel was an essential
foundation for the conclusion and not merely incidental or ancillary to the
decision, I would regard the findings of the inspector in the present case in
relation to ground (b) as merely ancillary and not the essential
foundation for his conclusion.
*Editor’s
note: Also reported at p 69 supra.
It is urged
for the Secretary of State that the appeal is misconceived, as the decision of
the inspector on notice B was in the appellant’s favour. The notice was
quashed, which was precisely what the appellant wanted. Mr Ter Haar referred us
to the general rule in civil proceedings which is stated in Lake v Lake
[1955] P 336. I refer in particular to a short passage in the judgment of
Hodson LJ at pp 346-347:
it is only
dealing with the formal order and not with the reasons for the decision, which
may, in many cases (especially where, as here, alternative defences are put
forward) lead to a successful defendant finding himself or herself in the
position of having won a case, and having had matters decided against him or
against her about which some feeling of dissatisfaction may remain.
Nevertheless, it does not follow that because the judge, in arriving at his
conclusion, has determined those matters in that way, there is an appealable
issue. That, I think, is this case. There was no slip in the order and there is
no appeal against the reasons given by the judge before making the order.
Of course it is
fundamental each time to look to see what exactly has been decided. But in the
present case the order or formal decision is merely that the notice be quashed.
The appeal is
brought under section 246 of the 1971 Act. That provides by subsection (1):
(1) Where the Secretary of State gives a decision
in proceedings on an appeal under Part V of this Act against —
(a) an enforcement notice; or
(b) a listed building enforcement notice,
the appellant
or the local planning authority or any other person having an interest in the
land to which the notice relates may, according as rules of court may provide,
either appeal to the High Court against the decision on a point of law . . .
There is an
alternative, requiring the Secretary of State to state a case for the opinion
of the High Court, which it is unnecessary to consider in this case. There can
be no appeal on a mere ground of fact.
Subsection (5)
of section 246 provides:
(5) In this section ‘decision’ includes a
direction or order, and references to the giving of a decision shall be
construed accordingly.
Again, the
decision to my mind is merely the quashing of enforcement notice B.
Mr Payton
relies on the difference in wording between section 246 and section 245 which
gives a right to make an application to the High Court under the section if a
person is aggrieved by an order to which the section applies or by an action on
the part of the Secretary of State to which the section applies. I apprehend
that the difference in wording is probably due to the fact that the procedure
under section 245 is not put as a procedure on appeal but is a
on the part of the Secretary of State; a much wider range than section 246
applies to. That is apparent from subsection (3) of section 245 and subsections
(2) and (3) of section 242 there mentioned. I find it difficult to see,
however, that a person can be aggrieved by a decision which is completely in
his favour and gives him what he was asking for. Again it must be a question of
seeing what the decision is and to that I have already referred in its
application to the present case.
Mr Payton also
referred to the decision of a divisional court in the case of Button v Jenkins
[1975] 3 All ER 585. That decision is not to be doubted on the mere ground of
the eminence of counsel for the Department of the Environment, who failed. It
was a case in which the defendant was appealing against a conviction by
magistrates for failing to comply with an enforcement notice. The defendant had
failed to challenge an earlier decision of the Secretary of State that his
planning appeal against the enforcement notice had lapsed. The crux of that is
that the decision which the defendant had failed to challenge was a decision
adverse to the defendant, and he could have appealed against it, but had not.
The case is therefore clearly distinguishable from the present case and I do
not find it of assistance.
In my
judgment, this appeal is misconceived on both grounds: first, that the
inspector was entitled to say what he did in his decision letter, and in
particular in para 19; and, second, that in the circumstances of this case the
objection by the respondents that there can be no appeal against a decision
which was wholly in favour of the appellant is fully made out.
I would dismiss
the appeal.
WOOLF LJ: I agree that this appeal should be dismissed. I am concerned,
however, that it could result in this appeal being construed as having a wider
effect than I would intend.
The relevant
statutory provisions have been referred to by my lord in the course of his
judgment, apart from one provision to which I must make reference hereafter.
