\
BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Printable RTF version]
[Help]
Case No: QBENF 99/0762/C
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST - Mr N MACLEOD QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 12th April 2000
B e f o r e :
LORD JUSTICE ROCH
LORD JUSTICE BROOKE
and
LORD JUSTICE SEDLEY
- - - - - - - - - - - - - - - - - - - - -
|
ROGER
RAYMOND JARMAIN
|
Appellant
|
|
-
and -
|
|
|
THE
SECRETARY OF STATE FOR THE ENVIRONMENT & ANR
|
Respondent
|
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr Christopher Katkowski, QC & Mr D Forsdick (instructed by Leigh
Day for the Appellant)
Miss Nathalie Lieven & Mr J Maurici (instructed by The Treasury
Solicitors for the Respondent)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE ROCH:
This is an appeal from the judgment of Mr Nigel Macleod, QC sitting as a Deputy
Judge of the High Court given on the 12th March last year. In that judgment Mr
Macleod upheld the decision of a planning inspector dismissing the appellant's
appeals against an enforcement notice. The inspector's decision was dated the
23rd November 1998.
The appellant owns two hectares of land at Milkwood Farm, Dixon Hills Close,
Welham Green, Hatfield which he bought with his then wife in 1981.
Subsequently the appellant and his wife separated. They were divorced in 1995
and the land was finally transferred into the appellant's sole ownership on the
9th September 1996.
When the land was first acquired the appellant was employed by the Post Office.
The appellant and his wife farmed the land together with a further 26 hectares
which they used under gentlemen's agreements, there being no agricultural
tenancy nor even a licence. The land was used for grazing dairy goats and
sheep and for poultry.
At the outset, the appellant applied for permission to have a mobile home on
the land. The Local Planning Authority, the Welwyn Hatfield District Council
refused that application but it was allowed on appeal in 1983. The principal
reason for allowing the appeal seems to have been that the type of farming
activity coupled with the proximity of housing made it desirable, if not
necessary, that at least one person be resident on the land.
A mobile home was brought onto the land in 1983. The permission was for a
limited period. There were three subsequent renewals, the last being in 1992
for a period of 3 years expiring on the 31st March 1995. An application for a
further renewal in 1995 was refused on the 27th October that year, the
application having been made on the 31st March. Prior to that application
being refused, three local authority officers visited the land on the 16th
August 1995 and inspected the appellant's home.
In fact in March and April 1993 the appellant had changed his accommodation
from that of a mobile home to a permanent single storey dwelling. That had
occurred in this way: the mobile home so far used by the appellant and his
family, his family being his wife and daughter, was in a poor state of repair.
In fact, the appellant's wife and daughter had left that mobile home and
started to live in a smaller caravan which had been brought onto the land,
without planning permission, and which was to remain there until the 13th
October 1994, when it was removed by the Local Planning Authority at the
appellant's request. By that time the appellant's marriage had irretrievably
broken down.
Returning to March 1993 the appellant decided to obtain a new and larger mobile
home, namely a double unit. That unit was damaged whilst being brought onto
the site. What then happened was described by the appellant in a statutory
declaration which he made on the 10th April 1997, which forms an exhibit to the
affidavit of the principal development control officer of the local planning
authority, Mr Chivers sworn on the 19th January last year for the purposes of
these proceedings.
"6. In early 1993, it was evident that the existing conditions could not
continue and I decided to expedite the provision of a twin unit mobile home and
to use the alternative route from the slip road at the end of Dixon Hill Close,
across the intervening field to Milkwood Farm. Accordingly, I purchased a unit
from C Jenkins of Lingfield East Sussex, and this was delivered on the 13th
March 1993. .....
7. The mobile home was towed by tractor across the field and, in the process,
it was severely damaged. The whole unit twisted, the frame cracked and the
roof ripped. Nevertheless, it was sited but I immediately sought advice as to
what to do to make the unit safe and habitable.
8. Upon close inspection of the damage, it became clear that the unit was
beyond viable repair and I decided to erect new wall panels around the damaged
unit, and to form a new roof. On the 16th March 1993 I ordered prefabricated
wall panels and roofing sheets from Fergus Carey of Radlett. Mr Carey has
supplied various materials over a number of years in association with the
construction of buildings on the small holding. Other building material came
from Mr Glassey, who had a yard at Colney Heath, and others. I attach as
Exhibit B various invoices for materials which I can confirm were associated
with the construction of the dwelling at Milkwood Farm during the early part of
1993.
