Town and Country Planning Act 1971 — Ruling by House of Lords on a matter which had been in doubt — True construction of section 23(9) — Reverter to lawful use after effective enforcement notice — Whether a person served with such a notice can revert to the use to which the land was last lawfully put or whether he is only entitled to revert to the immediately preceding use provided that such use was itself lawful — Otherwise expressed, will an intervening unlawful use prevent reverter to an earlier lawful use? — House has now ruled that the reverter can only be to the immediately preceding use, being a lawful use — If there is an intervening unlawful use, section 23(9) does not apply, so that planning permission will in general be required for the purpose contemplated — In the present case the use which was the subject of the enforcement notice was light industrial, unlawful because of lack of planning permission; the immediately preceding use was a general industrial one, unlawful for the same reason; and the use before that was a lawful light industrial use — Appellant could not revert to the lawful light industrial use because of the intervening unlawful use — Observations of Cairns LJ in LTSS Print v Hackney Borough Council approved — Appeal from decision of Court of Appeal dismissed
This was an
appeal by the owner against a decision of the Court of Appeal dismissing an
appeal from a decision of Forbes J, who in turn had dismissed an appeal from a
decision of the Secretary of State. The appellant had appealed to the Secretary
of State under section 88(1) of the 1971 Act against an enforcement notice in
respect of the development of land at Woodside Crescent, Sidcup, Kent.
N MacLeod QC
and S Bickford-Smith (instructed by Ward Bowie) appeared on behalf of the
appellant, Mr Young; Simon Brown and Andrew Collins (instructed by the Treasury
Solicitor) represented the first respondent, the Secretary of State; the
planning authority was not represented.
In his speech
LORD FRASER OF TULLYBELTON said: This appeal raises a question of construction
of section 23(9) of the Town and Country Planning Act 1971. That subsection provides:
(9) Where an enforcement notice has been served
in respect of any development of land, planning permission is not required for
the use of the land for the purpose for which (in accordance with the
provisions of this Part of this Act) it could lawfully have been used if that
development had not been carried out.
The issue
raised in the appeal is whether section 23(9) enables a person, upon whom an
enforcement notice has been served alleging a breach of planning control by
making a material change in the use of land, to revert to the use to which the
land was last lawfully put, or only to revert to the use immediately preceding
that enforced against, provided that such use was itself lawful. The appellant
contends for the former alternative, the first respondent for the latter. The
first respondent was the only respondent who was represented before this House,
and I shall refer to him hereafter as ‘the respondent’.
Part III of
the 1971 Act, which includes section 23, deals with general planning control.
It provides by section 22(1) that ‘development’ of land means the making of any
material change in the use of any buildings or other land. That general rule is
qualified by subsection (2) of section 22 which provides that a change from one
use to another use in the same class, as defined in an order by the Secretary
of State, shall not be taken for the purposes of the Act to involve
development. Section 23 provides that any development of land, with certain
specified exceptions, requires planning permission. Section 23 so far as
relevant to this appeal provides as follows:
23(1) Subject to the provisions of this section,
planning permission is required for the carrying out of any development of
land.
(2) Where on July 1 1948 (in this Act referred to
as ‘the appointed day’ land was being temporarily used for a purpose other than
the purpose for which it was normally used, planning permission is not required
for the resumption of the use of the land for the last-mentioned purpose before
December 6 1968.
(5) Where planning permission to develop land has
been granted for a limited period, planning permission is not required for the
resumption, at the end of that period, of the use of the land for the purpose
for which it was normally used before the permission was granted.
(6) In determining, for the purposes of
subsection (5) of this section, what were the purposes for which land was
normally used before the grant of planning permission, no account shall be
taken of any use of the land begun in contravention of the provisions of this
Part of this Act or in contravention of previous planning control.
(9) (Already quoted above).
On February 11
1980 an enforcement notice was issued by the second respondents to the
appellant in respect of development of land at Woodside Crescent, Sidcup, Kent.
The land in question consists of a large building, which is used by the
appellant to process, store and distribute insulating materials. It is
surrounded by a residential area. The enforcement notice was issued by the respondents
in pursuance of their powers under section 87(1) of the 1971 Act. It alleged
that there had been a breach of planning control in that the land had been
developed by the making of a material change of use without the grant of
planning permission which was required. The appellant appealed to the Secretary
of State, under section 88(1) of the Act, denying that there had been any
breach of planning control. A public inquiry was held and on November 21 1980
the appellant’s appeal to the Secretary of State was dismissed (subject to a
slight extension of the time allowed by the enforcement notice for ceasing to
use the land and removing his materials from it). Section 88(7) provides that
when such an appeal is brought the appellant is deemed to have applied for
planning permission for the development to which the notice relates. This
deemed application was refused.
