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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Epping Forest District Council v Philcox [2000] EWCA Civ 515 (08 December 2000) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/515.html Cite as: [2000] EWCA Civ 515, [2002] Env LR 2, [2000] NPC 146, [2002] PLCR 3

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Hooper)

		Royal Courts of Justice Strand London WC2
		8th December 2000

LORD JUSTICE PILL:

1. This is an appeal against a decision of Hooper J in which he dismissed an application by Mr Martin Philcox to quash a decision of the Epping Forest District Council ("the Respondents") whereby on 2nd July 1998 they granted a certificate of lawfulness of existing use to W. Lowe Commercials Limited in respect of land at Rockhills, Willingale, Essex. The certificate described the established use as "the breaking of motorised road vehicles and storage of parts". The certificate was granted, notwithstanding the fact that on at least a part of the site the operation had for a considerable time been conducted without the required waste management licence and therefore contrary to section 33 of the Environmental Protection Act 1990. That section is headed "Prohibition on unauthorised or harmful deposit, treatment or disposal of waste", and provides in subsection (1) that a person shall not conduct activities (including those with respect to which the certificate was issued) "except under and in accordance with a waste management licence". Subsection (6) provides that a person who contravenes subsection (1) commits an offence.

2. Section 191 of the Town and Country Planning Act 1990 ("the 1990 Act") provides, insofar as is material:

(1) if any person wishes to ascertain whether-

(a)any existing use of buildings or other land is lawful;

(b) any operations which have been carried out in, on, or over or under land are lawful; or

(c)any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.

(2) For the purposes of this Act uses and operations are lawful at any time if-

(a)no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and

(b)they do not constitute a contravention of any of the requirements of any enforcement notice then in force."

3. Subsection (3) deals with compliance with conditions or limitations subject to which planning permission has been granted. Subsection (4) provides for the issue of a certificate and subsection (5) sets out what shall be contained in the certificate.

(6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed.

(7) A certificate under this section in respect of any use shall also have effect, for the purposes of the following enactments, as if it were a grant of planning permission-

(a)section 3(3) of the Caravan Sites and Control Development Act 1960;

(b)section 5(2) of the Control of Pollution Act 1974; and

(c)section 36(2)(a) of the Environmental Protection Act 1990."

4. The relevant time limits for enforcement action are set out in section 171B of the 1990 Act. The expiry of those time limits provides an operator with immunity from enforcement action. It is common ground that the time limit in this case had expired when the certificate was granted.

5. Section 36(2)(a) of the Environmental Protection Act 1990 deals with the grant of waste management licences and how an application shall be made. Subsection (2) provides, insofar as is material:

A licence shall not be issued for a use of land for which planning permission is required in pursuance of the Town and Country Planning Act 1990 ... unless-

(a)such planning permission is in force in relation to that use of the land."

6. The effect of those provisions in the submission of the respondents in the present situation is that, though an offence has been committed under section 33 of the Environmental Protection Act 1990, the effect of section 191(2) is to render the relevant operations lawful for the purposes of the 1990 Act. The effect of section 191(7) is to provide that, when applying for a licence to conduct the relevant operations, the issue of the certificate under that section shall have effect for present purposes as if it were a grant of planning permission. Thus, the operator can apply to the authority for a waste management licence. It may be noted that he is not entitled as of right to such a licence. That is because section 36(3) of the Environmental Protection Act 1990 provides, insofar as is material:

... a waste regulation authority to which an application for a licence has been duly made shall not reject the application if it is satisfied that the applicant is a fit and proper person unless it is satisfied that its rejection is necessary for the purpose of preventing-

(a)pollution of the environment;

(b)harm to human health; or

(c)serious detriment to the amenities of the locality."

7. Thus, the waste regulation authority must first be satisfied that the applicant for a licence is a fit and proper person and, second, it has the power to reject the application if satisfied that it is necessary to do so to prevent the mischiefs set out in subparagraphs (a), (b) or (c).

8. In my judgment, the wording of section 191 is plain, and, subject to the point made by the appellant, it has the effect I have set out. Section 191 deals specifically and expressly with a specific problem. Its enactment followed the report of Mr Robert Carnwath QC in 1988 with its consideration of that planning status, the subject of earlier litigation, described as "unlawful but immune".