9. The wall panels were delivered on the 20th March 1993. These were erected
on a hard standing, set in concrete and secured with ragbolts. The panels were
also bolted together with timber boards (now painted black) covering the
joints. I also placed 7" by 2" timber beams across the width of the entire
unit and erected a roof, using boarding and felt, thus encasing the mobile
home. This work was finished on the 29th March. By this date, I had also
virtually completed dismantling the mobile home which included cutting up and
removing the chassis. I retrieved what material I could for reuse in the
construction.
10. The floor was delivered by Mr Glassey on the 26th March. It apparently
came from an old gymnasium; it still bears the marks of that use, with
permanent lines for various sporting activities. The floor was cut to fit and
immediately set down on the timbers I had provided for this purpose.
Partitioning was constructed and lined, mostly with tongue and groove timber
boarding.
11. Mr Glassey constructed the drainage on the 4th April with runs from the
bathroom and kitchen areas to the existing septic tank. A plumber installed
pipework, bathroom fittings and a kitchen sink between the 6th and 8th of
April. With the completion of the electrics on the 12th April, the unit was
complete and available for occupation."
As I have already indicated the temporary permission expired on the 31st March
1995, on which day the appellant made an application for renewal of temporary
permission. That application lead to the inspection by council officers on the
16th August 1995 and the refusal of the application for temporary renewal on
the 27th October 1995.
On the 22nd March 1996 the Local Planning Authority issued an enforcement
notice alleging breach of condition. The notice asserted that it appeared to
the council that there had been a breach of planning control under s.
171A(1)(b) of the Town and Country Planning Act, 1990 as amended by the
Planning and Compensation Act, 1991. The breach of planning control alleged
was
"On 13.3.1992 Planning Permission ....... was granted for the retention of a
mobile home on the land for agricultural use, being renewal of temporary
planning permissions granted in 1985 ...... and 1988...... subject to
conditions. One of the conditions (Condition No 1) is that the permission
shall be for a limited period only, expiring on 31st March 1995, when the use
hereby permitted shall be discontinued and the site restored to its former
conditions in all respects .......... It appears to the council that the
condition has not been complied with because the mobile home remains on the
land following expiry of the said planning condition."
The notice went on to indicate that what the appellant was required to do was
to remove the mobile home from the land, within a period of 6 months after the
notice took effect. The notice was to take effect on the 17th May 1996.
On the 9th May 1996 the appellant lodged an appeal against that enforcement
notice. We do not have the grounds on which that appeal was launched. On the
14th April 1997 the appellant made an application for a certificate of
lawfulness under s 191(2)(a) of the Act, on the ground that the single story
building he had erected on the site in March and April 1993 was lawful because
no enforcement action could be taken against the erection of that building, the
time for enforcement action having expired. The Local Planning Authority
refused the application for a certificate of lawfulness.
On the 3rd March 1998 the first enforcement notice was withdrawn. Ten days
later on the 13th March a second enforcement notice was issued headed
"Operational Development". The notice asserted a breach of planning control
under s. 171A(1)(a) of the Act. The breach of planning control alleged was
"Without planning permission, the erection of a single story building in the
approximate position marked with a cross on the attached plan (hereinafter
called "the building")". In the reasons for issuing the notice, that is to say
paragraph 4 of the enforcement notice this is stated:
"It appears to the council that the above breach of planning control occurred
in or around March 1993. The building appears to have been designed as a
dwelling house. In respect of the building, on the 22nd March 1996 the council
issued an enforcement notice alleging: ...."
(and here the council set out the terms of the first enforcement notice).
Paragraph 4 then went on:
"The enforcement notice of 22nd March 1996 was withdrawn on the 3rd March 1998
since it appeared to the council that the building did not constitute a mobile
home. The council consider it expedient, having regard to the development plan
and all other material considerations, to issue the enforcement notice in
exercise of its powers contained in sections 172 and 171B(4)(b) of the 1990
Act."
The council then set out the planning policies and considerations which had
lead it to issue the second notice.
The notice required the appellant to "remove the building" in a period of 6
months from the date of the notice taking effect. The notice was to take
effect on the 30th April 1998.
The appellant appealed against that enforcement notice on three of the seven
grounds set out in s. 174(2) of the Act. The first was (a) that planning
permission ought to be granted for the single storey building he had
constructed in March and April 1993. The second was (d) "that, at the date
when the notice was issued, no enforcement action could be taken in respect of
any breach of planning control which may be constituted by those matters." The
inspector dismissed the appeal on each of those grounds. The third ground was
(g) that the period specified in the notice fell short of what should have been
reasonably allowed. The inspector allowed the appeal on this point and
increased the period for removing the building to one of 12 months.
