Ronald M. Duguid v Secretary of State for The Environment, Transport and The Regionswest Lindsey District Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,Lord Justice Judge,Mr Justice Bell |
| Judgment Date | 28 July 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0728-15 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 2000 |
| Docket Number | Case No: QBCOF 1999/1243/C |
[2000] EWCA Civ J0728-15
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Ward
Lord Justice Judge and
Mr Justice Bell
Case No: QBCOF 1999/1243/C
Timothy Comyn (instructed by Chattertons for the Appellant)
Alice Robinson (instructed by the Treasury Solicitor for the Respondent)
The Problem.
When he allowed the appellant leave to appeal, His Hon. Judge Rich Q.C. (sitting as a Deputy High Court Judge of the Queen's Bench Division) stated as his reasons for that decision that there was an "arguable point on new provisions of (the Town and Country Planning Act 1990) of some general importance" to a recurrent problem of how to safeguard an established or permitted use of land to which a landowner could revert after an enforcement notice had required him to discontinue other uses of the land in breach of planning control.
The Lie of the Land.
We are concerned with part of the old R.A.F. airfield at Hemswell in Lincolnshire. The R.A.F. still occupy part of the property but much of it has passed into private ownership. The appellant, Mr Ronald Duguid, acquired some 18 hectares of the disused airfield in 1983. It was put to agricultural use, which is the permitted use for the land. In about November 1989 part of the land was first used for the purpose of car parking to serve the former technical site on the airfield. An application for planning permission for the construction of a car park was, however, refused. Nevertheless the car parking continued and in 1992 hardstanding roadways were constructed to facilitate that use. Part of the site also became used by a tenant for Sunday markets and when the tenancy ended towards the end of 1993, the appellant later re-opened the operation himself and continued to use the site for Sunday markets and the parking of motor vehicles. An application for permission to continue use of the land for car parking was refused in November 1995. On 12th February 1996 the local council, being the West Lindsey District Council, issued an enforcement notice to stop the use of the land for the holding of the markets and car boot sales. The appellant appealed against that enforcement notice, a public inquiry was held but on 12th March 1997 the inspector dismissed that appeal.
It would appear that the appellant continued to use the enforcement site for the parking of motor vehicles after the time for compliance had passed but at least he relocated the market and car boot sale enterprise to another area of his land to the west of the site which had been identified in that enforcement notice. He installed portable toilets and connected septic tanks. On other parts of his property he continued the agricultural use growing cereals and other arable crops.
As the Director of Development Services reported to the Planning Committee on 6th August 1997:-
"22. From investigations carried out by the enforcement officer, immediately before and after the compliance date within the previous enforcement notice, it appears that, by fact and degree the current use of the site is a material change of use and the whole planning unit has a mixed agricultural cereal growing use and use for car parking and Sunday markets …
23. Whilst the site owner has relocated the market to land outside the area covered by the previous enforcement notice, I am of the opinion that a breach of planning control continues to take place. To prevent the market and parking being shifted to different areas within the site it is recommended that the whole planning unit be enforced against, as indicated on the plan accompanying this report."
His recommendation was accepted and the council considered it expedient to issue an enforcement notice on 23rd December 1997 relating to the appellant's land at Gainsborough Road, Hemswell Cliff, Lincolnshire.
The relevant terms of that notice were as follows:-
"3. THE MATTERS WHICH APPEAR TO CONSTITUTE THE BREACH OF PLANNING CONTROL.
Without planning permission, change of use of the land from use for agriculture to mixed uses of:—(i) agriculture (ii) parking of motor vehicles and (iii) holding markets and/or car boot sales.
4. REASONS FOR ISSUING THIS NOTICE.
It appears to the Council that the above breach of planning control has occurred within the last ten years.
The site is located within an area of open countryside wherein it is the policy of the District Planning Authority that development will be strictly controlled … and will only be permitted where essential to the needs of agriculture … or which otherwise is in accordance with specific adopted policies. The use of the site for holding Sunday markets, car boot sales and car parking is in conflict with Structure Plan policy 97 and West Lindsey Local Plan Deposit Draft Policy C1, and is alien and highly intrusive, completely destroying the open character of the site itself, and seriously detracting from the appearance of the wider rural area.
