Brooks and Burton Ltd v Secretary of State for the Environment

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE LAWTON
Judgment Date28 Jul 1977
Judgment citation (vLex)[1977] EWCA Civ J0728-5

[1977] EWCA Civ J0728-5

In The Supreme Court of Judicature

The Court of Appeal

(Civil Division)

(On appeal from Order of The Divisional Court Queen's Bench Division)

Before:

Lord Justice Megaw

Lord Justice Lawton and

Sir David Cairns

In the Matter of the Town and Country Planning Act 1971.

and

In the Matter of Land at Holtwood, Wimborne, Dorset:

Between:
Brooks & Burton Limited
(Appellants)
-and -
The Secretary of State for the Environment
(First Respondent)
-and-
Dorset County Council
(Second Respondent)

Miss MONIQUE VINER and Mr. WILLIAM HICKS (instructed by Messrs. Riders, Agents for Messrs. Derek T. Wilkinson & Co., Bournemouth) appeared on behalf of the Appellants (Appellants).

Mr. PETER BOYDELL, Q.C., Mr. HARRY WOOLF and Mr. ROBERT SEABROOK (instructed "by Treasury Solicitor) appeared on behalf of the Respondent (First Respondent).

1

A LORD JUSTICE MEGAW: The judgment which Lord Justice Lawton is about to read is the judgment of the whole Court.

LORD JUSTICE LAWTON
2

In this appeal, in which the Dorset County Council have not appeared, the main questions for decision have been these: first, was an enforcement notice dated 13th September, 1973, served upon the appellants, Brooks & Burton Ltd., by the Wimborne and Cranborne Rural District Council, acting as agents of the Dorset County Council as the planning authority, null and void? Secondly, even if C that enforcement order was valid, did the Secretary of State misdirect himself in law on the facts found by the Inspector and as to the construction of the Town and Country Planning (Use Classes) Order, 1972 ( S.I. 1972 No. 1385)? Thirdly, was an enforcement notice dated 4th April, 1973, and served by the same planning authority, valid having regard to the facts found by the Inspector?

3

The land to which these enforcement notices applied was about 4 miles north-north- east of Wimborne Minster. We shall refer to this land as the appeal site. It covers about 5 acres but the activities which led to the serving of the two enforcement notices were on only part of the site, the area being about 1.78 acres. We shall refer to this as the block-making site. The appeal site lies behind some houses in the hamlet of Holt and is approached by an accommodation road off an unclassified road running through the hamlet. This site, together with some adjoining land, was for a long time before 1963 known as Holt Brickworks. We shall refer to all that land as the brickworks land. Brick-making on a small scale was carried on there from 1929 until 1958. Clay was hauled up by machinery from clay-pits on this land. It was moulded in a shed. The moulded bricks were then dried in open-sided sheds known as backs, and when sufficiently dry they were burnt in kilns. By 1937 there were three kilns. Asbrick-making was taking place on July 1st, 1948, that activity became an established use under the Town and Country Planning Act, 1947: see section 12 (1). Under the Town and Country Planning (Use Classes) Order, 1953, the "burning of bricks or pipes" became a Class VI use. In 1958 brick-making stopped. The then owner of the brickworks land applied to the planning authority for permission to use 3 acres of it for light industrial purposes, a Class III use. A large part of that 3 acres was on the appeal site. The application was granted on 28th January, 1959. Later in that year the brickworks land was sold to a Mr. Stokes, together with the goodwill of the brick-making business. Mr. Stokes found it impracticable to carry on the brick-making business. The land was unused from 1959 until the end of 1963; but the buildings and machinery remained.

4

In the summer of 1963 Mr. Stokes agreed to sell the brickworks land to three partners, who were two brothers named Sturtevan't and a Mr. King. The conveyance was dated 14th October, 1963. The partners wanted to use a small part of the brickworks land to make concrete blocks. They started to do so in November, 1963. By Christmas, 1963, commercial production can be said to have been established. Planning permission for this change of use had neither been asked for nor given. It was a development of the land in breach of planning control, but as it had started before the end of 1963 and no enforcement notice had been served in respect of it before 1973, the partners and their successors in title became immune from enforcement; but the use for concrete block-making was not one for which planning permission had been granted. See sections 23 and 87 of the Town and Country Planning Act, 1971, and LTSS Print & Supply Services Ltd. v. Hackney London Borough Council and Another (1976) Queen's Bench 663. That this use was not a lawful one, even though the occupiers were immune from enforcement proceedings, is of importance in relation to the appellants' submissions as to the validity of the enforcementnotice dated 4th April, 1973.