This appeal is concerned with the inspector's decision that at the date when
the second enforcement notice was issued enforcement action could still be
taken by the local planning authority "in respect of any breach of planning
control which may be constituted by those matters", those matters being, by
referral back to sub-paragraph (a) of the sub-section "the matters stated in
the notice".
The inspectors' findings in relation to this ground of appeal are contained in
paragraphs 10 and 11 of his decision. They read:
"10. It would appear that there was a second, smaller mobile home on the appeal
site which was occupied by your wife for a period of time. However, this was
removed from the site in October 1994. Having regard therefore to the planning
application made on 31 March 1995 for the further renewal of temporary
permission for a mobile home, your then agent's letter dated 14 April 1997
accompanying the application for an LDC in respect of a single storey dwelling
on the site and your client's statutory declaration dated 10 April 1997, I
conclude that both enforcement notices were directed at the same structure. I
further conclude that when the Council issued the first enforcement notice on
22 March 1996 the mobile home previously on the site in the position marked "X"
on the plan accompanying both notices, had already been physically altered to
form a permanent dwelling with the works completed on the 12 April 1993. I
therefore conclude that the Council erroneously described the structure on the
site as a mobile home and the breach as a breach of condition. This error was
clearly rectified by the second notice issued on the 13 March 1998 following
the withdrawal of the first notice on 3 March 1998. It is therefore my finding
that while the actual description of the breach differed, in issuing the second
enforcement notice the Council purported to take enforcement action in respect
of the same breach which they purported to do under the first notice. In this
respect I take no issue with the obiter dicta remarks of the Deputy Judge in
the William Boyer (Transport) Ltd Case to which you referred, although
that case concerns issues significantly different from your case and gave no
ruling of principle on the interpretation of s. 171B(4)(b). The Council were
therefore in my view fully entitled to take further enforcement action under
the provisions of s. 171B(4)(b).
11. I therefore conclude in respect of your ground (d) appeal that the breach
of planning control alleged in the enforcement notice is not immune from
enforcement action because the time for taking enforcement action has not
expired. Your appeal on ground (d) therefore fails. Arising from this
conclusion, I further conclude that the Council's decision to refuse to grant
an LDC for the development applied for was well-founded."
Section 171B of the Act, introduced into the Act by the amendments made by
Parliament in 1991 reads:
"(1) Where there has been a breach of planning control consisting in the
carrying out without planning permission of building, engineering, mining or
other operations, in, on, over or under land, no enforcement action may be
taken after the end of the period of four years beginning with the date on
which the operations were substantially completed.
(2) Where there has been a breach of planning control consisting in the change
of use of any building to use as a single dwellinghouse, no enforcement action
may be taken after the end of the period of four years beginning with the date
of the breach.
(3) In the case of any other breach of planning control, no enforcement action
may be taken after the end of the period of ten years beginning with the date
of the breach.
(4) The preceding subsections do not prevent:-
(a) the service of a breach of condition notice in respect of any breach of
planning control if an enforcement notice in respect of the breach is in
effect; or
(b) taking further enforcement action in respect of any breach of planning
control if, during the period of four years ending with that action being
taken, the local planning authority have taken or purported to take enforcement
action in respect of that breach"
It is not in dispute that there are two different categories of breach of
planning control; a breach consisting in the carrying out without planning
permission of certain operations on the land, such as building, and the second
being a breach of planning control consisting in a change of use. Into this
second category would fall the continuation of a permitted temporary use of the
land beyond the date set as a condition for such temporary use. Under s. 171B
no enforcement action may be taken in respect of a breach of planning control
consisting in the carrying out without planning permission of operations on
the land after the end of the period of four years beginning with the date on
which the operations were substantially completed. But for s. 171B(4)(b), in
this case that date was the 13th April 1993 and the four year period would have
expired by the 13th April 1997. In all other cases of breach of planning
control the period of time after which no enforcement action can be taken is
ten years beginning with the date of the breach, except where the use of a
building has been changed to a single dwellinghouse where again the period is
four years beginning with the date of the breach.
It was also common ground between the parties that the correct approach to s.
171B(4)(b) is to look at the enforcement notice that the local planning
authority is relying on, that is the second enforcement notice, and ascertain
the breach of planning control in that enforcement notice and then to look at
the earlier enforcement notice issued during the period of four years preceding
the second enforcement notice and to ask whether the local planning authority
had in that first enforcement notice taken or purported to take enforcement
action in respect of "that breach".
