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Case No: QBCOF 1999/1243/C
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 28th July 2000
B e f o r e :
LORD JUSTICE WARD
LORD JUSTICE JUDGE
and
MR JUSTICE BELL
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|
RONALD
M. DUGUID
|
Appellant
|
|
-
and -
|
|
|
SECRETARY
OF STATE FOR THE ENVIRONMENT, TRANSPORT AND THE REGIONS
WEST LINDSEY DISTRICT COUNCIL
|
Respondent
|
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Timothy Comyn (instructed by Chattertons for the Appellant)
Alice Robinson (instructed by the Treasury Solicitor for the
Respondent)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE WARD:
The Problem.
When he allowed the appellant leave to appeal, His Hon. Judge Rich Q.C.
(sitting as a Deputy High Court Judge of the Queen's Bench Division) stated as
his reasons for that decision that there was an "arguable point on new
provisions of (the Town and Country Planning Act 1990) of some general
importance" to a recurrent problem of how to safeguard an established or
permitted use of land to which a landowner could revert after an enforcement
notice had required him to discontinue other uses of the land in breach of
planning control.
The Lie of the Land.
We are concerned with part of the old R.A.F. airfield at Hemswell in
Lincolnshire. The R.A.F. still occupy part of the property but much of it has
passed into private ownership. The appellant, Mr Ronald Duguid, acquired some
18 hectares of the disused airfield in 1983. It was put to agricultural use,
which is the permitted use for the land. In about November 1989 part of the
land was first used for the purpose of car parking to serve the former
technical site on the airfield. An application for planning permission for the
construction of a car park was, however, refused. Nevertheless the car parking
continued and in 1992 hardstanding roadways were constructed to facilitate that
use. Part of the site also became used by a tenant for Sunday markets and when
the tenancy ended towards the end of 1993, the appellant later re-opened the
operation himself and continued to use the site for Sunday markets and the
parking of motor vehicles. An application for permission to continue use of
the land for car parking was refused in November 1995. On 12th February 1996
the local council, being the West Lindsey District Council, issued an
enforcement notice to stop the use of the land for the holding of the markets
and car boot sales. The appellant appealed against that enforcement notice, a
public inquiry was held but on 12th March 1997 the inspector dismissed that
appeal.
It would appear that the appellant continued to use the enforcement site for
the parking of motor vehicles after the time for compliance had passed but at
least he relocated the market and car boot sale enterprise to another area of
his land to the west of the site which had been identified in that enforcement
notice. He installed portable toilets and connected septic tanks. On other
parts of his property he continued the agricultural use growing cereals and
other arable crops.
As the Director of Development Services reported to the Planning Committee on
6th August 1997:-
"22. From investigations carried out by the enforcement officer, immediately
before and after the compliance date within the previous enforcement notice, it
appears that, by fact and degree the current use of the site is a material
change of use and the whole planning unit has a mixed agricultural cereal
growing use and use for car parking and Sunday markets ...
23. Whilst the site owner has relocated the market to land outside the area
covered by the previous enforcement notice, I am of the opinion that a breach
of planning control continues to take place. To prevent the market and parking
being shifted to different areas within the site it is recommended that the
whole planning unit be enforced against, as indicated on the plan accompanying
this report."
His recommendation was accepted and the council considered it expedient to
issue an enforcement notice on 23rd December 1997 relating to the appellant's
land at Gainsborough Road, Hemswell Cliff, Lincolnshire.
The relevant terms of that notice were as follows:-
"3. THE MATTERS WHICH APPEAR TO CONSTITUTE THE BREACH OF PLANNING CONTROL.
Without planning permission, change of use of the land from use for agriculture
to mixed uses of:- (i) agriculture (ii) parking of motor vehicles and (iii)
holding markets and/or car boot sales.
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 site is located within an area of open countryside wherein it is the policy
of the District Planning Authority that development will be strictly controlled
... and will only be permitted where essential to the needs of agriculture ...
or which otherwise is in accordance with specific adopted policies. The use of
the site for holding Sunday markets, car boot sales and car parking is in
conflict with Structure Plan policy 97 and West Lindsey Local Plan Deposit
Draft Policy C1, and is alien and highly intrusive, completely destroying the
open character of the site itself, and seriously detracting from the appearance
of the wider rural area.