5

By 1972 Mr. King was dead. One of the Sturtevant brothers had sold out to the other. He was carrying on with the help of his son. Their operations were then on a small scale. They made concrete blocks for garden use. Two sheds were in use. One had block-making machinery in it which was driven by a diesel engine. This caused some noise which could be heard outside the boundaries of the appeal site. The other was used as a staff room and had a lavatory in it. The blocks when made were dried in the open air. This was done by placing them on concrete strips set in hoggitt which had been laid down. About six men were engaged in block-making. The potential production for the machinery and manpower was about 300,000 blocks a year but this was not accomplished. The vehicular traffic to and from the block-making site was light. The office work was done in a bungalow in a corner of the block-making site. Planning permission for the erection of this bungalow had been given in 1959 "but its use was limited to light industrial purposes.

6

In 1972 the appellants became interested in the brickworks land. They had ideas for increasing the production of concrete blocks by the use of more modern machinery. They made enquiries about the planning position. In the autumn of 1972, one of the appellants' directors, a Mr. Brooks, called at the local planning office at Wimborne Minster and had an interview with a Mr. Belcher, who was the local building inspector. Mr. Belcher said he knew the brickworks land and that concrete blocks had been made there for 10 years or more. A few days later Mr. Brooks called on Mr. Belcher again. On this occasion Mr. Belcher said that he had looked up the records and that planning permission for industrial use had been given for 3 acres and that he could see no reason why Mr. Brooks's company should not carry on with concrete block-making. He suggested that Mr. Brooks should call on the planning officer, a Mr. Belsten. This Mr.Brooks did, accompanied by another director, Mr. Belsten got out the plans and checked the records. He confirmed that there was a permitted use on 3 acres under Class III. Mr. Brooks told him that his company had plans to instal a new mixer and to concrete the yards. Mr. Belsten said that they could carry on making concrete blocks.

7

The appellants' two directors assumed that their company would not require planning permission for what they had in mind to do by way of block-making on the appeal site. No application was ever made for planning permission. When in 1973 the appellants learned that the planning authority were claiming that they should have obtained permission for what they were doing and served the enforcement notice dated 13th September, 1973, they were indignant. In the inquiry which was held as a result of the service of this and other enforcement notices, the appellants contended that the planning authority were estopped by what Mr. Belcher and Mr. Belsten had said to them from alleging that there had been any development of the appeal site which required planning permission. The inspector rejected this contention. So did the Secretary of State. On the appeal from the latter's decision which the appellants made to the Divisional Court they again raised the issue of estoppel and again failed. The Divisional Court's order did not indicate that leave to appeal on that issue had been given. At the hearing Miss Viner on behalf of the appellants asked this Court for leave to appeal on that issue. After some discussion she abandoned that application. This was a wise decision as on the evidence and the inspector's findings estoppel would have been difficult, probably impossible, to establish. We say no more about this issue.

8

Confident that they could lawfully use the appeal site for what they wanted to do, the appellants agreed to buy it in November, 1972. It was conveyed to them on 14th December, 1972. Once in possessionthey set about modernising and expanding the business which the Sturtevants had carried on. They planned to produce concrete blocks for general building use as well as for ornamental garden use. Blocks of the new type were to be made in the open air with modern equipment. For this purpose they obtained and installed in the open air on the block-making site some machinery called a batching plant. It was large, standing about 25 feet off the ground. It could be seen from neighbouring properties. It made some noise, as did the diesel generator which provided it with electricity. A small amount of cement dust was released when cement was fed into it. Other smaller machines were brought on to the block-making site and installed in the open. The machinery which the Sturtevants had used for making garden blocks was retained and used in one of the two sheds in wet weather. The other shed was used, as it had been in the Sturtevants' time, as a workshop with welding equipment and tools in it. Part was set aside as a staff room, adjoining which was a lavatory. The bungalow was used solely as offices. The new machinery...

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