Thrasyvoulou v Secretary of State for the Environment;; Oliver and Others v Secretary of State for the Environment and another

JurisdictionUK Non-devolved
JudgeLord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Griffiths,Lord Jauncey of Tullichettle,Lord Lowry
Judgment Date14 December 1989
Judgment citation (vLex)[1989] UKHL J1214-3
Date14 December 1989
CourtHouse of Lords
Thrasyvoulou
(Respondent)
and
Secretary of State for the Environment and Others
(Appellant)
(Respondents)
Oliver and Others
(Respondents)
and
Secretary of State for the Environment
(Respondent)
and The London Borough of Havering
(Appellants)
(on Appeal from the Queen's Bench Division of the High Court of Justice)

[1989] UKHL J1214-1

Lord Bridge of Harwich

Lord Brandon of Oakbrook

Lord Griffiths

Lord Jauncey of Tullichettle

Lord Lowry

House of Lords

Lord Bridge of Harwich

My Lords,

1

These two appeals raise the question whether a decision of the Secretary of State allowing an appeal against an enforcement notice on one of the grounds in paragraphs b) to e) of section 88(2) of the Town and Country Planning Act 1971, as amended by the Local Government and Planning (Amendment) Act 1981, is capable of giving rise to an estoppel per rem judicatam or to an issue estoppel.

2

The first appeal arises from the service by the Hackney London Borough Council as local planning authority on the respondent, Aristophanes Thrasyvoulou, in February 1985 of enforcement notices alleging in respect of each of four properties, nos. 11, 13, 15 and 25 Wilberforce Road, London N.4, a breach of planning control by making a material change of use to use as a hostel for homeless families without the grant of planning permission required in that behalf. Mr. Thrasyvoulou appealed to the Secretary of State in each case on the ground, inter alia, that the breach of planning control alleged in the notice had not taken place. The appeals were dismissed by the inspector appointed by the Secretary of State to determine them. An appeal against his decision to the High Court under section 246 of the Act of 1971 was dismissed by McCowan J. The Court of Appeal (Parker and Ralph Gibson L.JJ. and Caulfield J.) allowed Mr. Thrasyvoulou's appeal and remitted the cases of the four enforcement notices for renearing and determination in the light of the opinion of the court that the inspector was in the circumstances obliged to allow the appeals to the Secretary of State and quash the enforcement notices. The Secretary of State now appeals to your Lordships' House by leave of the Court of Appeal.

3

The facts in this case relating to nos. 13 and 15 Wilberforce Road are straightforward. The local planning authority had previously served two enforcement notices in respect of each of these properties in October 1981 which alleged alternatively a breach of planning control by making a material change of use to use as a hotel or to use as a hostel. On appeal to the Secretary of State the inspector appointed to determine the appeal found that the use was correctly characterised as hotel use, not as hostel use, and that the hotel use had been carried on since 1960. He therefore quashed the hostel notices on the ground that the breach of planning control alleged in the notice had not taken place and the hotel notices on the ground that the breach of planning control alleged in the hotel notices had occurred before 1964. At the hearing of the appeals against the 1985 notices it was common ground that there had been no change in the use of the properties since service of the 1981 notices. The Court of Appeal held that in these circumstances an issue estoppel arose which prevented the council on the appeals against the 1985 notices from contending that the use of either property was as a hostel (which was assumed to be materially different from use as a hotel) and that the inspector had erred in failing to give effect to this estoppel and in making a finding on the evidence and argument before him that the use was as a hostel which contradicted the finding made by the inspector who determined the appeals against the 1981 notices that the use was as a hotel. The facts relating to nos. 11 and 25 Wilberforce Road are more complex, but since it is common ground that if the doctrine of res judicata and issue estoppel applies to determinations by the Secretary of State of appeals under section 88 the Court of Appeal were correct in holding that an issue estoppel arose sufficient to defeat the 1985 enforcement notices in relation to these properties also, it is unnecessary for me to go into them.