The submission of Mr Katkowski, QC, who appeared for the appellant, is that
"that breach" must mean that the breach which founds the first enforcement
notice must be the same as the breach which founds the second enforcement
notice. The breach which founded the first enforcement notice was a breach of
planning control consisting in the change of use of the land, in breach of the
condition in the temporary permission, whereas the breach which founded the
second enforcement notice was the carrying out on the land without planning
permission of a building operation. Those are completely different breaches of
planning control. In the case of the first the period of time within which
enforcement action can be taken is 10 years, whereas in the case of the second
the period of time in which enforcement action can be taken is four years.
There are other differences recognised in s-s (1) of s. 171A where the two
different types of breach of planning control are expressly recognised.
Section 171A(1) provides
"for the purpose of this Act
(a) carrying out development without the required planning permission; or
(b) failing to comply with any condition or limitation subject to which
planning permission has been granted, constitutes a breach of planning
control."
Equally this distinction is recognised in s. 55 of the Act which sets out the
meaning of "development" and "new development", s. 57 containing the statutory
requirement that development must have planning permission. A further
distinction between the two categories is that in the case of a breach of
planning control by failing to comply with a condition or limitation, the local
planning authority in addition to, or in substitution for, enforcement action
now has the power under s. 187A of the Act to serve a breach of condition
notice, either on the person who is carrying out, or has carried out the
development, or on any person having control of the land. From such a notice
there is no appeal. At the end of the period allowed for compliance in the
notice, if the condition specified in the notice has not been complied with or
steps specified in the notice have not been taken or activities specified in
the notice have not ceased, then the person responsible is not merely in breach
of the notice, he is also guilty of a criminal offence, unless he can establish
one of the two defences set out in sub-paragraph (11) of s. 187A.
Mr Katkowski submitted that as s-s (4)(b) of s. 171B was over riding the basic
time periods contained in the first three sub-sections of that section, s-s
(4)(b) should be strictly construed. The further advantage of a strict
construction was that one simply had to read the enforcement notices to
discover whether the breaches which founded each enforcement notice were the
same.
Miss Lieven for the respondents adopted the reasoning by which the deputy judge
came to uphold the inspector's conclusion on this ground. The deputy judge
said:
"When s. 171B is read as a whole it appears clear that the section is
concerning itself with breaches of planning control and the time limits
applicable when enforcing against these breaches.
Various types of planning control relating to different types of development
are referred to in the section. What the section is concerned with are the
various acts of development which constitute the breaches of control, not the
description of the substantive activities. It is the subject matter of the
enforcement notice, the actual development which is being referred to by the
words "that breach", rather than the words which have been used to characterise
the development which itself constitutes the breach of planning control. The
description of a breach cannot in itself be a breach of planning control. What
this proper interpretation means is that the sub-section cannot be used to
cover two different physical developments or two different changes of use, but
it can be used to cover the same actual breach of development control which is
described in different ways.
This interpretation is clear enough from the wording of the section, but it is
also apt for illustration by the facts of this case. The facts of the
situation are that a permanent dwellinghouse had been constructed by 12th April
1993 without planning permission. That constituted a breach of planning
control. Such a breach is identified in s. 171B(1). The local planning
authority purported (note that is the word used in s. 171B(4)(b)) to enforce
against that physical development, a dwelling house construction, but,
mistakenly, did not appreciate that the development, carried out was a
permanent dwelling house; they therefore described the breach as a mobile home
still on site in breach of the time limit condition. That mistake did not
change the nature of the breach of planning control which was still
construction of a permanent dwelling house without planning permission and it
was plainly against that physical development that the local planning authority
had purported to enforce. When they learned of their mistake they correctly
described the breach of planning control in a new enforcement notice, but it
was still the same physical development construction which had always been the
only breach of planning control under consideration, and therefore the second
enforcement notice was enabled by the sub-section and the inspector was correct
in taking this approach.
This interpretation is also consistent with the purpose of the section, which,
as can be seen in the footnote to the sub-section in Volume 2 of the Planning
Encyclopedia (2-3598/1), removed the protection given to developers in previous
legislation who succeeded in establishing technical error in enforcement
notices while time continued to run, so that cases arose when time for service
of an enforcement notice without the defect had elapsed."
