Michael Roy Hammond v Secretary of State for the Environment (First Respondent) Maldon District Council (Second Respondent)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE BROOKE,SIR BRIAN NEILL |
| Judgment Date | 30 January 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J0130-13 |
| Docket Number | QBCOF 96/0174/D |
| Court | Court of Appeal (Civil Division) |
| Date | 30 January 1997 |
[1997] EWCA Civ J0130-13
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(MR JUSTICE DYSON)
Royal Courts of Justice
Strand
London WC2
Lord Justice Butler-Sloss
Lord Justice Brooke
Sir Brian Neill
QBCOF 96/0174/D
and
LORD KINGSLAND QC & MR ALAN MASTERS (Instructed by Stephen Fidler & Co. London, WC1X 8EB) appeared on behalf of the Appellant
MISS NATALIE LIEVEN (Instructed by Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Respondents
I will ask Brooke LJ to give the first judgment.
This is an appeal by Mr Michael Hammond against a judgment of Dyson J on 30th January 1995 when he refused his application made under section 289(1) of the Town and Country Planning Act 1990 seeking an order quashing a decision of the Secretary of State dated 13th July 1993. By that decision the Secretary of State had dismissed an appeal by Mr Hammond against an enforcement notice relating to the presence of a mobile home on his land at 8a Mill Road, Mayland, Essex.
Mill Road is a roughly gravelled cul-de-sac which runs north from Malden Road, Mayland. About 550 metres up Mill Road, close to the place where it narrows into Dock Road and on its eastern side, is a plot of land which Mr Hammond has rented since 1982. It is in open land north- east of the main built up area of Mayland. Descriptions of the surrounding area were given in the three decision letters by planning inspectors which are before the Court. It appears that at the southern end of Mill Road there was a large mushroom farm on the west, and a nursery and garden centre on the east, and beyond them a few houses were built before the war as dwellings which served smallholdings, each with a substantial area of land attached. The land whose front part is now rented to Mr Hammond, was and is designated for agricultural use, but in February 1976 CFF Nurseries, who were then the owners of that piece of land, together with other land nearby, obtained detailed planning permission for the erection of a dwelling house on the plot, subject to an agricultural occupancy condition, because they were able to prove an agricultural need. Although some foundation trenches were dug, no other steps were taken to make use of this permission before Mr Hammond appeared on the scene in 1982.
Mr Hammond is a self-employed landscape gardener. When he took over his plot, he brought a mobile home there and occupied it as his home with his wife and three children. In August 1984 a completion notice was confirmed, giving him one year to make use of the extant permission if it was not to lapse, and in that year he started building on the site. This building was erected on a different part of the land from that for which permission had been granted, and the local authority started to interest themselves in his activities in 1985. Eventually they served two enforcement notices on him on 1st August 1985 in which they took exception first to the erection of a structure and secondly to a material change of use in that a mobile home had been stationed on the land for the purpose of human habitation. The reason for the use of the word "structure" was that Mr Hammond was not at all forthcoming about what he was doing: when the notice was served, the walls were about half their final height. Soon after the enforcement notice was served he completed the building. It was now quite obviously a bungalow, into which he moved in September 1985: his family moved over from the mobile home to join him there the following April.
He had appealed against the two enforcement notices, and in August 1986 his appeal was allowed. Now that the nature of the building was known, the Inspector was willing to treat the word "structure" as if it read "dwelling", but since planning permission had indeed been given for the erection of a dwelling, he allowed the appeal against the first notice on the grounds that the breach of planning permission that had in fact occurred was not the breach described in the notice (and he considered it was unjust to amend the notice to correct that defect). He allowed the appeal against the second notice on the very technical ground that although no permission had ever been sought for the mobile home, on 1st August 1995 Mr Hammond was living in it while he was building the bungalow nearby. In those circumstances the Inspector held that at the time the enforcement notice was served, the use of the land as a caravan site constituted permitted development pursuant to Class XXII of Schedule 1 of the General Development Order 1977, which permits such use in any of the circumstances specified in paragraphs 2 to 9 of Schedule 1 to the Caravan Sites and Control of Development Act 1960.
Paragraph 9 of that Schedule provides, so far as is material:
"…, a site licence shall not be required for the use as a caravan site of land which forms part of, or adjoins, land on which building … operations are being carried out (being operations for the carrying out of which permission under Part III of the Act of 1947 has, if required, been granted) if that use is for the accommodation of a person or persons employed in connection with the said operations.
At the end of his decision letter the Inspector expressed the view that the bungalow was less visually obtrusive than the house would have been, and that the new position made vehicular access more straightforward.
In October 1986 the local planning authority served two further enforcement notices. On this occasion they limited themselves to complaints about the bungalow. The breaches of planning control relied upon were, first, the erection of a dwelling otherwise than in accordance with planning permission and, secondly, the erection of a dwelling (without any further qualification).
The mobile home had been empty after the family had moved into the bungalow in April 1986 but, according to Mr Hammond, his daughter, who was then about 15, moved back there at an unspecified date in 1987. In the meantime the bungalow had been refurbished. In September 1987 the mobile home was in fact still empty, as the second Inspector noted in the inspection he undertook following his inquiry on 2nd September 1987.
Mr Hammond had appealed against these notices, but this appeal was unsuccessful. Although in his decision letter written in October 1987 the second Inspector quashed the first notice, he upheld the second, which he said contained the appropriate language, following the decision of this court in Garland v Minister of Housing and Local Government [1969] 1 QB 77. He regarded the bungalow as a new and separate dwelling which had been erected without planning permission, and he declined to grant permission for its erection because he had been given no indication that it was needed in connection with the purposes of an agricultural enterprise. He therefore upheld the notice, but extended the period for compliance with the obligation to demolish the bungalow to 12 months, in order to allow Mr Hammond more time to relocate his family without unduly disturbing the children's education.
Mr Hammond did not demolish the bungalow. Instead he went on living in it with his family, and his daughter went on living in the mobile home. It was not until 23rd July 1992 that the council served another enforcement notice relating, this time relating to the mobile home. The breach alleged was "the stationing of a mobile home". When the notice was served on him, Mr Hammond told the officers who served it that his daughter, who was by now 20, was the occupier of the mobile home. He took them to inspect it, and he says that they said they would come back later that day and serve his daughter with a notice. They never did.
Four days later, on 27th July 1992, the 10-year rule introduced by section 4 of the Planning and Compensation Act 1991, which inserted a new section 171B into the Town and Country Planning Act 1990 ("the 1990 Act"), came into effect. The effect of this change in the present case was to provide that no enforcement action might now be taken after the end of the period of 10 years beginning with the date of the relevant breach of planning control.
Mr Hammond appealed against the 1992 notice, and an Inspector heard his appeal on 8th June 1993, together with two appeals by Mr and Mrs Hammond against the refusal of planning permission for the retention of the bungalow and for the erection of glasshouses on the site. Mr Hammond's appeal against the enforcement notice was founded on grounds (b), (c) and (d) in section 174(2) of the 1990 Act, that is to say: (b) that the matters stated in the notice had not occurred; (c) that those matters (if they occurred) did not constitute a breach of planning control; and (d) that on the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which might be constituted by those matters.
Mr Hammond did not pay the requisite fee, so that the Inspector did not have to consider whether planning permission ought to be granted. Nor, since he had been served with the relevant notice, did Mr Hammond rely on ground (e) ("that copies of the enforcement notice were not served as required by section 172"). His daughter did not attend the inquiry, and she maintains that she had no knowledge of the enforcement notice until after the inquiry was over.
In his decision letter dated 13th July 1993 the...
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