9. On behalf of the appellant, Mr Howard submits that section 191 must be read in the context of a fundamental presumption of law that a person must not gain from a breach of the law. The section does not, and cannot on its wording, certify as lawful acts which are criminal. If it could, the result would be that the valuable financial benefits which may follow from the grant of planning permission have been acquired by a course of criminal conduct; and there is a fundamental proposition of English law to the contrary. To read section 191 in the manner for which the respondents contend would be to place the planning legislation in a hermetically sealed unit, it is submitted. It would remove and isolate planning law from the general law of the land. Mr Howard accepts that at no point in the section can a word simply be included to give effect to what he submits is a general presumption and fundamental principle. The section must, however, be read, he submits, against the background of that fundamental principle.

10. Mr Howard does not challenge the power of a local planning authority to grant planning permission to an operator when what the operator is doing is in breach of section 33 of the Environmental Protection Act. That, he submits, is a different situation because the local planning authority have a discretion as to whether or not to grant permission to him. I interpose only that in terms of the public interest and public concern, the effect of the two situations, the purported operation of section 191 and the express grant which Mr Howard accepts would be lawful, is the same.

11. Mr Howard refers to three strands of authority in support of his submission. In Regina v Chief National Insurance Commissioner, Ex parte Connor (1981) QB 758 the Divisional Court construed section 24 of the Social Security Act 1975. That entitled a claimant to a widow's allowance if the woman has been widowed. That requirement had been satisfied. The widow had been convicted of the manslaughter of her husband and was widowed in that manner. The court decided that the allowance was not payable. Lord Lane CJ stated at page 765 B: The fact that there is no specific mention in the Act of disentitlement so far as the widow is concerned if she were to commit this sort of offence and so become a widow is merely an indication, as I see it, that the draftsman realised perfectly well that he was drawing this Act against the background of the law as it stood at the time."

12. Lord Lane concluded that the killing had been a "deliberate, conscious and intentional act", and that was sufficient to disentitle the claimant to recover.

13. Shortly afterwards, in Regina v Secretary of State for the Home Department, Ex parte Puttick (1981) QB 767, the Divisional Court construed section 6(2) of the British Nationality Act 1948 (as amended). It entitled to registration as a citizen "a woman who has been married to a citizen of the United Kingdom and Colonies". The claimant had been married to such a citizen. Donaldson LJ, sitting in the Divisional Court, cited the judgment of Lord Lane CJ in Connor and referred to the offences of perjury and forgery which the claimant had committed. Donaldson LJ referred to the case of Beresford, to which I too will refer. He concluded at 775 G:

For my part, I think that when the British Nationality Act 1948 was enacted it was well established that public policy required the courts to refuse to assist a criminal to benefit from his crime at least in serious cases and that Parliament must be deemed to have been aware of this. Against this background, bearing in mind additionally that citizenship is not only a matter of private right but also of public status and concern, in my judgment, Parliament can never have intended that a woman should be entitled to claim registration as a citizen of the United Kingdom and Colonies on the basis of a marriage achieved only by the commission of serious crime."

14. In Beresford v Royal Insurance Company Ltd [1938] AC 586 it had been held that the personal representative of a person who, having insured his life, committed suicide while sane could not recover the policy monies from the insurance company. That decision, too, was put on the ground of public policy. Lord Atkin stated at page 598: I think that the principle is that a man is not to be allowed to have recourse to a Court of Justice to claim a benefit from his crime whether under a contract or a gift. No doubt the rule pays regard to the fact that to hold otherwise would in some cases offer an inducement to crime or remove a restraint to crime, and that its effect is to act as a deterrent to crime. But apart from these considerations the absolute rule is that the Courts will not recognize a benefit accruing to a criminal from his crime."

15. Those are strong statements. They make it clear that claims to benefits under United Kingdom statutes can be construed in the light of the court's notions of public policy. It emerges from Beresford that claims against insurance companies may also be considered in the same light. The court is entitled to construe a statute, or a contract conferring benefits in the light of its ability to promote its notions of public policy. The cases do not, however, in my judgment, establish a principle that the plain words of a statute which define what is lawful must be read subject to a proviso that what is criminal cannot be lawful. Section 191, in a systematic way, defines what uses and operations are lawful for the purposes of the Act and states the consequences of achieving that status with specific reference to section 36(2)(a) of the Environmental Protection Act 1990. There is no principle of public policy which requires that the intent of Parliament as expressed in section 191 should be defeated in the manner claimed.