The resolution of this case adopted by the Inspector and the Deputy Judge has
the advantage, identified by the Deputy Judge in the last paragraph in the
passage cited from his judgment, which is a sound reason to read the
sub-section in the way both he and the inspector read it. It is a reason which
found favour with Evans LJ in William Boyer Ltd -v- Secretary of State for
the Environment [1996] 1 PLR 103 at 106H where Evans LJ said:
"The reason for the four year extension for further enforcement action
permitted by s. 171B(4)(b), as I understand it, is that a notice issued within
the 10 year period may prove or be held to be defective, and the local planning
authority can take further action, within the four year period, in order to
avoid being defeated on what may be technical grounds."
Moreover this reading derives support from s. 173 of the Act s-s (1) of which
provids:
"An enforcement notice shall state
(a) the matters which appear to the local planning authority to constitute the
breach of planning control; and
(b) the paragraph of s. 171A(1) within which, in the opinion of the authority,
the breach falls"
Sub-section 2 provides:
"A notice complies with s-s (1)(a) if it enables any person on whom a copy of
it is served to know what those matters are."
These provisions lay stress on the physical situation on the land or the
operations or activities on the land.
On the other hand, s-s (1) does distinguish between "the breach" and the
physical reality on the site. The appellant can argue that s. 171(B)(4)(b)
could have ended with the words "taken or purported to take enforcement action
in respect of those matters which appear to the local planning authority to
constitute the breach" making it clear that what was being looked at was the
physical reality on the ground.
The issue is whether the phrase "that breach" refers to the physical situation
on the land be it a structure or an operation or activity or whether it refers
to the legal concept of a breach of planning control. A problem with the
reading adopted by the inspector and the deputy judge is that it could have the
consequence that an enforcement notice requiring the removal of, for example, a
building or dwelling might be validly issued after 13 years in this way: the
first enforcement notice based on a breach of planning control other than those
covered by s. 171B(1) or (2) is issued nine years after the breach of planning
control occurred. The local planning authority then issues a second
enforcement notice within four years of the first enforcement notice in respect
of the same physical situation on the land but alleging, this time accurately,
that the building was carried out without planning permission. Would the local
planning authority be able to take enforcement action because they had taken or
purported to take enforcement action in respect of the same physical situation
on the land within the four years preceding the issuing of the second
enforcement notice?
When this possible consequence of the reading of the Act for which her clients
contended was raised by me with Miss Lieven, she accepted that such a
consequence could not have been intended by Parliament. It can be observed
that it is clear from the provision in s. 171B(2) that Parliament intended that
a home which had been used for four years without effective enforcement action
being taken within that period should be safe from enforcement action.
Counsel for both parties were afforded the opportunity to submit further
written submissions on this point.
In her further written submission Miss Lieven wrote:
"If this situation could arise (the situation of enforcement notice being
served 12, 13 or 14 years after the breach of planning control) then the effect
would be that a development which had become lawful after four years could then
be caught by a "second bite" enforcement notice many years after the time limit
for enforcing against it had arisen under s. 171B(1). "
Miss Lieven went on to submit:
"It is submitted that this situation could not arise because of the effect of
the decision of the Court of Appeal in Boyer -v- Secretary of State for the
Environment ........ in Boyer it was held that in order for the
"second bite" provision to apply it was necessary that the first enforcement
notice was within the time limit specified by s. 171B, see page 107B and page
108G-H in the judgment of Evans LJ. Therefore despite the words "purported to
take enforcement action" in s. 171(4)(b) the second bite provision did not
apply to a situation where the first enforcement notice was itself outside the
time limits. It is submitted that applying the same reasoning to the facts of
the present case the first enforcement notice must be served within the time
limit period applicable to the facts of the case. Therefore it is not open to
the local planning authority to serve an enforcement notice alleging breach of
condition within eight years and then rely on the second bite provision to
serve a subsequent enforcement notice alleging operational development. The
first enforcement notice, on these facts, would not have been served within the
correct time limit, i.e. four years because the actual breach was operational
development. Therefore the local planning authority could not rely on the
second enforcement notice."
In Boyer's case the first enforcement notice was served more than ten
years after the breach of planning control. Mr Katkowski submits that if Miss
Lieven is correct in these submissions, it underlines that the breaches are not
the same. The local planning authority would issue an enforcement notice 9
years following the breach of planning control based on the presence of the
structure on the land alleging failure to comply with a condition; i.e. the
local planning authority would have purported to have taken enforcement action,
and would have a further four years to issue a second enforcement notice based
on operational development without planning permission. Miss Lieven's
submission is that the first enforcement notice would be ineffective because it
was served after the expiration of the correct time; "it was itself outside the
time limits". The only way in which this result can be arrived at, the
structure on the land being the same structure, is by saying that the breach of
planning control relied upon in the first notice is not the breach of planning
control that actually occurred; it is a different breach.