The Council do not consider that planning permission should be given, because planning conditions could not overcome these objections.
5. WHAT YOU ARE REQUIRED TO DO.
(i) stop using any part of the land for the purpose of parking motor vehicles
(ii) using any part of the land for the purposes of holding markets and/or car boot sales
(iii) remove from the land the portable toilet … and the connected septic tank
(iv) remove from the land the four hardstanding roadways and linking roads constructed in connection with motor vehicle parking …
(v) following the removal of the hardstanding roadways and septic tank … seed the said parts of the land with grass.
6. TIME FOR COMPLIANCE
(i) and (ii) 1 month after this notice takes effect.
(iii) 6 weeks after this notice takes effect.
(iv) 3 months after this notice takes effect.
(v) 9 months after this notice takes effect.
7. WHEN THIS NOTICE TAKES EFFECT.
This notice takes effect on 16th February 1998, unless an appeal is made against it beforehand."
Mr Duguid exercised that right of appeal on the grounds provided by section 174(2)(a), (b), (c), (d), (f) and (g) of the 1990 Act. Mr W.J. Weeks F.R.I.C.S. was appointed by the Secretary of State for the Environment to determine the appeal. He held an enquiry into the appeal on 11th August and 2nd September 1998. He made two inspections and he dismissed the appeal, upheld the notice varied only by extending the periods for compliance and he refused to grant planning permission on the application deemed to have been made under Section 177(5) of the Town and Country Planning Act 1990 as amended.
For present purposes it is material to record how the Planning Enforcement Officer dealt with a ground of the appeal that there was no breach of planning control. In his written evidence to the inspector he said:-
"5.1 By fact and degree the activities taking place on the land within the enforcement site on Sundays, the use of the land on other days and the permanent appearance of the land used for the market and parking, i.e. planting of hardwearing turf, white painted lines, advertisements displayed, located toilet connected to a septic tank, the white metal post, the hardcore and compounded earth roadways have the appearance of a permanent market site.
5.2 The use is not seen as a temporary use granted planning permission by Article 3 and Class B of Part 4 of Schedule 2 of the Town and Country Planning (General Permitted Development) Order 1995, but a material change of use."
Under that order ("the GPDO") a temporary change of use is authorised for any purpose for not more than 28 days in total in any calendar year of which not more than 14 days in total may be for the purposes of the holding of a market or car boot sale. As I understand it, no application was made to the Inspector to amend the enforcement notice in order specifically to deal with any use of the land pursuant to the GPDO.
With the leave of Mr Malcolm Spence Q.C. (sitting as a deputy High Court Judge of the Queen's Bench Division) Mr Duguid nonetheless appealed contending in his notice of application that:-
"3. The evidence led by the West Lindsey District Council … was to the effect and purpose that the market enforced against was a permanent market held on the land on Sundays and other days. That is, a use not seen as a temporary use granted planning permission by (the GPDO) but a material change of use without the benefit of planning permission to a permanent use for markets.
4. In the circumstances of the case and by reason of the rule in Mansi v Elstree R.D.C. [1964] as applied or extended in Monomart (Warehouses) Ltd. v S.S. (1977) 34 P. & C.R.P. 305; Day & Others v S.S. (1980) 78 L.G.R.P. 27; Newport v S.S. (1980) 40 P. & C.R. p. 261; Cord v S.S. & Torbay B.C. (1981) J.P.L. p. 40; this was a case where the inspector was required in law to see to it that the requirements of the enforcement notice did not prohibit any use or activity which Mr Duguid was or is entitled to carry on the land by virtue of any provision of the relevant legislation namely, the Town and Country Planning Act 1990; including the holding of 14 one day markets on the land by virtue of planning permission granted under Section 58(1)(a) and … (the GPDO).
5. Accordingly the decision of the Secretary of State by his inspector should be remitted by the court to the Secretary of State … for...
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