16. The second strand of authority relied on one upon the law of prescription. In Hanning v Top Deck Travel Group Ltd [1993] 68 P&CR 14, the plaintiff claimed by prescription an easement to convey vehicles along a track. It was argued against him that the acquisition of such an easement was prevented by section 193 of the Law of Property Act 1925, which rendered the use of manorial waste land without lawful authority, upon which he relied, illegal. Subsection (4) provided that:

Any person who without lawful authority draws or drives upon any land to which this section applies any ... vehicle ... shall be liable on summary conviction to a fine..."

17. Dillon LJ stated at page 20:

An easement cannot be acquired by conduct which, at the time the conduct takes place, is prohibited by a public statute. It appears to me an unanswerable difficulty in the defendant's way if, for the four or five years from the defendants' first acquisition of Young Stroat Farm, the user by the buses was illegal and a criminal offence each time the track was used by a bus, yet suddenly overnight, at the end of 20 years from the commencement of someone else's user in 1965, it all becomes legitimate.

Accordingly, in my judgment, the defendants in this case have not acquired any prescriptive right to drive their buses over the track across Horsell Common."

18. Dillon LJ referred to the case of George Legge and Son Ltd v Wenlock Corporation [1938] AC 204 on which Mr Howard also relies. That case involved the construction of the River Pollution Prevention Act 1876 which made it an offence to cause certain matters to enter a stream. Rights over the stream were claimed, but it was held that the status of a natural stream could not in law be changed to that of a sewer by the discharge of sewage into it, such discharge being unlawful. Lord Maugham stated at page 222: There is, however, no case in the books in which repeated violation of the express terms of a modern statute passed in the public interest has been held to confer rights on the wrongdoer. Such a contention is indeed quite untenable."

19. Those are cases upon the law of prescription. It can readily be inferred that the use contemplated in the law of prescription is a lawful use. That is a situation quite different from the present situation in which, as I have said in the earlier context, the statute provides what is lawful. A closer analogy under the law of prescription would be if a statute were passed specifying what types of use could and could not be lawful for the purpose of prescription.

20. The third strand of authority on which Mr Howard relies consists of two cases under the planning acts themselves. In Glamorgan County Council v Carter [1963] 1 WLR 1 it was claimed that planning permission was not required under the Town and Country Planning Act 1947 because of an existing use. Section 12(5) of the Act provided circumstances in which permission was not required if certain uses of the land had occurred. It was held that the applicant could not rely upon the section because the use contemplated in the section was a lawful use. The use relied on was criminal or quasi-criminal because it was in breach of a local authority scheme which made it an offence to use the land as it was used. Similarly, in Vaughan v Secretary of State for the Environment and Mid-Sussex District Council (1986) JPL 840 it was held that the use contemplated in section 94(2) of the Town and Country Planning Act 1971, where established subsisting usages were considered, did not include an illegal use.

21. In each of those cases, the inference could readily be drawn that the statute could be construed in the way it was. The cases do not assist, in my judgment, in the present situation where Parliament has spelt out what is lawful for the purposes of the Act.

22. The further point is made on behalf of the respondents that section 191(7) would be otiose unless it had the meaning for which they contend. In reply, Mr Howard has referred the court to provisions of the Waste Management Licensing Regulations 1994, which, he says, create a situation, at any rate on a transitional basis, where subsection (7) would have a purpose upon the construction of the section as a whole which he advocates. That may be -- I make no finding upon it -- but in my judgment the scheme of the section is clear. Subsection (7) is required because the waste management scheme provided by statute involves the obtaining of a licence. A prerequisite for obtaining a licence is the possession of planning permission. A certificate shall take effect for certain purposes as if it were a grant of planning permission. Section 191 of the Town and Country Planning Act 1990 fits comfortably with section 36 of the Environmental Protection Act. It may be added that we have been referred to section 3(3) of the Caravan Sites Control & Development Act 1960, which is one of the other regimes specified in section 191(7). That regime also makes it a requirement of the obtaining of the relevant site licence that planning permission is possessed.