4

The second appeal arises from the service by the London Borough of Havering as local planning authority on the respondents, Mr. and Mrs. Oliver and Olivers of Hornchurch Ltd. ("the Olivers") of an enforcement notice in January 1986 alleging a breach of planning control by making a material change of use of land at the rear of nos. 13 to 19 The Avenue, Hornchurch, to the use described in the notice without the grant of planning permission required in that behalf. The Olivers appealed against the notice to the Secretary of State on the ground, inter alia, that the breach of planning control occurred before 1964. The inspector appointed to determine the appeal dismissed it. The Olivers appealed to the High Court under section 246. The appeal was heard by Mr. Malcolm Spence Q.C., sitting as a deputy High Court judge, who rightly held that he was bound to follow the decision of the Court of Appeal in the case of Thrasyvoulou as to the application of the doctrine of issue estoppel and concluded in the light of the planning history that an estoppel arose which was fatal to the 1986 enforcement notice. He ordered that the matter be remitted to the Secretary of State with the opinion of the court for rehearing and determination, but he granted the necessary certificate under section 12(1) of the Administration of Justice Act 1969 to enable an appeal against his decision to be brought direct to your Lordships' House and leave to appeal was granted by the House.

5

In this case it is the local planning authority who appeal. They join with the Secretary of State in contending that the doctrine of res judicata and issue estoppel has no application in law to the determination by the Secretary of State of an appeal against an enforcement notice under section 88, but they contend in the alternative that if the doctrine applies, no case giving rise to a relevant issue estoppel arises on the facts. This subsidiary issue depends on the details of the relevant planning history which it will be convenient to examine after considering the issue of principle which is common to both appeals.

6

Before turning to the arguments on the issue of principle it is appropriate to refer briefly to the salient features embodied in the statutory code for the enforcement of planning control in the Act of 1971, as amended by the Act of 1981. Under Part III of the Act planning permission is required for development which consists in the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land. If development is carried out without the requisite planning permission or if any conditions or limitations subject to which planning permission was granted have not been complied with there is a breach of planning control: section 87(2). Under section 87(1) the local planning authority may, where it appears to them that there has been a breach of planning control, serve an enforcement notice requiring the breach to be remedied. The notice is required to specify the matters alleged to constitute a breach of planning control. Appeal lies against an enforcement notice to the Secretary of State under section 88 on any of the grounds specified in section 88(2). For brevity I omit consideration of breaches consisting of failure to comply with conditions or limitations and consider only the grounds appropriate where the enforcement notice alleges development without the requisite planning permission. Ground ( a) is that planning permission ought to be granted for the development to which the notice relates. Ground ( b) is that the matters alleged in the notice do not constitute a breach of planning control. Ground ( c) is that the breach of planning control alleged in the notice has not taken place. Ground ( d) applies to notices alleging development by carrying out building etc. operations which can only be enforced against within four years of the development taking place. Ground ( d) is therefore established if the breach of planning control occurred more than four years before the issue of the enforcement notice. Ground ( e) applies to development consisting of making a material change of use of land which can only be enforced against if the change of use was made since 1963. Ground ( e) is therefore established if the change of use occurred before the beginning of 1964. The remaining grounds ( f) to ( h) relate to subsidiary issues which may arise as to the service of the enforcement notice, the steps required to be taken to remedy the breach of planning control alleged and the time for taking those steps and these grounds have no relevance for present purposes.

7

An issue on ground ( a) arises in every appeal against an enforcement notice since by Section 88B(3) there is deemed to be an application for planning permission for the development to which the notice relates. In determining whether to allow an appeal on that ground the Secretary of State will decide as a matter of policy and in the exercise of discretion whether planning permission should be granted and in relation to ground ( a) no question of legal right arises. By contrast the question whether any of the grounds ( b) to ( e) on which the appellant relies have been established will be answered by applying the relevant rules of planning law to the facts found and the answer will determine in each case an important matter of legal right. This may be simply illustrated by examples. Thus, if an issue is raised on appeal against a notice on ground ( b) as to whether or not a building operation to which the notice relates was within the terms of planning permission...

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