Whilst recognising the force of the submissions made by Mr Katkowski for the
appellant that s. 171B(4)(b) must be read literally, the reading of the
sub-section for which he contends would lead to a return to the technicalities
which bedevilled the enforcement of planning control prior to the passing of
the 1990 and 1991 Acts. The problem which I raised with counsel towards the
end of oral argument on which counsel made written submissions, is not an issue
which arises on the facts of this case. It is to be hoped that no local
planning authority would seek to circumvent the time limits contained in s.
171B(1) and (2) in this way. Were such a course to be adopted, it is to be
hoped that the answer suggested by Miss Lieven based on the observation of
Evans LJ in Boyers Case, that the court would look at the reality of
what was on the site and say that for that breach of planning control the four
year period had elapsed before the service of the first enforcement notice and
enforcement action was, as a consequence, no longer possible.
In any event, I do not consider that this point should lead this court to
differ from the reading of s. 171B(4)(b) adopted by the Inspector and the
Deputy Judge. Finally, I have had the advantage of reading the judgment of
Brooke LJ in draft, and for the reasons I have attempted to state and the
reasons he gives, I would dismiss this appeal.
LORD JUSTICE BROOKE:
On this appeal we are being invited to interpret the meaning of Section
171B(4)(b) of the Town and Country Planning Act 1990, as amended. This
sub-section reads, so far as is material:
"(4) The preceding subsections do not prevent -
....
(b) taking further enforcement action in respect of any breach of planning
control if during the period of four years ending with that action being taken,
the local planning authority have taken or purported to take enforcement action
in respect of that breach."
The planning inspector considered that the relevant breach of planning control
arose from the presence on the site of a structure in the position marked "X"
on the plan accompanying both enforcement notices, for which planning
permission had not been given.
The deputy judge (Mr Nigel Macleod QC) adopted much the same approach. He
considered that the relevant breach of planning control arose from the
construction of a permanent dwellinghouse on the site at that position, and
that the local planning authority had purported to take enforcement action in
respect of that breach when it issued its first enforcement notice. In that
notice it misdescribed the breach as consisting of the continued presence of a
mobile home in contravention of the time limit condition contained in the 1991
temporary permission.
Mr Katkowski QC, for his part, showed us how Section 171B(1)-(3) mentions three
different types of breaches of planning control:
(1) a breach which consists of what I will call "operational development";
(2) a breach which consists of the change of use of any building to use as a
single dwellinghouse;
(3) any other breach.
In these circumstances he argued that when Parliament used the expression "any
breach of planning control" in sub-section (4) it was alive to the distinction
contained in Section 55(1) of the Act between operational development and
development which involves the making of any material change in the use of any
buildings or other land. In those circumstances, he says, the breach of
planning control complained of in the second notice was a different breach of
planning control from that complained of in the first notice, so that the first
notice could not properly be interpreted as referring to "that breach".
I have not found this issue an easy one to resolve. A purist approach to the
language of the section, taken as a whole, tends to favour Mr Katkowski's
approach. On the other hand a planning inspector and a deputy judge of vast
experience in the field of planning law have both adopted a different,
pragmatic approach which appears to me to accord more closely to the justice of
the case. Which is right?
The background to the change of the law which was introduced in 1991 goes back
30 years. Section 45 of the Town and Country Planning Act 1962, which was a
consolidating Act, had maintained a four-year limitation period for all
breaches of planning control. An enforcement notice had to be served within
four years from the "carrying out" of the unauthorised development (whether it
consisted of operational development or a material change of use), or within
four years from the date of any alleged failure to comply with a condition or
limitation subject to which planning permission was granted (see s 45(2) of the
1962 Act).
Section 15 of the Town and Country Planning Act 1968 abolished the limitation
period in cases involving material change of use. It now prescribed a
four-year limitation period not only in cases involving operational development
or a breach of condition or limitation but also in cases involving "the making
without planning permission of a change of use of any building to use as a
single dwellinghouse" (see s 15(3) of the 1968 Act). Special provision was
made in Section 18 of that Act for the introduction of "established use
certificates" which in effect retained immunity for unauthorised uses of land
that had already achieved immunity under the four-year limitation period which
was now being abolished, except as provided for under Section 15(3). Although
the language of Section 17(1) is complicated, this immunity in essence related
to pre-January 1964 unauthorised changes of use which were still being
continued.