The appellant
appealed to the High Court under section 246(1) of the Act, and on April 7 1982
his appeal was dismissed by Forbes J. On February 2 1983 the Court of Appeal
(Lord Lane CJ, Watkins LJ and Sir Roger Ormrod) dismissed the appellant’s
appeal and affirmed the judgment of Forbes J.
Before your
Lordships’ House, counsel for the appellant accepted that the enforcement
notice was valid and well founded in fact. His argument was confined to the
question of its effect, under section 23(9), on the footing that it was valid.
In order to appreciate the
the land. It was as follows:
(a) From 1912 until 1969 the building was used as
a laundry. This was use as a general industrial building within Class IV of the
schedule to the Town and Country Planning (Use Classes) Order 1972 (‘the Use
Classes Order 1972’).
(b) In 1969 there was a change of use to use for
food processing. This was use as a light industrial building within Class III
of the schedule to the Use Classes Order 1972. The change from use as a general
industrial building to use as a light industrial building was a material change
of use, but it was a change which was permitted without the need for specific
permission from the local planning authority or the Secretary of State — see
article 3(1) of the Town and Country Planning General Development Order 1977,
and Schedule 1, Class III. Planning permission for such a change is given by
the order. Accordingly the change of use in 1969 was permitted development and
the use for food processing was a lawful use.
(c) In 1970 there was a change of use back to use
as a laundry. This change from food processing (light industrial) to laundry
(general industrial) was not lawful because planning permission ought to have
been obtained for it but was not. Accordingly the use as a laundry from 1970
onwards was not a lawful use of the building.
(d) Since 1977 the building has been used by the
appellant for his business as an insulating contractor, mainly for storing and
processing materials. This is use as a light industrial building but it is not
a lawful use because the immediately preceding use as a laundry having been
unlawful, any change from it required planning permission. But planning
permission was not sought or obtained for the change of use in 1977. This
change of use was the development in respect of which the enforcement notice
was issued.
It is apparent
from that history that the purpose for which the land was last lawfully used
before the use struck at by the enforcement notice was for food processing
(light industrial) from 1969 to 1970. The appellant contends that, by virtue of
section 23(9) of the 1971 Act, he is entitled to revert to using it as a light
industrial building. There is no dispute that use for storage for the purposes
of his business is use as a light industrial building. The result of that
contention, if it is correct, is that the enforcement notice is futile because
use of the land as a store, although unlawful in the sense that it was begun
without the requisite planning permission, is rendered lawful by section 23(9).
The respondent
contends that the meaning of section 23(9) is that, following upon the
enforcement notice the only use that can be made of the land without obaining
fresh planning permission is use for the purpose for which it could have been
used immediately before the use struck at by the enforcement notice, ie as a
laundry, provided that use was itself lawful. But it is common ground that the
use as a laundry from 1970 to 1977 was not lawful. So, if the respondent is
right, there is, in practice, no purpose for which the land can now be used
without obtaining planning permission. I say ‘in practice’ because there are
some purposes, such as agriculture (see section 22(2)(e) of the 1971 Act), for
which it could lawfully be used without planning permission, but they are unlikely
to be practical possibilities.
The argument
of the respondent prevailed in the Court of Appeal, and in my opinion it is
well founded. I reach that opinion upon construction of section 23(9) itself
and especially of the last few words in the subsection. Where an enforcement
notice is issued in respect of any development, what the subsection authorises
without planning permission is use for the purpose for which the land could
lawfully be used ‘if that development had not been carried out’.
Accordingly one has to assume that the development consisting of the change of
use in 1977 had not been carried out and see what would have been the state of
affairs on that assumption. Clearly if that development had not been carried
out, the land would have continued to be used as a laundry, as it was from 1970
to 1977. But admittedly it was not ‘lawfully’ so used during that period. The
appellant claims to be entitled to follow the planning history of the land
further back through its earlier uses until he gets back to the last lawful
use, which in this case was use as a light industrial building for food
processing in 1969 to 1970. But the process of following the history back would
in my view not be consistent with the hypothesis of subsection 23(9), which is
that only the development of 1977 had not been carried out. The appellant’s
argument would involve reading the subsection as if it referred to the purpose
‘for which the land could last lawfully have been used before
that development had been carried out’. Such a reading would materially alter
the sense of the subsection and is in my view unwarranted. Moreover I agree
with Watkins LJ who said, when this case was in the Court of Appeal, that it
was
inconceivable
that the [recipient] of an enforcement notice was intended to be allowed to
search the history of the use of the relevant land and, upon discovery of a . .
