Fidler v First Secretary of State and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Richards,MR JUSTICE RICHARDS |
| Judgment Date | 01 October 2003 |
| Neutral Citation | [2003] EWHC 2003 (Admin) |
| Date | 01 October 2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/426/2003 |
[2003] EWHC 2003 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Richards
Case No: CO/426/2003
Mr Jonathan Clay (instructed by DMH (Solicitors)) for the Appellant
Mr Timothy Mould (instructed by the Treasury Solicitor) for the First Respondent
These proceedings under ss.288 and 289 of the Town and Country Planning Act 1990 concern a former farmyard and adjacent land at Honeycrock Farm, Salfords, Surrey, which is owned by the appellant, Mr Fidler. The site includes a number of buildings (units 1 to 8) grouped around a southern yard and two attached steel-framed barns (units 9 and 10) in a northern yard. It is not in issue that there are now three planning units on the site: planning unit A comprising units 1 and 2 in the south west corner, planning unit B comprising essentially agricultural land at the northern end, and planning unit C comprising the balance of the site, including units 3–10 and the southern and northern yards.
The site has been the subject of a number of enforcement notices issued by the local planning authority, Reigate and Banstead Council. Those of most immediate relevance were issued between January 2001 and February 2002 and are referred to as Notices A to G and Notice I.
The first of the notices chronologically was Notice G, which was issued on 4 January 2001 and related to the reconstruction of the roof of unit 7.
The appellant then applied on 22 January 2001 for a certificate of lawful existing use or development under s.191 of the Act in relation to various uses of the site, contending that there had been a deemed grant of planning permission by under-enforcement under s.173(11) of the Act and that in any case there had been 10 years continuous use of the land for mixed commercial uses.
The council did not determine that application, but instead issued Notices A-F on 7 March 2001, alleging a variety of breaches of planning control.
All the enforcement notices were appealed under s.174 of the Act, and the deemed refusal (through non-determination) of the application for a certificate of lawful development was appealed under s.195.
The First Secretary of State appointed an inspector, Mr DE Morden, to determine all the appeals. A public inquiry opened on 22 January 2002 but was adjourned after 4 days so that the inspector could make preliminary findings as to the validity of certain of the enforcement notices and on other legal submissions made by the parties. His preliminary findings were issued on 26 February 2002 and included findings that Notices B, D and E, which alleged various changes of use on the site, were invalid and could not be corrected without injustice to the appellant.
Meanwhile the council had issued a further enforcement notice, Notice I, on 4 February 2002, again alleging, though in different terms, a material change of use of the site. An appeal against that notice was dealt with together with the existing appeals. The resumed inquiry in relation to all the appeals was held in May 2002.
The inspector's decision letter was issued on 17 December 2002. It extended to over 30 pages plus appendices (including details of the appeals at appendix 1 and his preliminary findings at appendix 2). The inspector allowed the appeals in relation to Notices B, C, D, E, F and G and quashed those notices. In respect of Notice A he dismissed the appeal under ground (a) of s.174(2); he stated that the appeal under ground (b) had been withdrawn, though whether that was correct is in issue. He corrected and varied Notice I so as to include a substituted description of the uses alleged to be in breach, a substituted statement of the remedial action required, and a period of 12 months rather than 6 months for compliance. He then dismissed the appeal against Notice I except to the extent of permitting certain uses of units 6,7 and 8. He allowed to a limited extent the appeal in respect of the certificate of lawful development, which he described as Appeal H, and granted a certificate relating to certain limited uses; but the main part of the appellant's case on the appeal failed together with the substantial dismissal of the appeal against Notice I.
The appellant now appeals to this court under s.289 of the Act against the inspector's decision to uphold Notices A and I. He also applies under s.288 to challenge that part of the decision in which the inspector found against the appellant on the application for a certificate of lawful development.
The main issues raised before this court are: (1) whether the inspector was entitled to find that Notice I was a valid “second bite” notice within s.171B(4)(b) of the Act (“the second bite issue”); (2) whether he erred in finding that there had been a material change of use of the land (“the material change of use issue”); (3) whether he erred in relation to the question whether various commercial uses of the site had been carried on long enough to become lawful (“the previously established lawful use issue”); (4) whether he erred in various respects in his dismissal of the appeal against Notice A (“the Notice A appeal issue”); (5) whether he erred in his rejection of the appellant's case that the combined effect of s.173(11) of the Act and an enforcement notice issued by the council in 1996 had been to confer deemed planning permission on uses that the notice did not require to cease (“the deemed planning permission issue”). Various other matters raised in the appellant's written or oral submissions can be dealt with, so far as necessary, when considering those main issues.
The argument before me has been between the appellant and the First Secretary of State. The council was not represented at the hearing.
Statutory framework
Part III of the 1990 Act is concerned with control over development. By s.55(1), “development” means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land. By s.55(2), however, certain operations or uses of land are not to be taken to involve development. That includes, under s.55(2)(a), certain works of maintenance, improvement or alteration which (i) affect only the interior of the building or (ii) do not materially affect the external appearance of the building. It also includes, under s.55(2)(f), in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State, the use of the buildings or other land for any other purpose of the same class. The classes relevant to this case are classes B1 (business), B2 (general industrial) and B8 (storage or distribution) as specified in the Town and Country Planning (Use Classes) Order 1987.
By s.57, subject to the detailed provisions of that section, planning permission is required for the carrying out of any development of land.
Part VII deals with enforcement. Section 171A contains basic provisions:
“(1) For the purposes of this Act -
(a) carrying out development without the required planning permission …
constitutes a breach of planning control.
(2) For the purposes of this Act -
(a) the issue of an enforcement notice (defined in section 172) …
constitutes taking enforcement action.”
Time limits for enforcement action are contained in s.171B. Subsection (1) lays down a 4 year limit for breaches consisting in the carrying out without planning permission of building, engineering, mining or other operations. Subsection (2) lays down a like period for a breach consisting in change of use of a building to a single dwellinghouse. The focus for present purposes, however, is on subsections (3) and (4)(b), which lay down a 10 year period for all other cases and allow an additional 4 year period for further enforcement action in certain cases (the “second bite” provision). They read, so far as material:
“(3) 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.
(4) The preceding subsections do not prevent —
…
(b) taking further enforcement action in respect of any breach of planning control if, during the period of four years ending with that action being taken, the local planning authority have taken or purported to take enforcement action in respect of that breach.”
General provisions governing the issue of an enforcement notice and the contents of a notice are contained in ss.172 and 173. Section 173(11), upon which the appellant relies in support of the application for a certificate of lawful development, provides:
“(11) Where -
(a) an enforcement notice in respect of any breach of planning control could have required any buildings or works to be removed or any activity to cease, but does not do so; and
(b) all the requirements of the notice have been complied with,
then, so far as the notice did not so require, planning permission shall be treated as having been granted by virtue of section 73A in respect of development consisting of the construction of the buildings or works or, as the case may be, the carrying out of the activities.”
The right of appeal to the Secretary of State against an enforcement notice is governed by s.174. By s.174(2), the grounds on which an appeal may be brought include:
“(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning...
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