Newbury District Council v Secretary of State for the Environment
| Jurisdiction | UK Non-devolved |
| Judge | Viscount Dilhorne,Lord Edmund-Davies,Lord Fraser of Tullybelton,Lord Scarman,Lord Lane |
| Judgment Date | 28 February 1980 |
| Judgment citation (vLex) | [1980] UKHL J0228-1 |
| Date | 28 February 1980 |
| Court | House of Lords |
[1980] UKHL J0228-1
Viscount Dilhorne
Lord Edmund-Davies
Lord Fraser of Tullybelton
Lord Scarman
Lord Lane
House of Lords
My Lords,
On the 7th May 1962 the appellants, the International Synthetic Rubber Co Ltd (hereafter referred to as 'I.S.R.') sent to the Hungerford Rural District Council who were then acting for the Berkshire County Council, then the local planning authority, an application dated the 3rd May 1962 for permission to use two hangars on what had been Membury Airfield as warehouses for the storage of synthetic rubber. They said that they were prospective buyers of the hangars from the Air Ministry and that as considerable capital outlay would be involved, "it would be appreciated if the planning authorities could see their way to giving their permission to cover as long a period forward as is possible."
I.S.R. were then occupying one of the hangars under a lease granted to them by the Secretary of State for Air for nine years commencing on the 8th May 1961.
On the 31st May 1962 the Hungerford Rural District Council gave that company permission to use the two hangars as warehouses subject to two conditions, one being that
"The buildings shall be removed at the expiration of the period ending December 1972."
The written statement of the Berkshire County Council which accompanied the county map in February 1960, said that:—
"Problems have arisen from time to time regarding the use of buildings on sites relinquished by Government Departments. These are often suitable in design for industrial or storage use, although frequently their location in open countryside renders them unsuitable in location as permanent centres of employment and detrimental to landscape amenities. The Local Planning Authority will normally only permit permanent changes of use in localities appropriate in the light of their general policy objectives for the distribution of employment: otherwise they will seek to secure the removal of the buildings. Temporary periods of changed use may be permitted in particular circumstances."
On the 26th July 1962 I.S.R. bought the two hangars and the Secretary of State's leasehold interest in the land under a lease for forty years which commenced on the 30th November 1961.
I.S.R. did not, as they could have done, appeal against the imposition of the condition that the hangars should be removed. On the 4th November 1969 they applied for planning permission to make an extension to an existing office on the Airfield. They were given permission to do so subject to the condition that at the expiration of the period ending the 31st December 1972 the building should be removed.
On the 5th November 1970 I.S.R. applied for an extension of the permission to use the hangars as warehouses for thirty years. On the 4th January 1971 this application was refused and on the 25th June 1971 I.S.R. appealed against this refusal.
The two hangars and the extension to the office were not removed at the expiration of the period ending the 31st December 1972, and on the 12th November 1973, the hangars and extension still not having been removed, the Hungerford Rural District Council served two enforcement notices on I.S.R. requiring their removal within three months.
I.S.R. appealed against these notices to the Secretary of State for the Environment. Although the case in respect of the enforcement notice relating to the office extension differed in some respects from that relating to the notice applying to the hangars, it was agreed that the result of the appeal as to the notice in respect of the office extension should depend on and follow the result of the appeal as to the notice about the hangars. No separate argument was therefore advanced in connection with the office extension.
These appeals were brought under section 88 of the Town and Country Planning Act 1971 which provides for an appeal against an enforcement notice on any of seven grounds. In this case only the first two are relevant. They are as follows:—
"( a) that planning permission ought to be granted for the development to which the notice relates or, as the case may be, that a condition or limitation alleged in the enforcement notice not to have been complied with ought to be discharged;
( b) that the matters alleged in the notice do not constitute a breach of planning control."
In the notice of appeal relating to the hangars it was asserted, firstly, that the condition as to the removal of the hangars was void with the result that the permission granted in 1962 was unconditional, and, secondly, that the authorised use of the hangars on the 1st July 1948, the date when the Town and Country Planning Act 1947 came into force, was "warehouse/storage" and that the hangars were used for "warehouse /storage purposes throughout the period 1948/62."
