Sanders v First Secretary of State
| Jurisdiction | England & Wales |
| Judge | Mr Justice Richards,MR JUSTICE RICHARDS |
| Judgment Date | 27 May 2004 |
| Neutral Citation | [2004] EWHC 1194 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6877/2003 |
| Date | 27 May 2004 |
[2004] EWHC 1194 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Richards
Case No: CO/6877/2003
Mr Ian Dove QC and Mr Satnam Choongh (instructed by Hewitsons Solicitors) for the Appellants
Mr John Litton (instructed by The Treasury Solicitor) for The First Secretary of State
Mr Peter Harrison (instructed by Ms Colleen O'Boyle) for Epping Forest District Council
The appellants own land at Galley Hill Yard, Galley Hill Road, Waltham Abbey in Essex. The site is the subject of an enforcement notice issued on 15 April 2003 by Epping Forest District Council and upheld on appeal, in a decision dated 27 November 2003, by an inspector appointed by the First Secretary of State. The appellants seek to appeal under s.289 of the Town and Country Planning Act 1990 against the inspector's decision. The case has been listed as a hearing of the application for permission to appeal, with the hearing of the substantive appeal to follow immediately if permission is granted. This means that I have had the benefit of full argument on the issues.
Statutory framework
Planning permission is required for the carrying out of development: s.57(1) of the 1990 Act. The making of a material change in the use of land is development: s.55(1). Carrying out development without the required planning permission constitutes a breach of planning control: s.171A(1). Where it appears to a local planning authority that there has been a breach of planning control and that it is expedient to issue an enforcement notice the authority may do so: s.172(1). The issue of an enforcement notice constitutes the taking of enforcement action: s.171A(2). The notice must state the matters which appear to the authority to constitute the breach of planning control: s.173(1). The notice complies with this requirement if it enables the person on whom it is served to know what those matters are: s.173(2). The notice must specify the activities which the authority requires to cease in order to achieve, wholly or partly, the remedying of the breach: s.173(3)-(4).
Provision is made under s.171B (which was inserted into the 1990 Act by s.4 of the Planning and Compensation Act 1991) for various limitation periods in respect of enforcement notices. In the case of building works, the period is four years from substantial completion of the works: s.171B(1). Other forms of development, including the making of a material change in the use of land, are covered by s.171B(3) which reads:
"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."
In certain circumstances, under what is known as the "second bite" provision, an additional four years is allowed for enforcement action. Thus s.171B(4) provides:
"The preceding sections do not prevent � (b) taking further enforcement action in respect of any breach 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."
A person served with an enforcement notice may appeal to the Secretary of State against it on a number of grounds set out in s.174(2), including (a) "that, in respect of the breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted", (b) "that those matters have not occurred", (c) "that those matters � do not constitute a breach of planning control", (d) "that, at the date when the enforcement 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", and (g) "that any period specified in the notice [for compliance] falls short of what should reasonably be allowed".
In certain cases, of which this was one, an inspector appointed by the Secretary of State can hold an inquiry and determine the appeal. He has power to correct any defect, error or misdescription in the notice and to vary the terms of the notice if he is satisfied that this will not cause injustice: s.176(1).
An appeal on a point of law lies, with permission, against the inspector's decision: s.289.
Factual background
On 22 April 1999 the council issued an enforcement notice ("the first notice") alleging the following breach of planning control in relation to the site:
"Without planning permission, a material change in the use of the land including subdivision from agricultural use to a mixed commercial use for purposes within Classes B1, B2 and B8 of the Use Classes Order 1987 and sui generis uses including:
(a) Storage of plant, machinery, equipment, goods and materials including aggregate and other building materials;
(b) Wholesale supply of goods;
(c) Repair, storage, maintenance and parking of all types of motor vehicles;
(d) Scrap metal recovery;
(e) Metal work in manufacture and repair; and
(f) Siting of portacabins in connection with the above uses."
On appeal, in a decision dated 22 February 2000, an inspector quashed the first notice on the basis that the case as presented by the council at the inquiry represented a complete change from the allegation in the notice, and the notice could not be corrected without causing injustice to the appellants. He stated:
"8. � However, it appears to me that the whole basis of the Council's case has changed. The breach of control alleged in the notice, involving a material change of use from one use, agriculture, to another, albeit composite, commercial use, is in my view fundamentally different from what had seemingly become the Council's case at the inquiry, namely a material change from some form of commercial use of the site as a whole in 1989, even if this included a number of elements, to a variety of separate and diverse commercial uses forming separate planning units in April 1999 when the notice was issued. �
9. The change in the Council's case has clear implications for the appellants' ability to respond to the enforcement notice. It must be clear in relation to the ground (d) appeal what has to be compared over the 10-year period. It is therefore in my view incumbent upon the Council, having concluded that there was not a single composite use but a number of separate planning units, to spell out in the notice each of those units and the uses allegedly occupying them. This was not done. � Had these separate uses and planning units been alleged in the notice, it may have been possible for the appellants to argue, based on the enforcement officer's report of his visits to the site, that some parts of the site had been occupied by similar uses in 1989 and were therefore immune from enforcement action. The change in the Council's case, which became fully clear only at the inquiry, could therefore have caused them injustice."
On 15 April 2003 the council issued the notice that is the subject of the present challenge ("the second notice"). The breach of planning control alleged in para 3 of the notice was as follows:
"Without planning permission:
Within the ten years prior to the 22 nd of April 1999, a material change of use of the land through subdivision of the planning unit, intensification, resumption of abandoned uses and introduction of new uses to use for mixed commercial purposes within classes B1, B2 and B8 of the Use Classes Order 1987 and sui generis uses including:
(a) Storage of computers
(b) Storage of plant, machinery, equipment, goods and materials including aggregate, drainage pipes and other building materials and equipment,
(c) Woodworking
(d) Repair, storage, maintenance and parking of all types of motor vehicles
(e) Paint spraying of motor vehicles
(f) Overnight Lorry parking
(g) Outdoor storage of tyres
(h) Pallet storage
(i) Storage of Lorry container bodies
(j) Scrap metal storage
(k) Scrap metal recovery
(l) Metal work manufacture and repair
(m) Scaffolding depot
(n) Highway repair depot
(o) Bill posting depot
(p) Use of the land for siting and stationing of portacabins in connection with the above uses
(q) Use of the land for the siting and stationing of caravans in connection with the above uses
(r) Use of lorry container bodies as ancillary accommodation in connection with the above uses
In addition there has been the creation of hardstanding and other facilities and the erection of security fences and gates to subdivide and enclose the land to facilitate the above uses."
By para 5 of the notice, the appellants were required to do the following:
"(a) Cease the use of the land for the purposes set out in 3 above
(b) Remove from the land and not return all machinery, goods, plant, equipment, storage racks, caravans, portacabins, container lorry bodies and other materials or similar equipment brought onto the land in connection with the uses set out in 3 above
(c) Remove from the land hardstanding laid down since 23 rd April 1989 in connection with the use of the land for the purposes set out in 3 above
(d) Remove from the land subdividing fences and gates erected since 23 rd April 1989 in connection...
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