There can be no doubt, in my view, that the inspector was entitled to come to
the decision that the enforcement notice should be quashed. Furthermore, in my
view he was entitled to come to the conclusion (I use the word ‘conclusion’
advisedly) that there had been a breach of planning control and that
accordingly the appellant’s appeal on ground (b) must fail.
The inspector
had before him an appeal on three grounds, which are set out in section 88
subsection (2)(a), (b) and (e). It would perhaps have been
appropriate had he also had before him an appeal which relied upon section
88(2)(c) — that the breach of planning control alleged in the notice had
not taken place. As I understand the decision of the inspector, his conclusion
was that there had been a breach of planning control, but that the breach of
planning control was not that alleged in the enforcement notice, because the
enforcement notice failed to allege, as it should have done, that there had
been non-compliance with the condition contained in the planning permission
which the inspector found that the appellant had implemented and which required
the discontinuance of the use in question prior to the service of the
enforcement notice.
The problem
that arises is in relation to the extent of the High Court jurisdiction under
section 246 of the 1971 Act. Dillon LJ has already set out the relevant
provisions of that section and it is not necessary to repeat them. I would,
however, draw attention to the fact that the opening words of subsection (1)
refer to a situation where the Secretary of State gives a decision in
proceedings. Subsequently in the same subsection there is a provision that
there may be an appeal to the High Court against the decision on
a point of
back to a decision in proceedings on appeal under Part V of the Act.
I would also
take the view that it is the intention of Parliament that an appeal under
section 246 was intended to enable those who would be adversely affected by a
decision which was wrong in law to appeal. It is to be noted that subsection
(5), in referring to what is a decision, states what is included in a decision
but does not exhaustively define a decision. That may be important in cases
other than that which directly arises for consideration by this court on the
present appeal. It may be important, for example (and this is an example upon
which Mr Payton relied in the course of argument), because of the rights to
compensation which a person has where a stop notice is served but an
enforcement notice, which resulted in that stop notice being served, is quashed
by the court.
In subsection
(2) of section 177 it is provided that there should be an entitlement to
compensation, inter alia, where an enforcement notice is quashed on
grounds other than those mentioned in para (a) of section 88(2) of the
1971 Act. The effect of that provision is therefore to give a person who has
had a stop notice served upon him a right to compensation as long as the
enforcement notice is quashed on grounds other than the grant of planning
permission for the development to which the notice relates.
Mr Payton in
his submissions pointed out that there could be a situation where there are
various grounds of appeal, one of which being that there has been no breach of
planning control: the inspector rejects that ground but, having granted
planning permission, he quashes the enforcement notice. Mr Payton contends that
where that happens it cannot be the intention of Parliament that if there is an
error of law a person should be deprived of his right to compensation because
he cannot challenge the decision of the inspector on behalf of the Secretary of
State in the High Court because the inspector has quashed the enforcement
notice, not on the ground of appeal on which the appellant would primarily rely
but on the ground that planning permission should be granted. Substantial
compensation may be payable under section 177 and I can see that a result could
be brought about where if a person has no right of appeal in such a situation
this could lead to injustice.
Again, under
section 88B, which sets out additional powers of the Secretary of State or an
inspector where the appeal is determined by an inspector, on his behalf, it is
provided that on the determination of an appeal under section 88B of the Act
the Secretary of State may ‘(c) determine any purpose for which the land
may, in circumstances obtaining at the time of determination, be lawfully used,
having regard to any past use of it and any planning permission relating to
it’. It occurs to me that there could be a situation where the inspector or the
Secretary of State upholds an enforcement notice but in the course of doing so
makes a determination under section 88B(1)(c) that a particular use is
lawful. A planning authority may wish to challenge that part of the decision of
the inspector or the Secretary of State on the basis of an error of law, and it
seems to me that it would be unhappy if a conclusion were to be reached by this
court which prevented the planning authority challenging that determination
because of the language of section 246.
In addition,
although I do not dissent from what Dillon LJ has said about the recent
decision in the House of Lords in the Thrasyvoulou case, on the facts of
this particular case it must now be recognised that, having regard to what the
House of Lords concluded in Thrasyvoulou as to the relevance of estoppel
in this area of the law, the power of appeal against an enforcement notice
under section 246 is going to be of greater significance than it was hitherto.