The Council do not consider that planning permission should be given, because
planning conditions could not overcome these objections.
5. WHAT YOU ARE REQUIRED TO DO.
(i) stop using any part of the land for the purpose of parking motor
vehicles
(ii) using any part of the land for the purposes of holding markets and/or car
boot sales
(iii) remove from the land the portable toilet ... and the connected septic
tank
(iv) remove from the land the four hardstanding roadways and linking roads
constructed in connection with motor vehicle parking ...
(v) following the removal of the hardstanding roadways and septic tank ... seed
the said parts of the land with grass.
6. TIME FOR COMPLIANCE
(i) and (ii) 1 month after this notice takes effect.
(iii) 6 weeks after this notice takes effect.
(iv) 3 months after this notice takes effect.
(v) 9 months after this notice takes effect.
7. WHEN THIS NOTICE TAKES EFFECT.
This notice takes effect on 16th February 1998, unless an appeal is made
against it beforehand."
Mr Duguid exercised that right of appeal on the grounds provided by section
174(2)(a), (b), (c), (d), (f) and (g) of the 1990 Act. Mr W.J. Weeks
F.R.I.C.S. was appointed by the Secretary of State for the Environment to
determine the appeal. He held an enquiry into the appeal on 11th August and
2nd September 1998. He made two inspections and he dismissed the appeal,
upheld the notice varied only by extending the periods for compliance and he
refused to grant planning permission on the application deemed to have been
made under Section 177(5) of the Town and Country Planning Act 1990 as
amended.
For present purposes it is material to record how the Planning Enforcement
Officer dealt with a ground of the appeal that there was no breach of planning
control. In his written evidence to the inspector he said:-
"5.1 By fact and degree the activities taking place on the land within the
enforcement site on Sundays, the use of the land on other days and the
permanent appearance of the land used for the market and parking, i.e. planting
of hardwearing turf, white painted lines, advertisements displayed, located
toilet connected to a septic tank, the white metal post, the hardcore and
compounded earth roadways have the appearance of a permanent market site.
5.2 The use is not seen as a temporary use granted planning permission by
Article 3 and Class B of Part 4 of Schedule 2 of the Town and Country Planning
(General Permitted Development) Order 1995, but a material change of use."
Under that order ("the GPDO") a temporary change of use is authorised for any
purpose for not more than 28 days in total in any calendar year of which not
more than 14 days in total may be for the purposes of the holding of a market
or car boot sale. As I understand it, no application was made to the Inspector
to amend the enforcement notice in order specifically to deal with any use of
the land pursuant to the GPDO.
With the leave of Mr Malcolm Spence Q.C. (sitting as a deputy High Court Judge
of the Queen's Bench Division) Mr Duguid nonetheless appealed contending in his
notice of application that:-
"3. The evidence led by the West Lindsey District Council ... was to the effect
and purpose that the market enforced against was a permanent market held on the
land on Sundays and other days. That is, a use not seen as a temporary use
granted planning permission by (the GPDO) but a material change of use without
the benefit of planning permission to a permanent use for markets.
4. In the circumstances of the case and by reason of the rule in Mansi v
Elstree R.D.C. [1964] as applied or extended in Monomart (Warehouses)
Ltd. v S.S. (1977) 34 P. & C.R.P. 305; Day & Others v S.S.
(1980) 78 L.G.R.P. 27; Newport v S.S. (1980) 40 P. & C.R. p. 261;
Cord v S.S. & Torbay B.C. (1981) J.P.L. p. 40; this was a case
where the inspector was required in law to see to it that the requirements of
the enforcement notice did not prohibit any use or activity which Mr Duguid
was or is entitled to carry on the land by virtue of any provision of the
relevant legislation namely, the Town and Country Planning Act 1990; including
the holding of 14 one day markets on the land by virtue of planning permission
granted under Section 58(1)(a) and ... (the GPDO).