23. In my judgment the scheme of the Acts is clear. The wording of section 191(2) is plain. It renders lawful, for limited purposes, uses and operations which are an offence under the Environmental Protection Act. I acknowledge the force of the points that the court when construing statutes should bear in mind the statements of high authority as to the construction of statutes where one construction involves advantages being obtained from criminal conduct. Plainly there are public policy arguments the other way in the present context in the light of the Carnwath report and the need for certainty and clarity in this branch of the law. In any event, section 191 is clear and the respondents were entitled to issue the certificate.

24. I would dismiss this appeal.

25. LORD JUSTICE CHADWICK: Section 191(1) of the Town and Country Planning Act 1990, as substituted by the Planning and Compensation Act 1991, enables a person who wishes to ascertain whether any existing use of buildings or other land is lawful to make application to the local planning authority for that purpose.

26. Section 191(4) of the act requires that, if on an application under the section the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use described in the application, they shall issue a certificate to that effect and, in any other case, they should refuse the application.

27. Section 191(7) provides that a certificate issued under section 191(4) (to which I may refer as "a certificate of existing lawful use") shall have effect for the purposes of three specified statutory provisions as if it were a grant of planning permission. Those three specified statutory provisions are: section 3(3) of the Caravan Sites and Control of Development Act 1960; section 5(2) of the Control of Pollution Act 1974; and its replacement section 36(2)(a) of the Environmental Protection Act 1990.

28. A feature common to those three statutes is that they each establish or continue a regulatory regime which prevents the occupier of land from using that land for the specified purpose unless he is the holder of a licence. For example, subsection 1(1) of the Caravan Sites and Control of Development Act 1960 prohibits an occupier of land from causing or permitting any part of the land to be used as a caravan site unless he is the holder of a site licence. Section 3(1)(c) of the Control of Pollution Act 1974 prohibited a person from depositing controlled waste on land unless the land was occupied by the holder of a licence (known as a "disposal licence") issued pursuant to section 5 of that Act. Section 3(3) of the Environmental Protection Act 1990 -which was not in force when section 191 of the Town and Country Planning Act 1990 was introduced by the Planning and Compensation Act 1991, but which came into force on 1st May 1994 by virtue of the Environment Protection Act 1990 (Commencement, No 15) Order 1994 - replaced, in substance, section 3(1) of the 1974 Act.

29. Further, the regulatory regime imposed by each of those statutes is underpinned by a criminal sanction. For example, section 1(2) of the Caravan Sites and Control of Development Act 1960 provides that an occupier of land who contravenes section 1(1) is guilty of an offence and liable, on summary conviction, to a fine. Section 3(2) of the Control of Pollution Act 1974 was in similar terms, save that the offender might also be liable to imprisonment if convicted on indictment. That provision is now replaced by section 33(6) and subsections (8) and (9) of the Environmental Protection Act 1990.

30. A third feature common to the three statutes is that no licence can be granted for the use that would otherwise be prohibited unless, at the time when the licence is issued, the applicant is entitled to the benefit of a planning permission in respect of that use on the relevant land. That restriction is imposed by the statutory provisions referred to in section 191(7) of the Town and Country Planning Act 1990 to which I have already referred; that is to say, section 3(3) of the 1960 Act, section 5(2) of the 1974 Act and section 36(2)(a) of the Environmental Protection Act 1990.

31. The use of land for purposes for which a licence is required under those regulatory statutes without planning consent (where required) will constitute a breach of planning control within the meaning of section 171(a)(1) of the Act of 1990. Accordingly, it will be a use in respect of which, prime facie, an enforcement notice could be issued by the local planning authority: see section 172 of that Act.

32. The issue of an enforcement notice constitutes the taking of enforcement action: see section 171A(2)(a) of that Act. But enforcement action in relation to breach of planning control in relation to the use of land, in this context, cannot be taken after the end of the period of ten years beginning with the date of the breach: see section 171B(3) of the Act. Prima facie, therefore, the use of land without planning permission for purposes regulated by the three statutes to which I have referred cannot be the subject of enforcement action under the Town and Country Planning Act 1990 if the land has been used for those purposes for ten years or more. It can, of course, still be the subject of a prosecution under the particular regulatory statute. And, prior to the enactment of the Planning and Compensation Act 1991, it would continue to be a breach of planning control; albeit a breach in respect of which no enforcement action could be taken.

