LTSS Print and Supply Services Ltd v Hackney London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CAIRNS,LORD JUSTICE LAWTON,LORD JUSTICE GOFF |
| Judgment Date | 29 October 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J1029-2 |
| Date | 29 October 1975 |
| Court | Court of Appeal (Civil Division) |
[1975] EWCA Civ J1029-2
In The Supreme Court of Judicature
Court of Appeal
(Appeal of Second Respondent from Order of the Divisional Court, November 4, 1974.)
Lord Justice Cairns
Lord Justice Lawton and
Lord Justice Goff
MR GUY MANSFIELD for MR H. WOOLF, (instructed by the Treasury Solicitor) appeared on behalf of the Appellant (Second Respondent).
MR A. DAWSON, (instructed by Messrs. Kingsley, Napley & Co.) appeared on behalf of the Respondent (Appellant).
This is an appeal from the decision of a Divisional Court of the Queen's Bench Division in a case under the Town and Country Planning Act 1971. The appeal is brought by leave of the Divisional Court. The appellant is the Secretary of State for the Environment and the respondent is a company, LTSS Print and Supply Services Ltd., to which I shall refer as "LTSS". The appeal relates to a building which constitutes the southern part of 138 Kingsland Road, Shoreditch, and of which LTSS is the freeholder.
In December 1972 the Hackney Borough Council, the local planning authority, served on LTSS and on the occupiers of the premises (among others) an enforcement notice under Section 87 of the Act of 1971. The notice recited that the premises were being used for the sale of furniture without planning permission and required such sale to be discontinued.
The occupiers appealed under Section 88 of the Act to the Secretary of State and he directed an inquiry. Section 88 (7) provides that when such an appeal is brought the appellant is deemed to have applied for planning permission for the development to which the notice relates. The inquiry was held and the inspector reported on 20th December 1975, concluding that the notice was not invalid, on the basis that the use that was being made of the premises was for retail sale of furniture and that this was in breach of planning control. He recommended that planning permission should not be granted for such use.
By a decision letter dated 10th April 1974 the Secretary of State dismissed the appeal, upholding the enforcement notice and refusing planning permission for the current use, but he amended the notice to make it refer specifically to retail sales.
The occupiers had not been effectively represented at the inquiry and took no further step (being in fact a company in liquidation). LTSS, having been served with the enforcement notice, was entitled under Section 246 of the Act of 1971 to appeal to the High Court on points of law and exercised that right. The Hackney Borough Council took no further part in the proceedings.
On the hearing of that appeal the Divisional Court held that the Secretary of State had misconstrued one of the provisions of the Act of 1971 and that this might have affected his decision to refuse planning permission for retail sales. The court accordingly remitted the matter to him for reconsider-action in the light of the judgments that were delivered.
The Secretary of State appeals to this court contending: (1) that the Secretary of State was right in the construction) of the provision in question and the Divisional Court was wrong; and (2) that if the Secretary of State was wrong on this point it could not be shown to have influenced his ultimate decision.
By respondent's notice LTSS contended that the decision in the Divisional Court should be affirmed and on additional grounds.
The history of these premises as found by the Inspector was as follows. From at least 1961 they were used for some years for dealing in veneers and plywood, the trade being mainly wholesale. This was followed by a timber importing business, and there was nothing to indicate that this included any retail sales. By 1971 the timber importers had left and furniture was being displayed for retail sale. From October 1972 the use wasfor retail sale of furniture to the public. There was no evidence of planning permission having been obtained for any of these uses.
When the enforcement notice was served it was desired to have it set aside and to have planning permission granted for the retail business in furniture. But, failing that, it was desired to set up a "cash and carry wholesale grocery warehouse".
Now use as a wholesale warehouse is within Class X of the Town and Country Planning (Use Classes) Order 1972. Under Section 22 (2) (f) of the Act of 1971, when premises are used for a purpose within a class the use for another purpose within that class does not constitute development.
