Secretary of State for Environment, Transport & Regions and Another v Wyatt Brothers (Oxford) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kennedy,Lord Justice Mummery,Lord Justice Sedley |
| Judgment Date | 26 October 2001 |
| Neutral Citation | [2001] EWCA Civ 1560 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 October 2001 |
| Docket Number | Case No: C/2000/3167 |
[2001] EWCA Civ 1560
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HH JUDGE RICH
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Kennedy
Lord Justice Mummery and
Lord Justice Sedley
Case No: C/2000/3167
Miss Alice Robinson (instructed by Treasury Solicitor for the appellants)
Mr Alun Alesbury (instructed by Morgan Cole Solicitors for the respondents)
Miss Harriet Murray (instructed by Oxfordshire County Council Legal Services for Oxfordshire County Council)
Introduction
This is an appeal by the Secretary of State from a decision of Judge Rich QC, sitting as a Deputy High Court Judge of the Queen's Bench Division in the Crown Office list who on 19 th September 2000 allowed the appeal of Wyatt Brothers against the decision of an Inspector appointed by the Secretary of State to determine Wyatt Brothers' appeals against three enforcement notices issued by Oxfordshire County Council concerning land at Waterstock Golf Course, Waterstock, Oxfordshire.
Before the Judge there were six grounds of appeal, and he allowed the appeal on one ground only, namely ground 2, which read as follows:
"The Inspector erred in law in holding that in spite of his powers under section 176(1)(b) of the 1990 Act (to vary the terms of the Enforcement Notice) he was not entitled to consider varying the notices in this case to avoid their requiring (as would otherwise be the case) the re-excavation of a 'lake' (being a water-filled mineral extraction void) whose existence in such a form was not justified by any planning permission or other document, and which no party to the appeal was arguing represented a desirable 'end state' once carried out."
In their Respondent's Notice in relation to the appeal to this court Wyatt Brothers challenge the Judge's decision on the 5 grounds on which they lost before him, but on the day before the start of the hearing before us Mr Alesbury for Wyatt Brothers helpfully indicated that he proposed only to pursue his cross-appeal on what before the judge was ground 1. That ground read:
"The Inspector erred in law in refusing (at the Inquiry held by him) to hear or consider evidence or argument on behalf of the claimant to the effect that the steps required by the Enforcement Notices exceeded what was necessary to remedy any injury to amenity caused by any breach of planning control in spite of the statutory sanction for appeal on such ground contained in section 174(2)(f) of the 1990 Act (as amended)."
It will be at once apparent that in this appeal no issue arises as to whether there was a breach of planning control, or as to the validity of the enforcement notices. The focus is upon the extent of the power of the Secretary of State to amend the requirements of the enforcement notices, and the admissibility of evidence and argument in relation to that issue. It is therefore possible to deal with the facts in less detail than would otherwise be required.
Background
In 1989 South Oxfordshire District Council granted planning permission to Wyatt Brothers for the development of a golf course and clubhouse and environmental reserve to include a cross-country ride and ancillary uses, on land at Waterstock.
An 18 hole golf course was then laid out and it was opened in 1994. On 21 st January 1994 conditional planning permission was given for "the formation of a reservoir for the purpose of irrigating the golf course, extraction of clay and access to the highway." The period for excavation was subsequently extended to November 1997, and that for restoration to November 1998. But problems arose because of the importation of material on to the site, mainly if not exclusively from a nearby motor-way service area site. In 1996 to 1997 Wyatt Brothers applied on two occasions to extend the golf course by adding a further 9 holes. Both applications were refused, and in 1997 the three enforcement notices were issued in relation to the material imported on to the site. As the judge pointed out, the third related to seventy four and a half hectares which included the land which was the subject of the earlier notices, so, for present purposes, those earlier notices can be largely disregarded. The third notice alleged that Wyatt Brothers had breached planning control by –
"Without planning permission, the making of a material change in the use of the Land to a mixed use as a golf course and use for the deposit of waste materials."
In the first and second enforcement notices the breach of planning control was-
"Without planning permission the making of a material change in the use of the Land to use for the deposit of waste materials."
In the third enforcement notice the reasons for issuing the notice read –
"It appears to the Council that the above breach of planning control has occurred within the last ten years. It is considered expedient to issue this notice because:
(i) The deposit of waste requires planning permission and none has been granted. Planning permission granted for the construction of an 18 hole golf course does not authorise the deposit of waste on the land.
(ii) The site lies within the Oxford Green Belt and in an area of Great Landscape Value as identified on the Oxfordshire Structure Plan and the Central Oxfordshire Local Plan. The development is contrary to the policies of those Plans which seek to protect such areas.
(iii) The scale of the activity involved in the waste tipping operation and the vehicle movements associated with it give rise to noise nuisance, dust problems during dry periods and mud on the roads during adverse weather conditions to the detriment of the amenities of local residents."
In the first and second notices the first two reasons are the same, but the third reason reads –
"The scale of the deposit of waste has a significant impact on the visual amenities of this attractive area of open countryside and obstructs the line of Footpath No 1."
All three notices made the same requirements of the recipient, namely –
"(1) Cease the deposit of waste materials on the Land.
(2) Remove all waste materials from the Land and dispose of such materials at a suitably licensed waste disposal site.
(3) Prepare the surface of those parts of the Land on which waste materials have been deposited so as to be suitable for seeding.
(4) After preparation of the Land as in (3) above, seed it with grass."
A time was specified for compliance with each step.
Wyatt Brothers appealed against the enforcement notices on 5 of the statutory grounds set out in 174(2) of the Town and Country Planning Act 1990, namely–
"(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;
(b) that those matters have not occurred;
(c) that those matters (if they occurred) do not constitute a breach of planning control;
(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;
(g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed."
As the prescribed fee was not paid to the Secretary of State and to the local Planning Authority within the specified period the appeals under ground (a) lapsed, and the deemed applications for planning permission under section 177 did not have to be considered.
The Inquiry before the Inspector was held early in 1999, and at the outset he invited submissions from both sides in relation to the admissibility of certain evidence. Part of section 173, which deals with the content and effect of an enforcement notice reads –
"(3) an enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes.
(4) Those purposes are –
(a) remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place; or
(b) remedying any injury to amenity which has been caused by the breach."
In Annex II to Departmental Circular 10/97 it is pointed out, in paragraph 2.30, that the use of the words "wholly or partly" in section 173(3) makes it clear that the local planning authority can "under-enforce" when specifying the steps they require to be taken, or the activities they require to cease in order to achieve the purposes specified in section 173(4) If it does so then planning permission will be treated as having been granted in respect of the balance of the activities which could have formed the subject matter of the notice (see section 173(11). The Circular goes on to assert that the "or" at the end of section 173(4)(a) is disjunctive. Paragraphs (a) and (b) specify two different categories of remedial requirement and, it is said, the local planning authority must choose which route to take. In paragraph 2.31 the Circular states –
"It follows from the construction of these provisions that the only type of enforcement notice...
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