5. Accordingly the decision of the Secretary of State by his inspector should
be remitted by the court to the Secretary of State ... for rehearing and
determination by him with the court's opinion that the requirements of the
enforcement notice to stop using any part of the land for the purpose of
holding markets and/or car boot sales be amended in such a manner as to
safeguard from that prohibition the permitted development rights granted under
(the GPDO) to use the land for the holding of markets on not more than 14 days
in any calendar year."
On 12th November 1999 His Hon. Judge Rich Q.C. dismissed that appeal but gave
leave to appeal to us as I have already set out.
The Judgment of His Hon. Judge Rich Q.C.
The learned judge considered the cases referred to and also R v
Harfield [1993] 2 PLR 23 where the Court of Appeal (Criminal Division)
concluded that the enforcement notice properly construed did not make the
permitted ancillary use a use in contravention of the notice. He said:-
"This refusal, I think, leaves Mansi as good law ...
The Court did not refer to s. 93 which seems to me clearly to justify the
distinction, which it in fact made. But for that section, discontinuance of
the use would satisfy the requirements of the enforcement notice and resumption
would not constitute a contravention of the notice. Section 93(1) however
provides that the discontinuance of the use "shall not discharge the
enforcement notice" and by sub-section (2) it is provided that "... any
provision of an enforcement notice requiring a use of land to be discontinued
shall operate as a requirement that it shall be discontinued permanently to
the extent that it is in contravention of Part III of this Act; and
accordingly the resumption of that use ... after it has been discontinued in
compliance with the enforcement notice shall to that extent be in contravention
of the enforcement notice" (again my (Judge Rich's) italics). The enforcement
notice prohibited the resumption of the use only to the extent that it is in
contravention of Part III, which because of the permission for the petrol
station use, parking ancillary to the use of the land as a petrol station was
not.
There is no contravention of Part III, if planning permission has been granted
whether on application or by the GPDO or for resumption after enforcement of
the last lawful use: see s. 57 of the Act.
So far as the use with which the Appellant in this case is concerned, a GPDO
permission for a temporary use can only begin in a calendar year when there
have not already been more than 14 days of market use. It follows that it
would be necessary to discontinue the more permanent market use against which
the enforcement notice was directed before the permitted temporary use could be
begun. Thus on the basis of the decision of the Court of Appeal in
Harfield, no risk of prosecution would arise if such temporary, 14-day
use was begun, after discontinuance of the more permanent use, and there would
be no need to amend the enforcement notice in order to safeguard the
possibility of such use ...
That conclusion is independent of any identification of a material difference
between the market use enforced against, which the Inspector accepted had
indicia of permanence some of which the enforcement notice also required to be
removed, and the permitted 14-day use. Such distinction may well, on the facts
of this case, have justified the failure to incorporate into the enforcement
notice words safeguarding the materially different 14-day use, irrespective of
the effect of s. 181(2) of the Act of 1990 as s. 93(2) of the Act of 1971 has
now become.
...
... Sub-section (6) of s. 179 had, as originally enacted, so far as material
reproduced s. 89(5) of the 1971 Act. It thus had imported, for the purpose of
identifying a contravention of the notice, s. 181, which reproduces s. 93 of
the 1971 Act, which remains unamended. Section 179 as now substituted by the
1991 Act is in completely different terms. It defines breach of an enforcement
notice in Sub-section 1 as follows:-
"Where at any time after the end of the period for compliance with an
enforcement notice ... any activity required by the notice to cease is being
carried on, the person who is then the owner of the land is in breach of the
notice."
By sub-section (2) it is provided that "where the owner of land is in breach of
an enforcement notice he shall be guilty of an offence". The formulation of
the definition of breach by reference to the carrying on of the activity "at
any time", seems to render unnecessary the provision of s. 181 in continuing
the effect of the notice after initial compliance, so as to make resumption "to
the extent that it is in contravention of Part III" a contravention of the
enforcement notice.
