Shand v Leicestershire County Council and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Schiemann,Sir Christopher Staughton |
| Judgment Date | 27 February 2002 |
| Neutral Citation | [2001] EWCA Civ 226 |
| Date | 27 February 2002 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: 01/0647, 01/0648, 01/0849, 01/0850 |
[2001] EWCA Civ 226
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT (Newman J.)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Schiemann
Lord Justice Chadwick and
Sir Christopher Staughton
Case No: 01/0647, 01/0648, 01/0849, 01/0850
Timothy CORNER (instructed by Treasury Solicitor for the 1 st Appellant)
Stephen HOCKMAN Q.C. and Kevin LEIGH (instructed by Jennings Son and Ash Solicitors for the 2 nd.Appellant)
John HOBSON Q.C. and Paul BROWN (instructed by Sharpe Pritchard for the Respondent)
1. Before the court are appeals from a judgment of Newman J. in relation to two enforcement notices served under the Town and Country Planning Act 1990 (‘the 1990 Act’). They were served by the Thurrock Borough Council who are the Local Planning Authority (“ LPA”). They concern land at King's Farm, Orsett, Essex. In relation to each of the notices there are two appellants—the Secretary of State and the landowner, Mr Holding. The two notices deal with entirely separate matters. One concerns a change of use and raises a point of general importance in relation to the proper approach to cases where it is alleged that the issue of an enforcement notice is time barred. The other concerns the grant of planning permission on an enforcement notice appeal. It is convenient to look at them separately. I deal first with the change of use notice.
The change of use notice : The section 289 appeal
2. Difficulties always arise in the framing of an enforcement notice alleging a material change in the use of land. A use can vary in intensity and significance. Take the sort of case with which we are concerned. To start using a field once a day for one take off and one landing might well be regarded in certain locations as not involving a material change of use. On the other hand, to start using it for more than 50 aircraft movements per day might well be regarded as a material change. What if there is a gradual escalation from 2 to 50 movements? At what stage have the aircraft movements reached a degree of frequency which should be described as involving a material change of use? There is a further complication. It may be that in a particular case the view is taken that 30 movements involve a material change of use but that there are no good planning grounds for putting a stop to aircraft movements not exceeding 50 per day.
3. This enforcement notice was concerned with the use of some open land near a farm house. During the past 20 years from time to time aeroplanes have landed and taken off there. The degree of activity has fluctuated. In 1999 the LPA decided to take enforcement action. The landowner said they were too late. An Inspector appointed to hear the enforcement notice appeal upheld that contention. The judge, on an appeal by the LPA, held that the Inspector had made an error of law and quashed his decision. The landowner and the Secretary of State appeal to this court.
The statutory Background
4. Planning permission is required for the carrying out of development : s. 57(1). 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 LPA that there has been a breach of planning control and that it is expedient to issue an enforcement notice the LPA may do so : s.172(1). The issue of an enforcement notice constitutes taking enforcement action : s.171A(2). The notice must “state the matters which appear to the LPA 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 require to cease in order to achieve, wholly or partly, the remedying of the breach : s.173 (3) and (4). Where an enforcement notice could have required any activity to cease but does not do so and all the requirements of the notice have been complied with then planning permission shall be treated as having been granted in respect of the carrying out of those activities : s.173(11).
5. Provision is made for various limitation periods in respect of enforcement notices. In the case of the erection of a building the period is four years from substantial completion : s. 171B(1). We are not concerned with that. We are concerned with an enforcement notice which alleges a breach of planning control consisting of the making of a material change in the use of land. In such a case the Act provides that in general “no enforcement action may be taken after the end of a period of ten years beginning with the date of the breach” : s.171B(3).
6. Rather than wait and see whether or not the LPA decide to serve an enforcement notice, the landowner can apply to the LPA for a certificate of lawfulness of existing use : s.191. “For the purposes of this Act uses … are lawful at any time if … no enforcement action may then be taken in respect of them …” : s.191(2).
7. A person served with a notice may appeal to the Secretary of State for the Environment against it on a number of grounds set out in s.174(2) each of which is allocated a letter in that subsection. Thus he can appeal on ground (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”; or on ground (b) “that those matters have not occurred; or on ground (c) “that those matters … do not constitute a breach of planning control”; or on ground (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”.
8. In certain cases, of which the present was one, an Inspector appointed by the Secretary of State can hold an inquiry and himself decide the appeal. He must “notify his decision on the appeal and his reasons for it in writing” to the appellant : Town and Country Planning (Enforcement) (Inquiries Procedure) Rules 1992 rule 20. He has power to correct any defect, error or misdescription in the enforcement notice and to vary the terms of the enforcement notice if he is satisfied that this will not cause injustice : s. 176(1).
9. Where, as in the present case, an enforcement notice is quashed by the Inspector there is a right of appeal to the High Court on a point of law : s.289(1).
The Enforcement Notice
10. On 15.7.1999 the enforcement notice was served on the landowner.
11. The crucial parts of the notice read as follows:—
3. THE BREACH OF PLANNING CONTROL ALLEGED: without the benefit of planning permission the change use [ sic] of the land from domestic purposes and agriculture to use for domestic purposes, [ sic] and as an airfield and for the storage of aircraft.
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 use of the Land and Buildings as an airfield in excess of the levels identified in the requirements of the Notice would give rise to damage to residential amenity and visual damage to the countryside. ….
5. WHAT YOU ARE REQUIRED TO DO:
(i) There shall be no microlight movements, except in an emergency.
(ii) There shall be no helicopter movements, except in an emergency.
(iii) There shall be no training flights.
(iv) Cease all aircraft movement in excess of 4 before 7.00 hours and after 23.00 except in an emergency.
(v) Cease all movements of aircraft … in excess of 50 a day.
(vi) Cease the covered storage of aircraft in excess of 11 aircraft.
(vii) Cease the outside storage of aircraft in excess of 14 aircraft.
(viii) Cease all airshows in excess of one per year.
(ix) Cease all airshow activity before 9.00 hours and after 19.00 hours
12. It is clear that the notice is badly framed. Paragraph 3 has one or more words missing. It would have been better framed had it read “Without the benefit of planning permission, the making of a material change in the use of the land from use for domestic purposes and agriculture to use for domestic purposes and as an airfield and for the storage of aircraft.”
13. It can fairly be said that it must have been clear to the landowner from a perusal of the notice that this was what was intended and, moreover, that the LPA had no objection in principle to a fair amount of aeroplane activity in the field. Had the enforcement notice come into force, planning permission would have been treated as having been granted in respect of those airfield activities and storage of aircraft activities which did not infringe the conditions set out in paragraph 5 of the notice. This presumably was not enough for the landowner otherwise he would not have appealed the notice. What was objectionable, in the eyes of the LPA, was aeroplane activity which infringed those conditions.
The Decision Letter
14. The relevant parts of the Inspector's decision letter read as follows. I have italicised certain passages to which I shall refer later in this judgement.
2. In this appeal the onus is upon the appellant to demonstrate, on the balance of probabilities, that the material change of use from domestic and farming use to an [ sic] airfield and aircraft storage started more than ten years before the date of the Notice i.e. on or before 15 July 1989. The decision of the High Court...
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