If the authorised use of the hangars on the 1st July 1948 was "warehouse/storage" and that use had not been abandoned or if the "existing use" of the hangars was for "warehouse /storage purposes", it was not necessary to apply for planning permission to use the hangars for those purposes.
The first question to be considered in this appeal appears to me to be:—
WAS PLANNING PERMISSION NECESSARY FOR THE USE BY I.S.R. OF THE HANGARS AS WAREHOUSES?
Before making his decision on these appeals the Secretary of State directed a local inquiry. The inspector who held the inquiry reported on the 5th February 1975. His findings of fact were accepted by the Secretary of State and the relevant findings were as follows:— that Membury Airfield ceased to be operational in 1947; that from 1947 to 1953 the hangars were used as a storage depot on behalf of the Ministry of Agriculture, Fisheries and Food; that in 1953 the airfield was transferred to the United States Air Force and the use then made of the hangars is not known; that in 1954 it became a sub-depot of No 3 Maintenance Unit at Milton; that from 1955 to 1959 the hangars were used by the Home Office for the storage of Civil Defence vehicles; and that in 1959 an eleven year permission was granted for the use of the hangars for the storage of fertilisers subject to the condition that at the end of that period the hangars would be removed.
The inspector concluded on these facts that there was a clearly established use of the hangars when in Crown occupation prior to 1959 for storage and that the only gap in their use for storage was when they were used by the United States Air Force and that after that, use for storage was resumed. In his view the application for permission to use them for the storage of fertilisers in 1959 was unnecessary and I.S.R. did not require planning permission to use them for storage as that was their previous use.
The Secretary of State in his decision letter of the 24th July 1975 held that when the hangars were used for storage purposes from 1947 to 1953 and again from 1955 to 1959 the hangars formed an independent planning unit. He held that the Home Office use of them was not use as wholesale warehouses nor was it use as repositories coming within Class X of the Town and Country Planning (Use Classes) Order.
It was not contended by the appellants that the use by the Home Office was use as wholesale warehouses but it was submitted that the hangars were then used as repositories.
By the Town and Country Planning (Use Classes) Order 1948 (which came into force on the same day as the Town and Country Planning Act 1947) it was provided by paragraph 3(1) that
"Where a building or other land is used for a purpose of any class specified in the Schedule to this Order, the use of such building or other land … shall not be deemed for the purposes of the Act to involve development of the land".
Class X in the Schedule read as follows:—
"X.—Use as a wholesale warehouse for any purpose, except storage of offensive or dangerous goods".
and Class XI as follows:—
"XI.—Use as a repository for any purpose except storage of offensive or dangerous goods."
'Repository' was defined in this Order as meaning
"a building (excluding any land occupied therewith) where storage is the principal use and where no business is transacted other than incidentally to such storage."
The meaning of 'wholesale warehouse' was also defined.
In 1950 this Order was replaced by the Town and Country Planning (Use Classes) Order 1950. The purpose of this Order was to amalgamate certain of the use classes so that a wider range of changes of use might take place without involving development requiring planning permission.
Classes X and XI of the 1948 Order were amalgamated and Class X in the 1950 Order read as follows:—
"X.—Use as a wholesale warehouse or repository for any purpose."
In subsequent Use Classes Orders, this has not been altered.
The definitions of 'repository' and 'wholesale warehouse' were omitted from the 1950 and subsequent Use Classes Orders but, if it had been the intention that these words should bear a different meaning from that they bore from 1948 to 1950, I would have expected that to have been made clear.
In my opinion the definition of 'repository' in the 1948 Order is an excellent definition of the meaning that would ordinarily be given to that word.
The Secretary of State based his decision on a sentence of Lord Denning's in his judgment in Trentham Ltd. v. Gloucestershire County Council [1966] 1 W.L.R. 506. Lord Denning had pointed out that under Class X a building used as a repository for storing furniture could be used as a repository for storing archives without getting planning permission and...
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