Kestrel Hydro v Secretary of State for Communities and Local Government and Another

JurisdictionEngland & Wales
JudgeLord Justice Lindblom,Lord Justice McFarlane
Judgment Date22 July 2016
Neutral Citation[2016] EWCA Civ 784
Docket NumberCase No: C1/2015/2160
CourtCourt of Appeal (Civil Division)
Date22 July 2016

[2016] EWCA Civ 784

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

PLANNING COURT

MR JUSTICE HOLGATE

[2015] EWHC 1654 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice McFarlane

and

Lord Justice Lindblom

Case No: C1/2015/2160

Between:
Kestrel Hydro
Appellant
and
(1) Secretary of State for Communities and Local Government
(2) Spelthorne Borough Council
Respondents

Ms Saira Kabir Sheikh Q.C. and Mr Ned Westaway (instructed by Fortune Green Legal Practice) for the Appellant

Mr Gwion Lewis (instructed by the Government Legal Department) for the First Respondent

Mr Scott Stemp and Ms Leanne Buckley-Thomson (instructed by Spelthorne Borough Council) for the Second Respondent

Hearing date: 29 June 2016

Judgment Approved by the court for handing down

Lord Justice Lindblom

Introduction

1

In what circumstances may an enforcement notice issued by a local planning authority against an unlawful change of use require the removal of structures connected with that unlawful use? That question lies at the heart of this appeal.

2

With permission granted by Sales L.J. on 12 October 2015, the appellant, Kestrel Hydro, appeals against the order of Holgate J., dated 17 April 2015, dismissing its appeal against the decision of an inspector appointed by the first respondent, the Secretary of State for Communities and Local Government, by which he dismissed its appeal against an enforcement notice issued by the second respondent, Spelthorne Borough Council.

3

The enforcement notice was issued by the council on 28 August 201It alleged a breach of planning control by the making of a material change of use in premises known as "Kestrel", in Horton Road, Stanwell Moor, Staines from residential use to mixed use for residential purposes and as an "Adults Private Members' Club", and the erection of various structures on the site and the laying of hardstanding to create a car park. The site is in the Green Belt. As described in the statement of common ground prepared on behalf of Kestrel Hydro and the council for the inquiry into the appeal against the notice, it is "a relatively large plot of land comprising a bungalow fronting onto Horton Road in Stanwell Moor", whose "lawful use … is a single family dwellinghouse" (section 3).

4

The notice required that the unauthorized use be ceased, the site reverted to its lawful residential use, and the structures and hardstanding removed. Kestrel Hydro appealed against the enforcement notice on grounds (a), (d), (f) and (g) in section 174(2) of the Town and Country Planning Act 1990. The inspector held an inquiry on 10 June and 12 September 2014, making his site visit on 11 June 201His decision letter is dated 14 October 201He dismissed the appeal on grounds (a) and (d). On the ground (f) appeal he varied the notice only to remove the requirement that the lawful residential use of the site be resumed. The appeal on ground (g) succeeded, in that the time for complying with the requirements of the notice was extended from six to 12 months. Kestrel Hydro appealed against the notice under section 289 of the 1990 Act. Holgate J. rejected that appeal on all grounds.

The issues in the appeal

5

As refined in written and oral argument before us, the appeal raises two main issues: first, whether the council's enforcement action was ultra vires because it sought to attack operational development that had been on the site for more than four years; and secondly, whether the inspector fell into error in his consideration of Kestrel Hydro's appeal under ground (f) of section 174(2). In their skeleton argument for the appeal Ms Saira Kabir Sheikh Q.C. and Mr Ned Westaway, who appeared for Kestrel Hydro, described the substance of the appeal in this way (at paragraph 4):

"In short, [Kestrel Hydro] contends that the juridical basis for extending the scope of [enforcement notices] beyond the breach of planning control enforced against either (i) derives from ground (f) and is associated with appeals brought on that basis or (ii) goes to the vires of enforcement action in Part VII of the [1990 Act] … Whether (i) or (ii) is correct, it is submitted that the Inspector's decision was flawed, the appeal should be allowed and the matter be remitted to the [Secretary of State] for re-hearing and redetermination …."

In addressing those questions we must consider the relevant provisions of the statutory scheme and the relevant case law, including the decision of the Divisional Court in Murfitt v Secretary of State for the Environment (1980) 40 P. & C.R. 254 and the first instance decisions in Somak Travel Ltd. v Secretary of State for the Environment (1988) 55 P. & C.R. 250 and Bowring v Secretary of State for Communities and Local Government [2013] J.P.L. 1417.