. lawful use, no matter how long ago . . . claim the benefit of that use
without planning permission.
The
construction of the subsection which appears to me correct is consistent with
the general scheme of the Act. During the period 1970 to 1977, when the land
was being used as a laundry, any change of use back to use for food processing
would have required planning permission, because, although it would have been a
change from general to light industrial use, the general industrial use was
unlawful. That was disputed by the appellant at an earlier stage of the appeal,
but he no longer contends that he was entitled to change from general to light
industrial use, if the former was unlawful. It would be strange if the
appellant was in a better position now, after a further unlawful change of use
in 1977 than he, or his author, would have been during the period 1970 to 1977.
Counsel for
the appellant argued that the reference in section 23(9) to ‘the use’ of the
land for the purpose for which it could lawfully have been used etc suggested
that there was a presumption that there probably was a purpose for which it
could lawfully have been used, and thus entitled one to look back beyond the
immediately preceding use. Even if it be accepted that some such presumption is
implied, I do not see why it should entitle one to look back beyond the
immediately preceding use, and in any event I do not consider that it could possibly
be strong enough to overcome the words later in the subsection to which I have
already referred. Counsel also presented a plea ad misericordiam to the
effect that, if section 23(9) was construed in the way for which the respondent
contends, it would operate harshly in his case. He pointed out (rightly) that
if the enforcement notice had been issued during the period between 1970 and
1977, when the land was being used unlawfully as a laundry, planning permission
would not have been required to revert to the immediately preceding use for
food processing, because that was a lawful use. It would be harsh, counsel
said, if the appellant were to lose that right, because instead of continuing
to use the land as a general industrial building (a laundry), he had changed to
using it as a light industrial building, which by definition is less
objectionable (see Use Classes Order 1972, article 2(2)). Counsel also
presented an alternative argument based on hardship to the effect that, had the
use as a laundry not been interrupted for the short period of about a year in
1969 to 1970 by the use for food processing, it would have been lawful and he
could have reverted to it now under section 23(9). Finally counsel urged your
Lordships to regard the provisions of section 23(9) as ambiguous, and to
construe them in the way that would cause least hardship to the appellant. I
have some sympathy for the appellant, but I am unable to accept the submission
that the provisions of section 23(9) are ambiguous, or that their meaning
should be distorted in order to mitigate any element of hardship. It must in my
view be accepted that, in the application of a detailed statutory code such as
that in the Act of 1971, or those which are commonly found in fiscal
legislation, a measure of hardship may in some cases be unavoidable.
We were
referred to the case of LTSS Print v Hackney London Borough Council
[1976] 1 QB 663, 673C where Cairns LJ said in the Court of Appeal that the
effect of section 23(9) was that:
When an
enforcement notice had been served reverter should be allowed only to the use
which was current immediately before the development the subject of the
enforcement notice and if that use was not lawful in accordance with that part
of the Act, then planning permission would be required for any use it was
proposed to adopt.
Glidewell J
in Balco Transport Services Ltd v Secretary of
State for the Environment (1981) 45 P & CR 216 at p 222 after saying he
regarded that observation by Cairns LJ as obiter, expressed the view
that it was not correct. But in a subsequent unreported case (Blenkinsopp
v Secretary of State for the Environment January 28 1983) Glidewell J
recanted that view. Whether the observation of Cairns LJ was obiter or
not, I am respectfully in agreement with it for the reasons that I have tried
to explain. Some reference was made by the learned lord justice to the effect
of subsections (5) and (6) of section 23 and Mr MacLeod for the appellant
sought to found an argument on a comparison between those subsections and subsection
(9) of section 23. Mr Brown for the respondents did not
correct. The provisions of those subsections are materially different from the
provisions of subsection (9) and I do not find them to be of any assistance in
construing the latter subsection. I therefore express no opinion upon the
meaning of subsections (5) and (6) or upon the correctness or otherwise of
anything said about them by Cairns LJ in the LTSS case.
I would
dismiss this appeal.
LORDS
ELWYN-JONES, LOWRY, ROSKILL and BRIGHTMAN agreed that the appeal should be
dismissed for the reasons given in the speech of Lord Fraser of Tullybelton and
did not add any observations of their own.
The appeal
was accordingly dismissed.