If, however s. 179 as now substituted were construed as rendering s. 181(2)
otiose, it would be necessary, in order to safeguard even a GPDO use to exclude
such use from the "activity required by the notice to cease". I have searched
the Carnwath Report (Enforcement of Planning Control) H.M.S.O. February 1989 on
which the relevant parts of the 1991 Act were based, to identify some mischief
which might justify such construction. I do not think that the substitution of
the new s. 179 was intended to have such effect, and would not so construe it
unless there were no other proper construction. I think that the difficulty is
resolved if one asked what is meant by "is being carried on"? Section 181(2)
remains in force and must be given meaning and effect. It has no other
function than to define the uses which may not be resumed without involving a
contravention of the enforcement notice. It is only resumption "to that
extent" (that is "to the extent that it is in contravention of Part III)", that
constitutes a contravention of the enforcement notice. If the use is not in
such contravention then, in my judgment, when it is resumed, it is not, for the
purposes of s. 179(1), "the activity required by the notice to cease", and
therefore on resumption it is not the same activity which "is being carried
on".
For these reasons I conclude that it is not necessary to amend the enforcement
notice in order to safeguard the Appellant's right to carry on a 14-day market
as permitted by the GPDO and accordingly the appeal should be dismissed."
The Issues arising on the appeal.
I cannot dispel the nagging fear that there is an Alice in Wonderland quality
to this appeal, though I hasten to add that I do not intend to be critical of
counsel and their instructing solicitors in saying so. The formal issue has to
be whether the inspector erred in not somehow amending the enforcement notice
expressly to provide that the use of the land which it was required should stop
did not include use of the land in accordance with the GPDO. Since the appeal
to him on ground (f) of Section 174(2) did not advance any argument that the
notice should be amended, he can hardly be blamed for not doing so and, on one
view of the matter, that is the end of any appeal against his decision letter.
The real reason for this appeal is said to be to protect the appellant from a
risk of prosecution for use of the land within the GPDO, Mr Comyn submitting
that in the light of the learned judge's judgment, there are now doubts whether
Mansi and Harfield can stand authoritatively after the amendments
made to the 1990 Act. The air of unreality pervading the appeal arises because
counsel, if I have correctly understood them, seem virtually agreed that these
doubts are quite unfounded.
The Legislative Provisions.
The Town and Country Planning Act 1990 replaced the Town and Country Planning
Act 1971. For all practical purposes relating to this appeal the relevant
provisions are not materially different in substance and effect. The changes
which troubled the judge arise from the amendments to the 1990 Act made by the
Planning and Compensation Act 1991 which implemented certain recommendations
made by Robert Carnwath Q.C., as he then was, in his report entitled "Enforcing
Planning Control" (HMSO February 1989). I must pinpoint those changes. I
will, however, state the law as it is, that is to say the 1990 Act as amended.
The scheme of Part VII dealing with enforcement is as follows:-
Section 172
(1). The local planning authority may issue a notice (in this Act referred to
as an "enforcement notice") where it appears to them -
(a) that there has been a breach of planning control ...
Section 171A
(1) For the purposes of this Act -
(a) carrying out development without the required planning permission ...
constitutes a breach of planning control.
Section 173
(1) An enforcement notice shall state -
(a) the matters which appear to the local planning authority to constitute the
breach of planning control ...
(3) An enforcement notice shall specify the steps which the authority require
to be taken, or the activities which the authority require to cease, in order
to achieve, wholly or partly, any of the following purposes.
(4) Those purposes are -
(a) remedying the breach by ... discontinuing any use of the land or by
restoring the land to its condition before the breach took place ...
(5) An enforcement notice may, for example, require -
(a) the alteration or removal of any buildings or works; ...
(c) any activity on the land not to be carried on except to the extent
specified in the notice."
It will be seen that "the activities which the authority require to cease" must
be for the purpose of "discontinuing any use of land". The language of the
unamended 1990 Act is different. Section 173 before the amendment provided
that:-
"(2) An enforcement notice shall also specify -
(a) any steps the local planning authority require to be taken in order to
remedy the breach; ...
(3) In this section "steps to be taken in order to remedy the breach" means
steps ... including -
(ii) the discontinuance of any use of land."
The nomenclature has changed but there is no significant change of
substance.
Section 174 gives a right of appeal to the inspector and the relevant ground is
in Section 174(2)(f):-
"that the steps required by the notice to be taken, or the activities required
by the notice to cease, exceed what is necessary to remedy any breach of
planning control which may be constituted by those matters ..."