The statutory provisions

6

Section 55(1) of the 1990 Act defines two distinct types of "development": the "carrying out of building, engineering, mining or other operations in, on, over or under land" and "the making of any material change in the use of any buildings or other land". Section 336(1) provides that "except in so far as the context otherwise requires … "use", in relation to land, does not include the use of land for the carrying out of any building or other operations on it".

7

In Part VII of the 1990 Act, which contains the provisions for enforcement, section 171A(1)(a) provides that "carrying out development without the required planning permission" constitutes a breach of planning control. Section 171B, "Time limits", provides:

"(1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.

(2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.

(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 –

(a) the service of a breach of condition notice in respect of any breach of planning control if an enforcement notice is in effect; or

(b) taking further enforcement action in respect 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."

8

Section 172(1) provides that a local planning authority may issue an enforcement notice where it appears "(a) that there has been a breach of planning control"; and "(b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations".

9

Section 173 contains provisions for the content and effect of an enforcement notice. Section 173(1) requires an enforcement notice to state "(a) the matters which appear to the local planning authority to constitute the breach of planning control"; and "(b) the paragraph of section 171A(1) within which, in the opinion of the authority, the breach falls". Section 173(3) and (4) provides:

"(3) An enforcement notice shall 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.

(4) Those purposes are –

(a) remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land, by discontinuing any use of the 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."

Section 173(5) states that an enforcement notice "may, for example, require … (a) the alteration or removal of any buildings or works".

10

An appeal against an enforcement notice may be made under section 174. Section 174(2) provides:

"An appeal may be brought on any of the following grounds:

(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;

(d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;

(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;

(g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed."

Relevant case law

11

In Murfitt the Divisional Court – Waller L.J. and Stephen Brown J. – had to consider an enforcement notice in which the local planning authority had alleged a material change of use of a farmyard to use for a plant hire and haulage business. The notice required that the use of the site for the parking of heavy goods vehicles be ceased and the land restored to its condition before the change of use took place. The steps specified in the notice included the removal of hardcore placed on the land in association with the enforced against use. The appellant contended that the enforcement notice had not been directed...

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4 cases
  • R Liquid Leisure Ltd v Royal Borough of Windsor and Maidenhead
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 16 June 2022
    ...4 years (for operational development), following the case of Kestrel Hydro v Secretary of State for Communities and Local Government [2016] EWCA Civ 784, per Lindblom LJ, at 32 In the appeal, the Claimant challenged this approach and sought to separate the operational development from the ......
  • Manchester City Council v The Secretary of State for Levelling Up, Housing and Communities
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    • Queen's Bench Division (Administrative Court)
    • 10 May 2022
    ...Local Government [2014] EWCA Civ 1432; [2015] 1 P & CR 10, CAKestrel Hydro v Secretary of State for Communities and Local Government [2016] EWCA Civ 784, CAMiaris v Secretary of State for Communities and Local Government [2016] EWCA Civ 75; [2016] JPL 784, CAR v Leominster District Council,......
  • Esther Gurvits and Joseph Gurvits v Secretary of State for Levelling Up, Housing and Communities
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    • King's Bench Division (Administrative Court)
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    ...of the breach of planning control alleged in the notice. In Kestrel Hydro v Secretary of State for Communities and Local Government [2016] EWCA Civ 784 at [53] Lindblom LJ said – “…there was no legal requirement for [the Inspector] to consider the possibility of the works that have been ca......
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    ...Kimblin QC, anticipating that this point might be developed in argument, came to the hearing with copies of Kestrel Hydro v Secretary of State for Communities and Local Government [2016] EWCA Civ 784. The reasoning in that decision satisfies me that it was open to the district judge to reac......
2 books & journal articles
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    • Wildy Simmonds & Hill Planning Law. A Practitioner's Handbook Contents
    • 30 August 2019
    ...the Environment (1981) 41 P & CR 284, [1981] JPL 193, DC 195 Kestrel Hydro v Secretary of State for Communities and Local Government [2016] EWCA Civ 784 308, 309 Kotarski v Secretary of State for the Environment, Food and Rural Affairs [2010] EWHC 1036 (Admin), [2010] NPC 56 603, 607 Kotega......
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    • Wildy Simmonds & Hill Planning Law. A Practitioner's Handbook Contents
    • 30 August 2019
    ...could not act against works that were not part of the breach ( Kestrel Hydro v Secretary of State for Communities and Local Government [2016] EWCA Civ 784). Enforcement of Planning Control 309 14.23 An enforcement notice may, for instance, require: (a) the alteration or removal of any build......

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