Young v Secretary of State for the Environment
| Jurisdiction | England & Wales |
| Judge | Lord Fraser of Tullybelton,Lord Elwyn-Jones,Lord Lowry,Lord Roskill,Lord Brightman |
| Judgment Date | 27 July 1983 |
| Judgment citation (vLex) | [1983] UKHL J0727-2 |
| Date | 27 July 1983 |
| Court | House of Lords |
[1983] UKHL J0727-2
House of Lords
Lord Fraser of Tullybelton
Lord Elwyn-Jones
Lord Lowry
Lord Roskill
Lord Brightman
My Lords,
This appeal raises a question of construction of section 23(9) of the Town and Country Planning Act 1971. That subsection provides:
"(9) Where an enforcement notice has been served in respect of any development of land, planning permission is not required for the use of the land for the purpose for which (in accordance with the provisions of this Part of this Act) it could lawfully have been used if that development had not been carried out."
The issue raised in the appeal is whether section 23(9) enables a person, upon whom an enforcement notice has been served alleging a breach of planning control by making a material change in the use of land, to revert to the use to which the land was last lawfully put, or only to revert to the use immediately preceding that enforced against, provided that such use was itself lawful. The appellant contends for the former alternative, the first respondent for the latter. The first respondent was the only respondent who was represented before this House, and I shall refer to him hereafter as "the respondent".
Part III of the 1971 Act, which includes section 23, deals with general planning control. It provides by section 22(1) that "development" of land means the making of any material change in the use of any buildings or other land. That general rule is qualified by subsection (2) of section 22 which provides that a change from one use to another use in the same class, as defined in an Order by the Secretary of State, shall not be taken for the purposes of the Act to involve development. Section 23 provides that any development of land, with certain specified exceptions, requires planning permission. Section 23 so far as relevant to this appeal provides as follows:
"23(1) Subject to the provisions of this section, planning permission is required for the carrying out of any development of land.
(2) Where on 1st July 1948 (in this Act referred to as 'the appointed day') land was being temporarily used for a purpose other than the purpose lor which it was normally used, planning permission is not required for the resumption of the use of the land for the last-mentioned purpose before 6th December 1968.
……
(5) Where planning permission to develop land has been granted for a limited period, planning permission is not required for the resumption, at the end of that period, of the use of the land for the purpose for which it was normally used before the permission was granted.
(6) In determining, for the purposes of subsection (5) of this section, what were the purposes for which land was normally used before the grant of planning permission, no account shall be taken of any use of the land begun in contravention of the provisions of this Part of this Act or in contravention of previous planning control."
"(9)" (Already quoted above).
On 11th February 1980 an enforcement notice was issued by the second respondents to the appellant in respect of development of land at Woodside Crescent, Sidcup, Kent. The land in question consists of a large building, which is used by the appellant to process, store and distribute insulating materials. It is surrounded by a residential area. The enforcement notice was issued by the respondents in pursuance of their powers under section 87(1) of the 1971 Act. It alleged that there had been a breach of planning control in that the land has been developed by the making of a material change of use without the grant of planning permission which was required. The appellant appealed to the Secretary of State, under section 88(1) of the Act, denying that there had been any breach of planning control. A public inquiry was held and on 21st November 1980 the appellant's appeal to the Secretary of State was dismissed (subject to a slight extension of the time allowed by the enforcement notice for ceasing to use the land and removing his materials from it). Section 88(7) provides that when such an appeal is brought the appellant is deemed to have applied for planning permission for the development to which the notice relates. This deemed application was refused.
The appellant appealed to the High Court under section 246(1) of the Act, and on 7th April 1982 his appeal was dismissed by Forbes 3. On 2nd February 1983 the Court of Appeal (Lord Lane C.J., Watkins L.J. and Sir Roger Ormrod) dismissed the appellant's appeal and affirmed the judgment of Forbes J.
Before your Lordships' House, counsel for the appellant accepted that the enforcement notice was valid and well founded in fact. His argument was confined to the question of its effect, under section 23(9), on the footing that it was valid. In order to appreciate the contentions of the parties it is necessary to refer to the planning history of the land. It was as follows.
(a) From 1912 until 1969 the building was used as a laundry. This was use as a general industrial building within class IV of the schedule to the Town and Country Planning (Use Classes) Order 1972 ("the Use Classes Order 1972").
(b) In 1969 there was a change of use to use for food processing. This was use as a light industrial building within class III of the schedule to the Use Classes Order 1972. The change from use as a general to use as a light industrial building was a material change of use, but it was a change which was permitted without the need for specific permission from the Local Planning Authority or the Secretary of State - see Article 3(1) of the Town and Country Planning General Development Order 1977, and Schedule 1, Class III. Planning permission for such a change is given by the Order. Accordingly the change of use in 1969 was permitted development and the use for food processing was a lawful use.
(c) In 1970 there was a change of use back to use as a laundry. This change from food processing (light industrial) to laundry (general industrial) was not lawful because planning permission ought to have been obtained for it but was not. Accordingly the use as a laundry from 1970 onwards was not a lawful use of the building.
(d) Since 1977 the building has been used by the appellant for his business as an insulating contractor, mainly for storing and processing materials. This is use as a light industrial building but it is not a lawful use because the immediately preceding use as a laundry having been unlawful, any...
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