Section 179 creates the offence where the enforcement notice is not complied
with. It provides:-
(1) Where, at any time after the end of the period for compliance with an
enforcement notice, any step required by the notice to be taken has not been
taken or any activity required by the notice to cease is being carried on, the
person who is then the owner of the land is in breach of the notice.
(2) Where the owner of the land is in breach of an enforcement notice he shall
be guilty of an offence ...
(4) A person who has control of or an interest in the land to which an
enforcement notice relates (other than the owner) must not carry on any
activity which is required by the notice to cease or cause or permit such an
activity to be carried on.
(5) A person who, at any time after the end of the period for compliance with
the notice, contravenes subsection (4) shall be guilty of an offence."
Section 179 was originally couched in different language similar to Section 89
of the 1971 Act. The original provision was:-
"179(1) Where -
(a) a copy of the enforcement notice has been served ... and
(b) any steps required by the notice to be taken (other than the discontinuance
of a use of land) have not been taken within compliance period,
then ... that person shall be guilty of an offence ...
(6) Where, by virtue of an enforcement notice -
(a) a use of land is required to be discontinued ...
then, if any person uses the land ... in contravention of the notice, he shall
be guilty of an offence."
Once again I cannot see any material difference between the offence established
by carrying on an activity required by the notice to cease and making some use
of the land which was required to be discontinued. I will deal later with the
significance, if any, of the addition in the amended Section 179 of the words
"at any time".
Section 180 deals with the effect of planning permission, etc., on enforcement
or breach of the enforcement notice. It provides that where after service of
the notice planning permission is granted for any development carried out
before the grant of that permission, the notice shall cease to have effect so
far as inconsistent with that permission though the liability of any person for
an offence in respect of a previous failure to comply is unaffected. I must
look at Section 181 in more detail. It provides:-
(1) Compliance with an enforcement notice, whether in respect of -
(a) the completion, removal or alteration of any buildings or works;
(b) the discontinuance of any use of land; or
(c) any other requirements contained in the notice,
shall not discharge the notice.
(2) Without prejudice to subsection (1), any provision of an enforcement notice
requiring a use of land to be discontinued shall operate as a requirement that
it shall be discontinued permanently, to the extent that it is in contravention
of Part III; and accordingly the resumption of that use at any time after it
has been discontinued in compliance with the enforcement notice shall to that
extent be in contravention of the enforcement notice."
The 1991 Act made no amendment of any significance - it substituted "removal"
for "demolition" in Section 181(1)(a).
The Relevant Authorities.
I do not propose to examine the several cases referred to in the Notice of
Application for Leave to Appeal against the decision letter nor to comment on
Judge Rich's analysis of them. Counsel did not demand that of us. In my
judgment, it is sufficient to enquire first whether the so called "Mansi
doctrine" has survived the 1991 changes. Mansi v Elstree R.C.D. (1964)
16 P. & C.R. 153 concerned land on which primary use was made of a number
of glasshouses but where there was a long established subsidiary use of part of
the land, including one of the glasshouses, for retail sales of nursery produce
and other articles. The appellant then intensified the latter use until the
glasshouse became primarily a shop. The local planning authority served an
enforcement notice reciting that the appellant had changed the use of the
glasshouse from use for agricultural purposes to use for the sale of goods, and
requiring the appellant to discontinue the latter use. No reference was made
in the notice to the former subsidiary use, nor was there any provision for its
continuance. On appeal the appellant contended that the notice purported to
restrict the appellant's activities further than it legitimately might, by
forbidding even the use for retail sales as a subsidiary use. The judgment of
the Divisional Court was given by Widgery J. who, of course, brought a far
greater experience of this field to his judgments than I have been able to
command in mine. Of the issue identified above he said at p. 161:-
"Mr Shaw's other point, of course, is on very much stronger ground - indeed, it
seems to me quite unanswerable - when he alleges that the notice in the form in
which it was served went too far. On the Minister's own finding, there was a
very old established use affecting these premises for the sale of goods by
retail. True that use is a limited a restricted one, but nevertheless the
Planning Acts gave no power to the local authority to restrict or remove that
use, such as it was. It seems to me that when this matter was before the
Minister, the Minister should have recognised that a notice requiring
discontinuance of all sale of goods went too far and that he ought to have
amended the notice under the powers given to him so as to make it perfectly
clear that the notice did not prevent the appellant from using the premises for
the sale of goods by retail, provided that such sale was on the scale and in
the manner to which he was entitled in 1959, as the Minister himself had found.
