Epping Forest District Council v Martin Arnold Philcox
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE CHADWICK,LORD JUSTICE BUXTON |
| Judgment Date | 08 December 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J1208-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C/2000/2058 |
| Date | 08 December 2000 |
[2000] EWCA Civ J1208-5
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
(Mr Justice Hooper)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Lord Justice Pill
Lord Justice Chadwick
Lord Justice Buxton
C/2000/2058
MR R HOWARD (Instructed by Gadsby Wicks, Greenwood House, 91–99 New London Road, Chelmsford, Essex CM2 OPP) appeared on behalf of the Appellant
MR P HARRISON (Instructed by Epping Forest District Council, Legal Department, Civil Offices, Epping, CM16 4BZ) appeared on behalf of the Respondent
Friday, 8th December 2000
This is an appeal against a decision of Hooper J in which he dismissed an application by Mr Martin Philcox to quash a decision of the Epping Forest District Council ("the Respondents") whereby on 2nd July 1998 they granted a certificate of lawfulness of existing use to W. Lowe Commercials Limited in respect of land at Rockhills, Willingale, Essex. The certificate described the established use as "the breaking of motorised road vehicles and storage of parts". The certificate was granted, notwithstanding the fact that on at least a part of the site the operation had for a considerable time been conducted without the required waste management licence and therefore contrary to section 33 of the Environmental Protection Act 1990. That section is headed "Prohibition on unauthorised or harmful deposit, treatment or disposal of waste", and provides in subsection (1) that a person shall not conduct activities (including those with respect to which the certificate was issued) "except under and in accordance with a waste management licence". Subsection (6) provides that a person who contravenes subsection (1) commits an offence.
Section 191 of the Town and Country Planning Act 1990 ("the 1990 Act") provides, insofar as is material:
"(1) if any person wishes to ascertain whether—
(a)any existing use of buildings or other land is lawful;
(b) any operations which have been carried out in, on, or over or under land are lawful; or
(c)any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.
(2) For the purposes of this Act uses and operations are lawful at any time if-
(a)no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and
(b)they do not constitute a contravention of any of the requirements of any enforcement notice then in force."
Subsection (3) deals with compliance with conditions or limitations subject to which planning permission has been granted. Subsection (4) provides for the issue of a certificate and subsection (5) sets out what shall be contained in the certificate.
"(6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed.
(7) A certificate under this section in respect of any use shall also have effect, for the purposes of the following enactments, as if it were a grant of planning permission-
(a)section 3(3) of the Caravan Sites and Control Development Act 1960;
(b)section 5(2) of the Control of Pollution Act 1974; and
(c)section 36(2)(a) of the Environmental Protection Act 1990."
The relevant time limits for enforcement action are set out in section 171B of the 1990 Act. The expiry of those time limits provides an operator with immunity from enforcement action. It is common ground that the time limit in this case had expired when the certificate was granted.
Section 36(2)(a) of the Environmental Protection Act 1990 deals with the grant of waste management licences and how an application shall be made. Subsection (2) provides, insofar as is material:
"A licence shall not be issued for a use of land for which planning permission is required in pursuance of the Town and Country Planning Act 1990 … unless—
(a)such planning permission is in force in relation to that use of the land."
The effect of those provisions in the submission of the respondents in the present situation is that, though an offence has been committed under section 33 of the Environmental Protection Act 1990, the effect of section 191(2) is to render the relevant operations lawful for the purposes of the 1990 Act. The effect of section 191(7) is to provide that, when applying for a licence to conduct the relevant operations, the issue of the certificate under that section shall have effect for present purposes as if it were a grant of planning permission. Thus, the operator can apply to the authority for a waste management licence. It may be noted that he is not entitled as of right to such a licence. That is because section 36(3) of the Environmental Protection Act 1990 provides, insofar as is material:
"… a waste regulation authority to which an application for a licence has been duly made shall not reject the application if it is satisfied that the applicant is a fit and proper person unless it is satisfied that its rejection is necessary for the purpose of preventing—
(a)pollution of the environment;
(b)harm to human health; or
(c)serious detriment to the amenities of the locality."
Thus, the waste regulation authority must first be satisfied that the applicant for a licence is a fit and proper person and, second, it has the power to reject the application if satisfied that it is necessary to do so to prevent the mischiefs set out in subparagraphs (a), (b) or (c).
In my judgment, the wording of section 191 is plain, and, subject to the point made by the appellant, it has the effect I have set out. Section 191 deals specifically and expressly with a specific problem. Its enactment followed the report of Mr Robert Carnwath QC in 1988 with its consideration of that planning status, the subject of earlier litigation, described as "unlawful but immune".
On behalf of the appellant, Mr Howard submits that section 191 must be read in the context of a fundamental presumption of law that a person must not gain from a breach of the law. The section does not, and cannot on its wording, certify as lawful acts which are criminal. If it could, the result would be that the valuable financial benefits which may follow from the grant of planning permission have been acquired by a course of criminal conduct; and there is a fundamental proposition of English law to the contrary. To read section 191 in the manner for which the respondents contend would be to place the planning legislation in a hermetically sealed unit, it is submitted. It would remove and isolate planning law from the general law of the land. Mr Howard accepts that at no point in the section can a word simply be included to give effect to what he submits is a general presumption and fundamental principle. The section must, however, be read, he submits, against the background of that fundamental principle.
Mr Howard does not challenge the power of a local planning authority to grant planning permission to an operator when what the operator is doing is in breach of section 33 of the Environmental Protection Act. That, he submits, is a different situation because the local planning authority have a discretion as to whether or not to grant permission to him. I interpose only that in terms of the public interest and public concern, the effect of the two situations, the purported operation of section 191 and the express grant which Mr Howard accepts would be lawful, is the same.
Mr Howard refers to three strands of authority in support of his submission. In Regina v Chief National Insurance Commissioner, Ex parte Connor (1981) QB 758 the Divisional Court construed section 24 of the Social Security Act 1975. That entitled a claimant to a widow's allowance if the woman has been widowed. That requirement had been satisfied. The widow had been convicted of the manslaughter of her husband and was widowed in that manner. The court decided that the allowance was not payable. Lord Lane CJ stated at page 765 B:
"The fact that there is no specific mention in the Act of disentitlement so far as the widow is concerned if she were to commit this sort of offence and so become a widow is merely an indication, as I see it, that the draftsman realised perfectly well that he was drawing this Act against the background of the law as it stood at the time."
Lord Lane concluded that the killing had been a "deliberate, conscious and intentional act", and that was sufficient to disentitle the claimant to recover.
Shortly afterwards, in Regina v Secretary of State for the Home Department, Ex parte Puttick (1981) QB 767, the Divisional Court construed section 6(2) of the British Nationality Act 1948 (as amended). It entitled to registration as a citizen "a woman who has been married to a citizen of the United Kingdom and Colonies". The claimant had been married to such a citizen. Donaldson LJ, sitting in the Divisional Court, cited the judgment of Lord Lane CJ in Connor and referred to the offences of perjury and forgery which the claimant had committed. Donaldson LJ referred to the case of Beresford, to which I too will refer. He concluded at 775 G:
"For my part, I think that when the British Nationality Act 1948 was enacted it was well established that public policy required the courts to refuse to assist a criminal to benefit from his crime...
To continue reading
Request your trial