33. It was the anomaly of a continuing breach in respect of which no enforcement action could be taken, as it seems to me, that gave rise to the concept of "unlawful but immune" to which reference is made in section 7 of chapter 7 - particularly at paragraph 3.4(v) and (vi) - of the Report "Enforcing Planning Control" made by Mr Robert Carnwath QC, as he then was. It is common ground - and, if it were not, it is beyond dispute - that it was that Report which gave rise to the amendments to Part 7 of the Town and Country Planning Act 1990 which were introduced by the Compensation and Planning Act 1991.

34. It was submitted before us, on behalf of the applicant, that, despite the plain terms of section 171B(3) of the Town and Country Planning Act 1990, enforcement action could be taken in relation to a use which, because carried out without a licence required by a regulatory statute - such as the Caravan Sites and Control and Development Act 1960 or the Control of Pollution Act 1974 - was necessarily illegal (in the sense that it constituted a criminal offence), notwithstanding that that use had continued for over ten years. It is said that that result follows from the fundamental principle - identified by the House of Lords in George Legge and Son Ltd v Wenlock Corporation [1938] AC 204 and in Beresford v Royal Insurance Company [1938] AC 586, and applied more recently by the Divisional Court in Regina v Chief National Insurance Commissioner, Ex parte O'Connor [1981] QB 758 and in Regina v Secretary of State for the Home Office, Ex parte Puttick [1981] QB 767 - that the law cannot be applied so as to enable a person to profit from his own crime.

35. For my part, I am not persuaded that that principle can have any application to a statutory provision such as that in section 171B(3) of the Town and Country Planning Act 1990. That subsection does not confer any right. What it does is to confer an immunity from a particular form of enforcement; that is to say, enforcement under the provisions of the planning legislation. The subsection confers no immunity against enforcement by prosecution under the relevant regulatory statute, which itself creates the offence. No authority has been cited to us in which the courts have recognised the principle relied upon in the context of a provision confirming immunity from enforcement under planning legislation. Properly understood, the two cases upon which the applicant relies, Glamorgan County Council v Carter [1963] 1 WLR 1 and Vaughan v Secretary of State for the Environment and Mid-Sussex District Council [1986] JPL 840, provide no support the submission that that principle has any application in that context.

36. With those considerations in mind, I return to section 191 of the Town and Country Planning Act 1990. I have referred to the requirement in section 191(4) - that the local planning authority shall issue a certificate of existing lawful use to an applicant who satisfies them of the lawfulness, at the time of the application, of the use in respect of which his application is made. Section 191(2) provides the criteria by which the lawfulness of the use must be judged for that purpose. It is in these terms:

For the purposes of this Act uses and operations are lawful at any time if-

(a)no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and

(b)they do not constitute a contravention of any of the requirements of any enforcement notice then in force."

37. There can be no doubt as to the meaning of that provision. Use is lawful if no enforcement action may be taken in respect of it. Section 171B(3) of the Act, to which I have already referred, describes the circumstances in which no enforcement action can be taken. The circumstances in the present case fall within section 171B(3) and so fall within section 191(2)(a). They are not taken out of those provisions by the fact that the activity in relation to which immunity from enforcement under the planning legislation is conferred may be illegal in the context of some other regulatory statute; for the reasons that I have sought to explain.

38. In those circumstances, it is necessary to ask whether public policy requires that a person who is carrying on an activity which is illegal in the context of some other regulatory statute is disentitled from making an application for a certificate of existing lawful use under section 191(1); or, if he is not, whether the local authority is entitled to refuse to give a certificate of existing lawful use under section 191(4).

39. Whatever might be the position in other contexts, it is to my mind clear beyond argument that activity which is illegal by reason of contravention of one or other of the regulatory statutes referred to in section 191(7) is not activity which (for that reason alone) prevents an application being made under section 191(1); or which prevents a local authority from fulfilling the duty imposed upon it by section 191(4). To hold otherwise would be contrary to the plain intention of Parliament when enacting section 191(7) of the Town and Country Planning Act 1990.

40. It is clear, in my view, that Parliament had in mind that in a case where (i) activity had been continuing which required a licence under one or other of the regulatory statutes described in section 191(7), but (ii) no licence could be issued because there was no planning consent in place, the process of obtaining a certificate of existing lawful use would remove that impediment to the issue of a licence. In other words, where the activity had been continuing for ten years and so was entitled to a certificate of existing lawful use, the way was to be open to an issue of a licence under the regulatory statutes. The impediment imposed by the anomalous concept "unlawful but immune" was to be removed.