Section 23 (9) of the Act provides as follows: "Where an enforcement notice has been served in respect of any development of land, planning permission is not required for the use of that land for the purpose for which (in accordance with the provisions of this Part of this Act) it could lawfully have been used If that development had not been carried out."
The case of the occupiers presented to the Secretary of State, and of LTSS on appeal from him, was as follows: If the enforcement notice stood, the premises could again be used as a wholesale warehouse, this being the purpose which was authorised by Section 23 (9). A "cash and carry wholesale warehouse" was a "wholesale warehouse" within Class X. The ground on which the Inspector found that use for the retail sale of furniture was objectionable was that the site, on a principal traffic route out of and into London, with no adequate parking space, was not suitable for a business involving a lot of vehicular movement to and from the site. But, it was said, a cash andcarry grocery business would involve just as much vehicular movement. Therefore, there was no good reason for withholding planning permission for the current use.
Now Section 94 of the 1971 Act provides, inter alia, that a use of land is "established" if it was begun before the beginning of 1964 without planning permission and has continued since the end of 1965. A use which is an established use is immune from enforcement action. (Section 87 (1)). The Inspector found that the established use of the appeal site was as a wholesale warehouse or repository within Class X and the Secretary of State accepted this finding.
The Inspector at the end of paragraph 72 of his report said: "There is bound to be a good deal of vehicular movement to and from the site from Its established use, though it is arguable at the least whether this includes a use of the whole premises as a wholesale cash and carry." The Secretary of State held in paragraph 8 of his decision letter that a cash and carry establishment was not a wholesale warehouse, and in paragraph 11 he expressed himself as follows: "It, is pointed out that an established use is not a lawful use of land for the purposes of Section 23 (9) of the 1971 Act, it is merely a use which at a certain time becomes immune from enforcement action. Once an established use has been materially changed to another use Involving development, it is considered that the established use has been abandoned and there is no right to revert to the established use, which in this case was use as a wholesale warehouse For the reasons given in paragraph 8 above it is not considered that the previous use as a wholesale warehouse carried the right to be used as a 'wholesale grocers cash andcarry warehouse' and it is considered therefore that there is no right to revert to this use as was said to be your client's intention if the notice was upheld." in paragraph 13 the Secretary of State accepted the conclusions and recommendations of the Inspector except as to established use - which I take to mean that whereas the Inspector was in doubt as to whether the established use would cover a cash and carry warehouse the Secretary of State was satisfied that it would not.
The Divisional Court (the Lord Chief Justice, Mr. Justice Bridge and Mr. Justice Shaw - as he then was) allowed LTSS's appeal from the decision of the Secretary of State because they held that he was wrong in law in holding that there was no right under Section 23 (9) to revert to a use for which no planning permission had been obtained, but which was immune from enforcement because it had become an established use. They considered it very unlikely that the Secretary of State would have decided to give planning permission for the current use if he had taken a different view of Section 23 (9), but thought it possible that he might have been influenced by the error of law which they held him to have made and accordingly remitted the case to him for reconsideration in the light of the judgments.
Now the primary question on this appeal is as to the meaning of the word "lawfully" in Section 23 (9), taken in conjunction with the words "in accordance with the provisions of this part of this Act". The Lord Chief Justice said: "I think that that subsection permits the return to any use which could be carried on at the time of the development enforced against without breach of the planning statutes and without the risk of enforcement action being taken against him." Mr.Justice Bridge agreed with the judgment of the Lord Chief Justice, subject to reserving his opinion as to whether there would be a right to revert to the earlier use if that use had begun after the end of 1963. In the later case of W. T. Lamb & Sons Ltd. -v- Secretary of State for the Environment and Others (unreported) Mr. Justice Bridge held that there would be such a right because the continuance of a use begun in breach of planning control was not unlawful unless and until an enforcement notice had been served in respect of It. In that judgment the other members of the Divisional Court (Mr. Justice Eveleigh and Mr. Justice Wien) concurred.
In the present case the Divisional Court found strong support for their construction of Section 23 (9)...
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