Fidler v First Secretary of State and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Carnwath,Lord Justice Buxton,Lord Justice Brooke |
| Judgment Date | 12 October 2004 |
| Neutral Citation | [2004] EWCA Civ 1295 |
| Docket Number | Case Nos: C3/2003/2206 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 October 2004 |
[2004] EWCA Civ 1295
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
RICHARDS J
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Brooke Vice-President, Court of Appeal (Civil Division)
Lord Justice Buxton and
Lord Justice Carnwath
Case Nos: C3/2003/2206
C3/2003/2207
Mr Jonathan Clay (instructed by DMH Solicitors) for the Appellant
Mr Tim Mould (instructed by The Treasury Solicitor) for the First Respondents
Background
Honeycrock Farm was originally an agricultural holding extending to some 200 acres, near Redhill, Surrey. The only part with which we are now directly concerned is the farmyard and buildings, within an area described on the plan before us as Planning Unit C. Mr Fidler's ownership also includes the site of two small buildings (buildings 1 and 2) in the south-west (Planning Unit A) and an area of agricultural land to the north (Planning Unit B) .
Planning Unit C comprises two groups of buildings (some smaller buildings Nos 3–7 on the west side; and two larger linked buildings Nos 9–10 on the east); and two linked open areas, described as the "Northern yard" (between the two groups of buildings) and the "Southern yard" (south of buildings 3 to 7) . It is common ground that this area was correctly treated by the inspector as having become a single planning unit for planning purposes by 2001, when the current round of enforcement action began. I shall refer to it as "the site".
The appeal raises issues concerning an enforcement notice served by the council on 4 th February 2002 ("Notice I"), requiring the cessation of specified business uses within the site. There are two live issues before us, described in argument as "the material change of use" issue, and the "deemed planning permission" issue.
History of Use
The Inspector made a careful and comprehensive assessment of the history of the use since Mr Fidler's first involvement in the 1970s. The following are the main points.
Mr Fidler had started renting agricultural land and some space in the buildings from the previous owner, Mr Widdowson, in the early 1970s. He acquired his present holding in 1985. Mr Fidler himself was carrying on agricultural uses, in addition to hay and straw dealing and agricultural and general contracting from the northern yard. The northern yard was also used by others for open storage for various haulage and contracting businesses and as workshops of different types. A "dutch barn type" of building was erected by Mr Fidler on the site of unit 10 in 1981.
When Mr Fidler acquired the site in 1985, there was at that time, as the inspector found –
"… a variety of uses, including soil screening, both civil engineering and demolition contractors bases, workshops for vehicle and farm machinery repairs, a haulage depot plus a repair workshop for the vehicles, a fencing contractor and a welder/repairer of plant and equipment. There was also storage, both in the building (unit 10) and in the open of such things as building materials and aircraft and helicopter parts… The appellant also used the land and buildings for his own operations including agriculture and uses ancillary to it, hay and straw dealing, agricultural contracting, for a building and demolition contractor's depot and store and repairer of commercial vehicles and helicopters…" (para 65)
In 1991 (taken by the Inspector as the starting point of the 10 year period required to show lawful use), the non-agricultural uses were principally confined to the northern yard, which he regarded as having been at that time a separate planning unit from the southern yard (para 70) . He considered the changes since the start of 1991. The main points which emerge from his account are:
i) In 1990 Mr Fidler lost his tenancy of the agricultural land to the north of the appeal site, and began to diversify his use of the buildings on the site. This led to the introduction of a number of commercial users into the buildings in the southern part of the site, with the result that there soon became a mixed use of the southern yard as well as the northern one. By 1994 at the latest, the northern and southern yards, and the related buildings, had become part of one planning unit with a mixed use (para 75) .
ii) In mid-1991 unit 9 was erected as an extension to unit 10 at the same time as some refurbishment of unit 10 itself. Some additional land (about 0.1ha) was taken into the planning unit for that purpose.
iii) In 1995 another area immediately to the north of unit 9 (about 0.16ha), previously in agricultural use, was taken into the planning unit, and was used for commercial purposes in the form of storage and parking of vehicles and machinery. The Inspector commented that this resulted in the northern planning unit (as it had existed in 1991) being extended from 0.51ha to 0.77ha, an increase of just over 50% (para 77) .
iv) Major alterations were carried out in 1998 to units 9 and 10. Before those changes the buildings had been, in the Inspector's description, "like a typical large dutch barn with a roof and minimal cladding to the two outside walls of corrugated sheeting" (para 81) . He described the alterations:-
"New cladding was put on the outside of any existing old cladding on the elevations and inside, block work walls were added up to roof height in many parts; many internal block work partition walls were built to create various sized areas, and in a number of places a first floor was added and a number of windows were made at that level in the outside walls. Some new roofing sheets were added…" (para 82) .