This regime, apart from one immaterial addition to the four-year limitation
regime introduced in 1981 (see Local Government and Planning (Amendment) Act
1981 s1 and Schedule 1, para 1 and s 87(4)(d) of the substituted Section 87 of
the Town and Country Planning Act 1971 set out in that schedule) continued
until after the enactment of the consolidating Town and Country Planning Act
1990 (see Section 172(4) of the 1990 Act, as originally enacted, for the
re-enacted scope of the four-year limitation rule).
Part VII of the 1990 Act was concerned with the enforcement of planning
control. The Planning and Compensation Act 1991 introduced major alterations
to this statutory enforcement regime, including all the new provisions with
which we are concerned on this appeal. It was preceded by a major
Government-sponsored review conducted by Mr Robert Carnwath QC, whose report
was published by HMSO in 1989 under the title "Enforcing Planning Control". Mr
Carnwath's remit, so far as is material, was to examine the scope and
effectiveness of the provisions relating to enforcement and to make
recommendations for improvements to the present provisions or for alternative
provision.
One of the mischiefs Mr Carnwath identified related to the continued existence
of "the 1964 rule" and the absence of any limitation period in relation to
enforcement action concerned with material changes of use. He also identified
one other problem relating to the four-year protection period given to breaches
of condition. So far as the first of these matters is concerned, Mr Carnwath
favoured the substitution of a new rolling period of immunity from enforcement.
I am satisfied that the substituted Section 171B(1)-(3) of the 1990 Act
represent Parliament's solution for the remedying of these mischiefs.
It appears to me that the substituted Section 171B(4)(b) of the 1990 Act is
concerned with a different problem, and we were told by counsel that it did not
arise out of any of the recommendations of the Carnwath Review.
Anyone who had any experience of the operation of the former law relating to
the enforcement of planning control knows that it was disfigured by
time-consuming litigation over technicalities raised by determined litigants
who sought to evade the effects of enforcement action taken against them by
local planning authorities on behalf of their local communities.
From time to time there were judicial explosions on the topic. Among these the
most colourful was that of Templeman J in 1974, and the most resigned that of
Mr Graham Eyre QC, sitting as a deputy high court judge in 1988.
In Eldon Garages Ltd v Kingston-upon Hull County Borough Council [1974]
1 All ER 358 Templeman J ended his 18-page judgment at p 375 with these
words:
"The result of this submission, if I acceded to it, would be that the
enforcement notice is a kind of spell by a witch doctor and unless the witch
doctor gets the exact words of the incantation right, then the spell does not
work. Well, although, as the House of Lords pointed out, one has got to be
very careful in these cases because of the individual rights involved, we have
not yet got to that stage and I do not propose to begin getting near that stage
...
That being so, it seems to me that I must dismiss this summons. This is not
an enforcement notice which relates to Bleak House, and although counsel for
the plaintiffs has argued this case very skilfully and has put forward every
argument open to him, I intend no disrespect to him and no criticism of anybody
when I say that it is time that the pettifogging was stopped and I dismiss this
summons."
With a wearied resignation born of a professional lifetime of experience of all
the difficulties posed by the existing law, Mr Graham Eyre QC said in West
Oxfordshire District Council v Secretary of State for the Environment
(1988) JPL 324 at pp 324-5:
"It [is] perhaps remarkable that nearly four decades [have] passed since the
enforcement notice machinery first emerged in the Town and Country Planning Act
1947, during which time the legislature [has] made substantial amendments to
the statutory provisions so as to remove or substantially reduce the powers of
the courts to interfere on technical grounds, and yet this court [has] been
treated to a rehearsal of somewhat arid technicalities most of which [have] a
ring of nostalgia, in its true sense, and largely unwelcome familiarity."
I am quite satisfied that one of Parliament's main purposes in 1991 in
overhauling Part VII of the 1990 Act was to spare those like Mr Eyre the pain
of returning to those arid technicalities. In a different context, when
interpreting Section 176(1) of the Act, also newly inserted in 1991, I said in
Hammond v Secretary of State for the Environment [1997] JPL 724 at p
732:
"I completely agree with Roch J when he said in R v Tower Hamlets LBC ex p
P F Ahern (London) Ltd [1989] JPL 757 at p 768 that the law had now reached
the stage where the pettifogging had stopped, where artificial and nice
distinctions understood only by lawyers no longer prevailed ..."
I remind myself that Mr Carnwath's radical remit included the making of
recommendations for alternative provisions relating to enforcement if he
considered that mere "improvements" to the present provisions would not remedy
the disease.