True that use was a subsidiary one, but nevertheless it should be
protected and, in my judgment, this appeal should be allowed to the extent
that the decision in question should be sent back to the Minister with a
direction that he ought to amend the notice so as to safeguard the appellant's
established right as found by the Minister to carry on the retail trade in the
manner and to the extent to which the Minister has found it was carried on in
1959." (It is my emphasis added. )
For my part I entertain no doubt that the passages I have highlighted remain
perfectly good law, and they are crucial to this appeal.
The next authority of relevance is R v Harfield [1993] 2 P.L.R. 23, a
decision of the Court of Appeal (Criminal Division). There the appellant was
charged on indictment with using his land for the parking of commercial
vehicles in contravention of an enforcement notice, contrary to Section 89(5)
of the Town and Country Planning Act 1971 which became Section 179(5) of the
1990 Act before its amendment. The requirements of the notice were to
"discontinue the use of land for the parking of commercial vehicles" and to
remove from the land all commercial vehicles. An appeal against the notice was
withdrawn though the appellant reserved his right to contend that parking
commercial vehicles which was ancillary to use of the land as a petrol filling
station should be permitted. At his trial he was not allowed to lead evidence
that the parking alleged in the indictment was such an ancillary use. Latham
J. gave the judgment saying at p. 30:-
"In his ruling, the judge was also influenced, as it appears to us, by the fact
that the enforcement notice had on its face required the appellant to remove
from the land all commercial vehicles and quite clearly, and on his own
admission, he had not done so. The charge, however, was not brought under
Section 189(1) of the Act, that is a charge of failing to take any steps
required by the notice, but under Section 89(5) of the Act, namely that the
appellant was making a use of land which he had been required to discontinue.
It is accepted by counsel for the respondent that any use which is ancillary to
a permitted primary use is itself permitted without the need for any separate
planning permission: see Trio Thames Ltd. v Secretary of State for the
Environment [1984] J.P.L. 183. No enforcement can take away these
legally permitted rights: this has been referred to before us as the
Mansi doctrine. More important, the authorities clearly establish the
proposition that any enforcement notice will be construed so as to retain
any such right; and although in some appeals against enforcement notices
which appear to have taken away such rights, inspectors, or the Secretary of
State, have inserted the saving clause in respect of ancillary uses, the courts
have made it clear that this is not strictly necessary. The rights are
always retained." (Again I add the emphases.)
In my view the judgment has a logical cohesion which enables it to stand alone
and I do not understand why its integrity is in any way dependent upon or
linked to Section 93 of the 1971 Act, now Section 181. The cornerstone of the
judgment is that no enforcement notice can take away legally permitted rights.
All else flows from that central proposition. It is based on Mansi:
Mansi remains good law: and those guiding principles govern the case
before us.
Conclusions.
If I accept Miss Robinson's short answer to the appeal, and I do, then applying
the Harfield approach and asking whether GPDO rights are retained, the
short answer is that they are and so the appellant should not be at risk of
prosecution if, having discontinued the permanent use of his land for the
Sunday markets and car boot sales, he then holds no more than fourteen such
markets in any one calendar year.
A longer answer is obtained by working through the statutory scheme. An
enforcement notice can only properly be issued where there has been a breach of
planning control: Section 172(1)(a). The activity which the authority can
require to cease is the discontinuing of that use of the land which, it must
follow, constitutes that breach of planning control. The local authority would
have no power to require the cessation of any use of the land which is lawful
use. Their powers are limited to and circumscribed by the Act. A breach of
planning control is constituted by carrying out development of the land without
the required planning permission: Section 171A(1)(a). If he were to act
within the scope of the GPDO, the appellant would act within, not without,
permitted planning permission: Sections 58 and 59. Because use within the
GPDO is permitted use, it is lawful use and we are back to Mansi and
Harfield. The enforcement notice cannot take away legally permitted
rights of use.