v) As to the uses of the site, the Inspector commented:-
"Uses have remained fairly constant over the 10-year period, being a mixture of uses falling within classes B1, B2 and B8 of the Use Classes Order (i.e. business use, general industrial use and storage or distribution use) plus a number of uses not falling within a use class. These have been fairly similar in type and were generally use as a haulage depot with ancillary repairs and storage; use as a demolition contractor's depot with ancillary storage and repairs; a building contractor with ancillary storage and workshop; soil screening (up to 1997 only) . The level of use and the amount of the site taken up by one activity/use compared to another varied as did the number of people and companies involved in some of the activities/uses". (para 84)
Statutory provisions
"Development", for the purposes of the Town and Country Planning Act 1990 (the 1990 Act), includes the carrying out of building operations on land, and the making of any material change in the use of any buildings or other land (s 55(2)) . However, use of buildings or other land for any other purpose of the same class under the Use Classes Order ( Town and Country Planning (Use Classes) Order 1987) is taken not to be development (s 55(2) (f)) The classes arguably relevant to this case are classes B1 (business), B2 (general industrial) and B8 (storage or distribution) . Planning permission is required for the carrying out of any development of land (s 57) . Planning permission may be granted prospectively (s 70) or retrospectively (s 73A) . Carrying out development without permission is a "breach of planning control" (s 171A(1)) .
Part VII deals with enforcement against breaches of planning control. These provisions were substantially recast in 1991, following a Department of the Environment report "Enforcing Planning Control" (Feb 1989) ("The 1989 Report") . (Although I was the author of that report, and therefore indirectly involved in the legislative process, neither party has raised any objection to my sitting on this appeal. I would not in any event regard involvement in a non-political report of that kind as any grounds for disqualification, under the principles now settled by the House of Lords: see Davidson v Scottish Ministers [2004] UKHL 34) .
Time limits for enforcement action are contained in s.171B. There is a 4 year limit for breaches consisting of operational development, or change to use as a single dwellinghouse (s 171B(1) (2)) . Otherwise there is a 10 year limit, under section 171B(3), which provides:
"In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach." (s 171B(3))
The latter limit is subject to the "second bite" provision, whereby a further notice may be served within 4 years of a notice dealing with the same breach (s 171B(4)) . (It is unnecessary to set this out, as there is no appeal in respect of this aspect of the Judge's decision.)
General provisions governing the issue of an enforcement notice and the contents of a notice are contained in ss.172 and 173. In particular, the notice must state "the matters" which appear to the local authority to constitute the breach of planning control (s 173(1)) . It must also specify –
"… the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes." (s 173(3)"
The purposes, as defined, include -
"(a) … remedying the breach…by discontinuing any use of land or by restoring the land to its condition before the breach took place; or
(b) remedying any injury to amenity which has been caused by the breach." (s 173(4)
Examples are given of possible requirements (s 173(5)), including "(a) the...
To continue reading
Request your trial
-
Mr Robert Johnson and Mrs Marjolein Russnak-Johnson v Royal Borough of Windsor and Maidenhead
... ... Maidenhead Appellant and Secretary of State for Housing Communities and Local Government ... an enforcement notice in relation to the land (‘the First Enforcement Notice’). The notice alleged a breach of ... behaved unreasonably, and this has directly caused another party to incur unnecessary or wasted expense in the appeal ... of land were summarised by the Court of Appeal in Fidler" v First Secretary of State [2005] 1 P&CR 12 : \xE2" ... ...
-
Stamatios Miaris v Secretary of State for Communities and Local Government and Another
...control to which the notice relates. It does not to any other matters which could have been included in the notice: see Fidler v First Secretary of State [2004] EWCA Civ 1295, [2005] 1 P&CR 12 at [35], [41]–[44]; Secretary of State for Communities and Local Government v Ioannou [2014] EWCA ......
-
Flattery v Secretary of State for Communities and Local Government
...is nothing inaccurate, either in law or in fact, in that conclusion. It accords with the decision of the Court of Appeal in Fidler v First Secretary of State [2004] EWCA Civ 1295. 108 In paragraph 30 the Inspector referred to a dispute over a rating assessment which had occurred in 1982. A ......
-
Secretary of State for Communities and Local Government v Ioannou
...73A, which relates to development which has been carried out, not development which is proposed to be carried out. 31 In Fidler v First Secretary of State [2004] EWCA Civ 1295 this Court rejected a submission that the permission which was treated as having been granted under subsection 173(......