Against this background I turn to the present appeal. In his attractive
submissions Mr Katkowski QC did not suggest that his client's case had any
merits at all. He confined himself to arguing that it was well founded as a
matter of law. Unusually in a planning matter, there appear to have been no
photographs of the structure Mr Jarmain erected in 1993. What little we know
about it is that it was surrounded by wall panels erected on a concrete
hardstanding, the roof was made of board and felt, and other, unspecified,
materials were retrieved from the new mobile home which had been damaged when
it was being towed onto the site. Roch LJ has set out in his judgment the full
text of Mr Jarmain's description of the structure and I need not repeat it.
Mr Jarmain knew that a condition in his current temporary permission for a
mobile home required him to remove it from the site by 31st March 1995. On
that very day he applied for a renewal of that temporary permission. On 16th
August 1995 council officers visited the site. He does not appear to have
pointed out to them that what was now on site was no longer a mobile home
(despite the terms of his application over four months earlier) and they do not
appear to have spotted the effect of what he had done in 1993. For this
reason, when he failed to take the structure off the site after his March 1995
application had been refused, it is hardly surprising that the breach of
planning control of which the council complained in its first enforcement
notice was the retention of a mobile home on the land in breach of a condition
which required the permitted use to be discontinued on 31st March 1995.
Mr Jarmain then appealed against that notice. It is difficult to see how that
appeal could have been lodged in good faith given that he would have known that
the works he had carried out in 1993 meant that he did in fact no longer use
the land for the purposes of stationing a mobile home. However that may be, he
then waited (pending the hearing of his appeal) until just after the 4-year
limitation period for enforcement action against unauthorised operational
development had expired. He then applied for a certificate of lawfulness under
Section 191(2)(a) of the Act on the grounds set out by Roch LJ in his
judgment.
It appears to me that if we were to allow this appeal we would be in danger of
allowing enforcement law to return, in part, to the world of pettifoggery and
arid technicalities which attracted such strong judicial disapprobation in the
1970s and 1980s. In my judgment, this court ought to be very slow to depart
from the approach to the interpretation of Section 171B(4)(b) which was adopted
by a deputy judge with great experience in the planning field. He was
satisfied that the relevant breach of planning control consisted of the
erection of the unauthorised structure in the position marked on the plan
attached to the enforcement notice. The council purported to take enforcement
action in respect of that breach by its first notice but failed to do so
because it misdescribed the breach. It was therefore entitled by Section
171B(4)(b) to take further enforcement action because four years had not
elapsed since the date of the earlier purported action.
In my judgment, given the well-known mischiefs which the 1991 reforms were
enacted to remedy, the deputy judge has interpreted Section 171B(4)(b)
correctly. I would dismiss this appeal.
I would add, for completeness, that I have found it unnecessary to form a view
one way or the other on the issue discussed by Roch LJ towards the end of his
judgment, on which we received written submissions from counsel, at the request
of the court, after the hearing was completed.
LORD JUSTICE SEDLEY:
For the reasons given by Roch and Brooke LJJ I agree that this appeal fails.
To allow it would be to set a premium once more on technical challenges to
enforcement notices which have misled nobody. It would also, in a case like
the present one, be to reward conduct which at best was devious and at worst
deceitful. As is apparent from the account given by Roch LJ, the appellant
continued to claim that he had a mobile home on the site for as long as it
suited him to do so. Then, when he thought the time was up for enforcement, he
asserted that it was a permanent structure. When one looks - in the
unaccountable absence of photographs - at his account of what he had done to
the mobile home, it becomes easier to see why the council's officials were
taken in. He had, by his own account, set the structure on timbers, thereby
presumably elevating it from the ground; he had put on a board and felt roof;
and he had retrieved other, unspecified, materials "for use in the
construction".
It would make a farce of the legislation if by claiming that one unlawful use
was a different unlawful use a landowner could take advantage of the four-year
limit and acquire immunity from process for something he has known all along
was unlawful. Miss Lieven's submission has satisfied me that to read the
legislation as eschewing form in favour of substance does not give a slack
local authority, at least in certain instances, an unintended length of time in
which to get its notice right. The second notice must not only relate to the
same facts as constitute the breach to which the first notice related, but must
be served within the period for which the first one is to be taken to have been
good, namely four years.
Order: Appeal dismissed; order that the Legal Aid Board pay the
respondent's costs of the appeal under section 18 of the Legal Aid Act 1988,
such order suspended for 10 weeks to allow the board to make representations,
if they so wish; permission for leave to appeal to the House of Lords
refused.
(Order does not form part of the approved judgment)
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/126.html