41. It does not, of course, follow that the licence would necessarily be granted under the regulatory statute. That requires exercise of a different discretion by, perhaps, a different authority. But the position under section 191 of the Town and Country Planning Act 1990 is clear. There was no basis upon which a certificate of existing lawful use could be refused by the local planning authority.

42. For those reasons and for the reasons given by Pill LJ I, too, would dismiss this appeal.

43. LORD JUSTICE BUXTON: When a person makes an application under section 191 of the Town and Country Planning Act 1990 he seeks a ruling on the question, indeed the statute describes him as wishing to ascertain, whether a specific existing use of buildings or operations on land is or are "lawful". It is quite clear from the Act and from section 191(2) that it is concerned with, and only concerned with, lawfulness as described in section 191(2), that is to say whether the situation is that either the activity does not require planning permission, or the time for enforcement action has expired, or there is an enforcement notice in force; but the activity does not contravene that notice. If one of those conditions is fulfilled as a matter of fact, the local planning authority, under section 191, has no alternative but to issue a certificate of lawful existing use.

44. Mr Howard for the appellant accepted, indeed asserted, that that was so within the confines of section 191. However, he said that this case fell under a more general principle: that it was not open to the local planning authority to issue a certificate of lawful existing use in a case such as the present where the use upon which the application was based was rendered illegal, that is to say criminal, by the application of provisions other than those contained in the Planning Acts.

45. In my judgement, if that argument were to succeed it could only succeed by establishing that there is an overriding general rule that no planning consent can be given and no favourable planning decision can be made in respect of any activity which is illegal in the sense that I have just defined. That is because a certificate of lawful existing use, like a planning permission, validates the activity at which it is directed in planning terms. It was to cure uncertainty on that point in respect of existing uses, amongst other reasons, that section 191(7) of the Act assimilated, for certain particular purposes, certificates of lawful existing use to planning permissions. The provisions were passed in order to meet the difficulty identified in the report of Mr Carnwath QC, as he then was, to which my Lord has referred.

46 Mr Howard, perhaps understandably, shrank from accepting that there was any principle as broad as that which I have formulated. He said that a certificate of lawful existing use was different in this respect from what one might call an individual planning permission. The certificate by its terms, or by its conditions, depended on 10 years unlawful use as a pre-condition of its issue. A planning permission did not entail such use. Indeed, the applicant did not have to be using the land at all in order to obtain a planning permission. That distinction enabled the case of a certificate of lawful existing use, but not a planning permission, to be brought within the broadly stated proposition drawn from a number of authorities that a party should not benefit or be permitted to benefit from his own illegal acts. However, that analysis when applied to the terms and suppositions of section 191 breaks down, as my Lord Chadwick LJ has demonstrated. A planning authority that does not take enforcement action on planning grounds against an illegal use, a use that is illegal on other grounds, thus creating the condition precedent to the issuing of a certificate of lawful existing use, does not thereby confer a benefit on the applicant by reason of his illegal act. It merely refrains from preventing an activity on planning grounds: grounds that, if they were relied on, might have nothing at all to do with the element of illegality in the activity addressed.

47. Further, it seems to me impossible to say that the illegality of the activity in question has the effect of indefinitely extending the power to take enforcement action on planning grounds, that is limited in time by section 171(b)(3) of the 1990 Act. By the same token, the principle of not benefitting from illegality is not infringed by a planning authority being given discretionary power to grant planning permission on planning grounds even if the permitted activity was illegal under some other non-planning provision. The broad principle of not benefitting from a person's own illegal acts simply does not fit into the reality of what is being done when planning permission is granted or when a certificate of lawful existing use is granted on the basis of failure to take enforcement action over a period of 10 years; and, in particular, it does not fit, for the reasons that my Lords have given, into the particular case here, which is a case specifically addressed in section 191(7).

48. For those reasons, which I venture to append to those given by my Lords, with which I agree, I also would dismiss this appeal.

Order: Appeal dismissed. Respondents to have their costs of the appeal up to the 4th December, assessed at £1200. Thereafter the court considers it just and equitable that there should be an order against the Commission. The assessment of any contribution to those costs by Mr Philcox is deferred. Legal aid taxation of appellant's costs. Application to appeal to the House of Lords refused.

(Order does not form part of approved judgment)