The result of the House of Lords’ decision will have to be worked out
over the coming years and the full consequences of that decision will be
appreciated only as a result of what happens before the courts hereafter. All
these matters appear to me to make it particularly important that this court
should not, with regard to section 246, say anything which prevents an appeal
in appropriate circumstances.
On the facts
of this case I am satisfied that there was no error of law by the inspector.
That being so, there was no possible basis upon which an appeal could succeed.
However, I
would not like to base my decision on a determination that where there is a
ground of appeal raised, and where the inspector or the Secretary of State
deals with that ground of appeal in coming to his determination under section
88 of the Act, there cannot be an appeal against ‘that decision’ merely because
there are other grounds for the decision which are favourable to the party who
wishes to appeal. It seems to me that there is considerable force in the
argument advanced by Mr Payton to suggest that there can be more than one
ground of decision and, because there can be more than one ground of decision,
it can be said for the purposes of section 246 that there is in effect more
than one decision. I draw a sharp distinction in this connection between what
can amount to a decision and what can amount to reasons for a decision. I do
not find any assistance from the case of Lake v Lake, because
there was in that case no doubt as to what was the decision in respect of which
there was a right of appeal. In the case of section 246 I regard the position
as being less clear. It appears to me that it is important that the decision in
the present case should not unduly restrict the effects of the rights which are
given by section 246 of the Act in cases where it can be argued there is more
than one decision. Accordingly, while refusing this appeal, I would draw
attention to the matters to which I have made reference and leave them open to
further argument on another occasion.
McCOWAN LJ:
In my judgment it is vital to have in mind in this
case what the decision of the Secretary of State was. That decision is to be
found set out at para 36 of the inspector’s decision letter:
For reasons
given above, and in exercise of the powers transferred to me I hereby direct
that the notice be quashed.
It has not
been argued by Mr Payton, for the appellant, that that decision is wrong. What
Mr Payton does not like is some of the words used by the inspector as part of
his reasons for arriving at that decision. Those words are to be found in the
second sentence of para 19 of the letter, which reads:
there has
been a breach of planning control and accordingly your client’s ground (b)
appeal must fail.
In fact at one
stage of his argument before this court Mr Payton said in terms: ‘If the
inspector had not said what he did in that sentence, there would have been no
appeal’.
For my part I
do not think it was a necessary part of the inspector’s reasoning to include
that sentence. All that he needed to say was, ‘On the facts which I have found
in paras 16 to 18 inclusive, there has been, not a material change of use
without the benefit of planning permission but a failure to comply with a
condition subject to which the planning permission was granted’. If he had used
those words no reasonable complaint could, in my judgment, have been made,
because it was necessary for the inspector to find those facts in order to
arrive at the conclusion that the notice should be quashed. Yet if Mr Payton’s
fears are justified that his client may at some stage find himself estopped in
some other proceedings, those findings of fact,
to which he takes exception. I therefore agree with the basis upon which Judge
Marder decided the case.
However, there
seem to me much simpler and more conclusive reasons why the appeal on
enforcement notice B had to fail before the judge and cannot get off the ground
in this court. Section 246(1) empowers the appellant to appeal ‘against the
decision on a point of law’. The decision is defined by subsection (5) of that
section:
In this
section ‘decision’ includes a direction or order, and references to the giving
of a decision shall be construed accordingly.
That
definition is sufficient, in my judgment, to explain why subsection (1) begins
by speaking of ‘Where the Secretary of State gives a decision in proceedings on
an appeal . . .’. All that amounts to is that there can be an appeal to the
High Court against a decision of the Secretary of State given in the course of
proceedings on an appeal.
The two short
answers to this appeal are, first, that in reality the appellant is not
appealing against the decision to quash the enforcement notice. He welcomed
that. He is at most wanting to appeal against the inspector’s reasons for his
decision and not against the decision, and the Act does not empower him to do
so. Second, if the second sentence of para 19 of the decision letter, which the
appellant complains of, were a part of the decision and the appellant could
therefore appeal against it, he would be unable, and indeed has been unable, to
point to any error of law in it.
For these
reasons I also would dismiss the appeal.
Appeal
dismissed with costs.
