Thrasyvoulou v Secretary of State for the Environment
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RALPH GIBSON,LORD JUSTICE PARKER,MR JUSTICE CAULFIELD |
| Judgment Date | 28 January 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0128-3 |
| Date | 28 January 1988 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 88/0068 co 776/86 co 777/86 co 778/86 co 779/86 |
[1988] EWCA Civ J0128-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF
JUSTICE, QUEEN'S BENCH DIVISION
(MR JUSTICE McCOWAN)
Royal Courts of Justice,
Lord Justice Parker
Lord Justice Ralph Gibson
Mr Justice Caulfield
88/0068
co 775/86
co 776/86
co 777/86
co 778/86
co 779/86
MR ROBERT CARNWATH, Q.C. and MR J.C. HARPER (instructed by Messrs. Frank E.C. Forney & Partners, London, N.22.) appeared on behalf of the Appellant.
MR D. OUSELEY (instructed by the Treasury Solicitor) appeared on behalf of the 1st Respondent.
MISS A. WILLIAMS (instructed by the Borough Solicitor) appeared on behalf of the 2nd Respondent.
This appeal is brought by Aristophanes Thrasyvoulou, the appellant, from the decision of McCowan J. given on 25th November 1986. Leave to appeal was granted by this Court at the outset of the hearing. The respondents are the Secretary of State and the London Borough of Hackney, the local planning authority ("the Council"). The appeal raises the important question whether the principle of issue estoppel has any place in the law regulating planning appeals.
The appeal concerns the rights of the appellant under planning law to use as accommodation for homeless families a number of properties which he owns in Wilberforce Road, London, N.4. By the decisions of the Inspector, which were upheld by McCowan J., it was held that such use amounted to use of the properties as hostels for homeless families, that the appellant has no rights to use any of the properties for such purpose, and that planning permission to continue such use should not be granted.
Enforcement notices dated 2nd February 1985 were served by the Council in respect of five separate properties and groups of properties. The effective notices and the properties to which they related were as follows: Notice B: Nos. 3, 5 and 7 Wilberforce Road; Notice C: Nos. 11, 13 and 15; Notice D: No. 18; Notice E: No. 20; Notice F: No. 25.
The notices were in the same terms. In each case the breach of planning control was alleged to be "…. the making of a material change in the use (of the property) to use as a hostel for homeless families". The steps required by the notices to be taken were stated to be: "To terminate the use of the said land as a hostel for homeless families". In the annex to each notice the Council explained briefly why, pursuant to Section 87 of the Town & Country Planning Act, 1971, they considered both that there had been with reference to each property a breach of planning control after the end of 1963, and that it was expedient to take enforcement action. They said: "The Council considers that the use of these premises for the almost exclusive accommodation of homeless families is materially different from their former use; and is a use which it is inappropriate to allow to continue in an area which is primiarly residential, but where there are already a large number of hotel, guesthouse, boarding house, hostel, lodging and similar establishments and where a concentration or proliferation of hostels for homeless families produces disproportionate strain on local educational, social and medical services".
It is to be noted that nothing was said as to what the "former use" was, or as to when the change was alleged to have been made. It is not suggested that the notices were thereby defective.
The case made for the Council on the merits with reference to the planning issues was eventually successful. After an Inquiry extending over five days in January and March 1986, and a detailed inspection of the properties carried out on 3rd February 1986, Mr C.H. Johnson, the Inspector appointed by the Secretary of State to determine the appeals, held that all the properties were being used as hostels for homeless families; that the lawful or established uses of the various properties were either as hotels or as houses in multiple occupation; and that there had been in each case a material change of use. In addition he held that planning permission should not be granted for the continuance in any of the properties of the use as hostels for homeless families. It is right to emphasise, as was clear from the statement made in the annex to each notice and from their case at the Inquiry, that the Council was fully aware of the need for proper accommodation for homeless families and that accommodation for those families should be provided in part and for short periods in hostels, but the Council was objecting on planning grounds to the excessive concentration of properties used for hostels in this area. It is common ground in this Court that the Inspector, so far as concerned the planning issues, had directed himself correctly in law and had ample evidence on which to find as he did.
The attack on the Inspector's decision in this Court is founded upon a novel ground. It is said for the appellant that, irrespective of the merits of his case on the planning issues, the Council was estopped by issue estoppel from contending before the Inspector that the use made by the appellant of his properties was as hostels for homeless families, or that the use actually being made constituted a material change of use, or that it was other than a lawful use. The issue estoppel is claimed to have arisen as a result of earlier enforcement proceedings taken by the Council against this appellant in 1982 with reference to some but not all of the properties covered by the present five enforcement notices.
The Earlier Proceedings
The proceedings in 1982 were concerned with Nos. 11, 13, 15, 18, 20 and 25 Wilberforce Road, but the issue estoppel is said to result only from the contest and decisions with reference to Nos. 11, 13, 15 and 25. In 1982 the distinction between use of land as a hotel from use as a hostel, and the possible materiality in planning terms of a change from one to the other, were less clear than later they became.
Before dealing with the issues in the earlier proceedings it is necessary to state some facts which were not in dispute. All these properties had, since 1978, been used predominantly for providing temporary accommodation for homeless families referred by local authorities under their statutory duties. Prior to 1981 there had been grants of planning permission for the use of Nos. 3, 5, 7 and 20 for hotel use. In respect of No. 11 there was an established use certificate for hotel use.
The issues in 1982 with reference to the relevant properties were as follows:
(i) by an enforcement notice dated 12th October 1981 the Council alleged that there had been development of No. 13 without permission by the making of a material change of use to use as a hotel, and required that use to be terminated. As an alternative, a second enforcement notice made the same allegations and requirement on the basis that the use of No. 13 had been changed to that of hostel.
(ii) four separate enforcement notices of 12th October 1981 made identical alternative allegations and requirements with reference to Nos. 15 and 25.
(iii) with reference to all those enforcement notices the appellant appealed under Section 88 of the 1971 Act, as amended, on various grounds which (so far as now relevant) can be summarised briefly. His main contention was that he was using the properties as budget hotels on the basis that almost all his customers were homeless people for whom bookings were made by local authorities. Any breach of planning control by change of use to use as a hotel had occurred before the beginning of 1964: Section 88 (l) (e). So far as concerned the allegation that there had been a change to use as hostels, the appellant contended that such a change did not constitute a breach of planning control (Section 88 (1) (b)) and/or that the alleged breach of planning control had not taken place (Section 88 (l) (c)) because that use was covered by the allegedly lawful use as hotels. Finally in each case he claimed that planning permission ought to be granted so as to make lawful the use which he was making of the properties.
(iv) as to No. 11, in respect of which there was an established use certificate for hotel use, an application for planning permission had been made in May 1979 by the appellant for the retention of a single storey side extension and for its use as a reception area for that property as a bed-and-breakfast hotel. The permission granted on 26th March 1981 had been for "retention of the extension and its use as a reception area in connection with the use of the premises as a hostel for homeless families". There was also a condition for removal of the extension by February 1986. The appellant appealed under Section 36 of the 1971 Act against the wording of the planning permission and the condition. Again his main contention was that his use of the property was as an hotel.
It is important to note that there was no enforcement notice in respect of No. 11. The attitude of the Council apparently was that it was not seeking to stop the use of No. 11 for use as a hostel for homeless families: indeed, the Council has granted planning permission for the retention of the side extension in connection with that use. The alleged distinction between hostel use and hotel use was seen as important by both the Council and the appellant. If the permission remained in the terms in which it had been granted, the appellant, while he could go on using that property as he then was using it, presumably feared that he might have difficulty in reverting...
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