Staffordshire County Council v Challinor and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Keene,Lord Justice Hughes,Lord Justice Rix,Lord Justice Tomlinson,Lord Justice Jacob |
| Judgment Date | 09 February 2011 |
| Neutral Citation | [2007] EWCA Civ 864,[2011] EWCA Civ 90 |
| Date | 09 February 2011 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A1/2007/0576,Case No: A2/2010/0117 |
[2007] EWCA Civ 864
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF
JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
TECHNOLOGY AND CONSTRUCTION COURT
Her Honour Judge Kirkham
(sitting as a Deputy High Court Judge)
5 BM 50067
Lord Justice Rix
Lord Justice Keene and
Lord Justice Hughes
Case No: A1/2007/0576
Ian Dove QC, Nicola Preston and Richard Kimblin (instructed by Staffordshire County Council, Resources Directorate) for the Appellant
Anthony Smith QC and Patrick Darby (instructed by Messrs Dunham, Guest & Lyons, WS11 1AP) for the Respondent (1)
In person Respondent (2) (Litigation friend R B Dlmitis)
Hearing dates: Wednesday 20th June and Thursday 21st June 2007
Judgement
Introduction
Planning control is the creature of statute. It is now almost exactly sixty years since Parliament, on 6 August 1947, passed the first truly comprehensive town and country planning legislation. For most of the subsequent period, since in fact August 1960, it has been a feature of the statutory scheme that, once an enforcement notice directed at a breach of planning control has been through the appeal process or the time for appeal has expired, the notice cannot be challenged in any subsequent proceedings, civil or criminal, on any ground on which an appeal against the notice lay. That prohibition is now contained in section 285(1) of the principal statute now applicable, the Town and Country Planning Act 1990 (“the 1990 Act”). The terms of the subsection are set out in paragraph 36 of this judgment.
One of the grounds on which an appeal to the Secretary of State against an enforcement notice may be brought under section 174 of the 1990 Act is that
“at the date when the notice was issued, no enforcement action could be taken”
in respect of the alleged breach of planning control (section 174(2)(d)). This provision reflects the fact that the legislation has, in its various forms over the years, also recognised that if a breach of planning control has persisted for a certain number of years without enforcement action being taken by the local planning authority, the breach will become immune from enforcement and the land is then said to enjoy existing use rights. If such rights exist, an appeal to the Secretary of State may be brought on such a basis within the time specified against an enforcement notice subsequently served in respect of the development covered by those rights. Since the Town and Country Planning Act 1968, the existence of such use rights as at a particular date may achieve a form of official recognition by way of a certificate, now known as a Certificate of Lawful Use or Development. This is now provided for by section 191 of the 1990 Act.
This civil appeal raises as a principal issue the question whether and (if so) to what extent in subsequent proceedings based on an enforcement notice which has come into effect a court may go back to look at existing use rights as they existed before the issue of the enforcement notice. Does it make any difference that those earlier use rights were recognised in a Certificate of Lawful Use (“CLU”) granted before the enforcement notice?
I shall turn to the facts in more detail in the next section of this judgment, but in the present case both civil and criminal proceedings were brought by the relevant local planning authority as a result of a non-compliance with an enforcement notice. The authority, Staffordshire County Council (“the County Council”), brought two sets of civil proceedings which were eventually consolidated—one for an injunction to prevent the breach of planning control and then subsequently, after the County Council had taken direct action itself under section 178 of the 1990 Act to remedy the breach, another set of proceedings to recover from the owners of the land the expenses which they had incurred. These proceedings came before Her Honour Judge Kirkham, sitting as a High Court judge: she, by a judgment dated 23 February 2007, found against the County Council, which now appeals. Judge Kirkham's decision was largely founded upon the existence of an earlier CLU.