I appreciate that in Mansi the decision in question was sent back to the
Minister with a direction that he should amend the notice to safeguard the
appellant's established right as found by the Minister to carry on the retail
trade in the manner and to the extent which the Minister had found to have been
the old established use. In that case it made obvious good sense to do so.
Having found what use was to be treated as established use, `twere well that
the Minister define it to avoid any future argument as to the extent of that
which he found. There is, by contrast, absolutely no need at all to refer to
the GPDO because it operates as a matter of law within parameters that are
certain, being those defined by the order itself. The local planning authority
and the inspector were right to apply the KISS principle to this notice by
keeping it short and simple.
Having already offended that principle myself both in terms of the length and
content of this judgment, I still have to deal with the amendments to Section
179. Three points arise. The first is the effect of those changes. They
simplified an otherwise quite complex set of provisions in which there were
distictions to be drawn between an "original owner" and a "subsequent owner"
and the shifting of liability between them. There was a change to format of
the offences but I see no significant difference arising out of the way the
offences are now grouped and defined. Engaging in "activity required by this
notice to cease " is not materially different in substance from making "a use
of land" which was "required to be discontinued."
The second point is that if the section is literally applied, then the
offence may be said to have been committed whenever he held a market or car
boot sale after the cessation of the permanent use even if it was within what
would have been permitted by the GPDO because the "activity required by the
notice to cease" was "using any part of the land for the purposes of holding
markets and/or car boot sales". But a literal construction is the wrong
construction. The purposive construction is to be preferred. The purpose to
be served is to confine the activity which is to cease to the activity which
constitutes the breach of planning permission. That was, it is common ground
in this case, the holding of permanent markets and/or car boot sales.
The notice cannot be construed so as to make a criminal offence out of lawful
activity. GPDO activity is lawful activity. It is legitimate to conduct
it.
Thirdly there is the introduction of the words "at any time" which troubled the
judge and led him to wonder whether Section 181 had been rendered otiose. I do
not share that concern. The words simply made clear that time begins to run
after the end of the period for compliance with the enforcement notice. No
offence is committed before then. I confess I have failed to understand why
Section 181 has to be "imported" into Section 179. Section 181 has its own
proper part to play in the scheme. The purpose of Section 181 is to make plain
that the enforcement notice operates permanently and does not cease to have
effect once there has been compliance with its terms. It is right that that
should be separately stated. It would be unsatisfactory to leave that
important principle in the air to be deduced only from the use of the words "at
any time" in a section which has the sole function of creating criminal
offences.
Looking at the terms of Section 181, it seems to me that the conclusions I have
already reached are supported by the language of the section though in my view
those conclusions are not necessarily solely dependent upon it. What must be
discontinued permanently is that use of the land which the enforcement notice
required to be discontinued but only "to the extent that it is in
contravention of Part III." This serves to confirm the analysis I
have already made of the preceding sections to the effect that it is breaches
of planning permission which are not countenanced whereas uses with planning
permission are not caught by the enforcement notice. Accordingly, as Section
181(2) provides, "resumption of that use", i.e. resumption of the
unlawful use in breach of planning control "at any time after it (the unlawful
use) has been discontinued in compliance with the enforcement notice shall
to that extent", (i.e. to the extent it is in contravention of Part 111,
or in other words, to the extent it is use without planning permission,
and by implication to that extent only and to no other extent), continue to be
in contravention of the enforcement notice. In my judgment it all hangs
together.
The result is hardly a surprise: The appellant is entitled to use his land for
GPDO purposes once he has indicated that he has ceased to use it for and has in
fact discontinued the permanent purposes prohibited by the enforcement notice.
The enforcement notice is clear and certain and requires no amendment. If the
appellant has gained anything by delaying the inevitable curtailing of his
business and by such consolations he can derive from this judgment, then he
will be happy even though his appeal has to be dismissed. It must be rare that
one wins though one loses.
Lord Justice Judge: I agree.
Mr Justice Bell: I also agree.
Order: Appeal dismissed with costs.
(Order does not form part of approved judgment.)
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