Hartley v Minister of Housing and Local Government
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CROSS,THE MASTER OF THE ROLLS |
| Judgment Date | 24 October 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J1024-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 October 1969 |
[1969] EWCA Civ J1024-1
In The Supreme Court of Judicature
Court of Appeal
Appeal of applicant from Order of the Divisional Court, London, dated December 11, 1968.
The Master of the Rolls (Lord Denning)
Lord Justice Widgery and
Lord Justice Cross
D Mr. IAIN GLIDEWEEL, Q.C., and Mr. DAVID HANDS (instructed by Messrs. Barlow, Lyde & Gilbert, agents for Messrs. Milburn & Co., Workington) appeared on behalf of the Appellant.
Mr. MALCOLM SPENCE (instructed by the Solicitor, Ministry of Housing and Local Government) appeared on behalf of the Respondents.
THE MASTER OF THE ROLLS. We need not trouble you, Mr. Spence.
This case raises a short point under our planning legislation; It concerns a site in Cumberland between Workington and Cockermouth, the Bridgefoot Petrol Pilling Station. The facts are all fully set out in the case which is already reported in 1969 2 Queen's Bench, page 46. There were three phases in the history of this site. During the first phase, up to 1961, the site was used for two purposes, one as a petrol-filling station, the other for the display and sale of cars. Then a Mr. Fisher took over the premises and continued to use the site for both purposes, but he died within a few months. After his death in 1961 his widow ran the business with the help of her son aged 19, This started the second phase. The widow and son did not sell cars. They continued only the business of a filling station. (The widow would not let her son sell cars, as he was not experienced in the business. One or two were sold but there were no sales of such significance to amount to a user of the premises for the purposes of sales.) This second phase continued for some four years. During this phase the petrol-filling business used the same part of the premises as it had always done: but the part which had previously been used for selling cars was not used at all. That part was disused for those four years. Then in 1965 we come to the third phase. Mrs. Fisher sold the shop site to Mr. Hartley. He started to sell cars in a big way. He prospered exceedingly. He sold some 350 cars a year.
The planning authority thought that Mr. Hartley, by embarking on selling cars at this site, was making a material change in the use of the land, without getting planning permission. So they served on him an enforcement notice requiring him to cease to use the site for car -selling, and to use it only f-jr the petrol filling. The reason for their objection was a planning consideration. The road beside this site carried a lot of traffic and had an awkward bend. It was very undesirable to have a car-selling business there on this scale. There was an inquirybefore an Inspector, and an appeal to the Minister who made these findings. "It is considered on the evidence that up to the time of Mr. Fisher's purchase of the petrol station in March 1961 there was a dual use of the red land as a petrol-filling station and for the display and sale of cars". Then as to the second phase. "It is considered that during this period (March 1961 - February 1965) the use for car sales had ceased, the intention being to cease it indefinitely. By 1965 if not in 1961, the use for car sales had been abandoned, and the use of the site was that of a petrol-filling station only. On that ground the Minister held that the enforcement notice was good. Mr. Hartley appealed to the Divisional Court, and by leave to us.
Mr. Glidewell, for Mr. Hartley, argued that a cessation of use is not a change of use. A man who has used a site for the business of selling cars might cease that user altogether and not use the site for any purpose. He would not have to get planning permission to stop selling cars. If, therefore, a cessation of use is not a change of use, then, said Mr. Glidewell, neither is a resumption of use. Such a man could, he said, at any time resume the previous use for selling cars without getting planning permission. That sounds logical enough. In support of it, Mr. Glidewell quoted Lord Parker, Lord Chief Justice, in the unreported case of McKellen v. Minister of Housing and Local Government on the 6th May, 1966: "It is of course quite plain that a change from A to X and then from X to A does not involve development, either way, if X is completely nil, no use at all. But if X is a use, then the change from A to X may involve development, and the change from X to A may involve development." Mr. Glidewell relied on the first sentence of that quotation. If such be the position when a man ceases a single use, said Mr. Glidewell, then it is the same when he ceases one of the two uses in a dual use. A cessation of one of the uses does not require planning permission. Nor, said Mr. Glidewell, does a subsequent resumption of that one use.
I do not accept this argument. I think that, when a man ceases to use a site for a particular purpose, and lets it remain unused...
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