At the same time a criminal appeal has been heard by this same constitution sitting as the Court of Appeal Criminal Division. This results from the prosecution on indictment of Basil John Challinor, the first defendant in the civil proceedings, on two counts of failing to comply with the enforcement notice contrary to section 179(5) of the 1990 Act. Mr Challinor eventually pleaded guilty to both counts but only after a ruling by Mr Recorder Evans, QC, that it was no defence that the use covered by the enforcement notice had been previously declared lawful by the CLU dated 15 June 1994. The judge relied in particular on the restriction contained in section 285(1) of the 1990 Act. Mr Challinor has appealed against his conviction and we deal with that appeal in a separate but brief judgment.
I would only add that it seems to me to have been eminently sensible for these two appeals, civil and criminal, to have been listed and heard together in this way. It is a procedure which has saved time and also avoided the (no doubt remote) possibility of conflicting decisions emerging from the two divisions of the Court of Appeal. I hope that a similar approach will be adopted whenever such a situation arises in future.
The Facts
The enforcement notice in question, dated 16 June 1997, concerns an area of land about 2 hectares (5 acres) in extent located in a rural area at Hopton in Staffordshire. The land is known as Woodside. Within it is a smaller area, perhaps about a half-hectare in extent, the subject-matter of the CLU of 15 June 1994. I shall call this “the smaller area”. The whole site was owned for many years by Mr Challinor's father, but he died in August 1997 and Mr Challinor and his sister, Mrs Robinson (the second defendant in the civil proceedings), are the executors of the estate. They are sued as such, insofar as the County Council seeks to recover the costs of its direct action to remedy the breach of planning control. No grant of probate has yet been made.
At one stage it seems that the land known as Woodside was all in agricultural use and its regrading to certain specified levels using appropriate fill materials was regarded in 1985 as permitted development because it was requisite for the use of the land for agriculture. However, in 1988 the County Council served an enforcement notice, alleging a breach of planning control because of operations consisting of the excavation of land and the deposit of material on land exceeding in area, volume and steepness of final profile the scheme sanctioned in 1985. Amongst the steps required to be taken by that notice was to
“cease importation of waste material to the site.”
This notice applied to most of the Woodside site, including most of the smaller area. No appeal to the Secretary of State was lodged against this 1988 enforcement notice.
According to the evidence of the first defendant put before Judge Kirkham, he had been using some of the land for business purposes for some time and on 13 May 1993 he applied to the Staffordshire Borough Council for a CLU under section 191 of the 1990 Act. On the 15 June 1994 that authority issued a CLU. By it the Borough Council certified
“that on 13 th May 1993 the uses described in the First Schedule hereto in respect of [the smaller area] were lawful within the meaning of section 191 of the Town and Country Planning Act 1990 (as amended) …”
The reason given for so certifying was that the uses in question had begun more than 10 years before the date of the application for a certificate and so the time for taking enforcement action in respect of those uses had expired. The uses as described in the First Schedule were as follows:
“1. The use of the land as a plant hire contractor's yard including the repair, maintenance, storage and distribution of associated equipment and vehicles, such vehicles not exceeding ten in number.
2. The use of the land for the storage, distribution and general trading of materials recovered for demolition and construction sites for recycling, such storage of materials not exceeding 4 metres in height.”
It is agreed on all sides that the second line of paragraph 2 there should read “materials recovered from demolition and construction sites.”
It will be observed that this CLU was granted by the Stafford Borough Council, not the County Council who had issued the 1988 enforcement notice and who were to issue the 1997 enforcement notice which is at the heart of this case. There is a reason for this. Normally matters of planning control, whether concerned with the grant of planning permission or with the issuing of enforcement notices, were in non-metropolitan counties like this dealt with by the district council for the area, which would include a borough council. But certain matters were designated as “county matters”, for which the relevant county council would be the appropriate local planning authority. Amongst such “county matters” was the “use of land or the carrying out of operations in or on land for the deposit of refuse or waste materials”: see the Town and Country Planning (Prescription of County Matters) Regulations 1980, regulation 2(a). The 1988 enforcement notice, as its requirements indicated, was concerned with the deposit of waste and, as we shall see, so was the 1997 enforcement notice. Consequently the...
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