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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Walton Ltd v Secretary Of State For Environment Transport & Anor [2000] EWCA Civ 189 (15 June 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/189.html
Cite as: [2000] EWCA Civ 189
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Case No: QBCOF1999/1067/C
CO/575/1999
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE RICH Q.C.
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 15th June 2000
LORD JUSTICE WARD
LORD JUSTICE SCHIEMANN
and
LORD JUSTICE MUMMERY
- - - - - - - - - - - - - - - - - - - - -
C. WALTON LTD. |
Appellant | |
- and - |
||
(1)
SECRETARY OF STATE FOR THE ENVIRONMENT TRANSPORT AND
THE REGIONS |
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)
---------------------------------
GREGORY STONE Q.C. & ANDREW FRASER-URQUHART (instructed by Marrons for the Appellant)
JEREMY MORGAN (instructed by Treasury Solicitor for the Respondent)
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE SCHIEMANN
1. The Secretary of State acting through his inspector heard an appeal pursuant to s.174 of the Town and Country Planning Act 1990 against two enforcement notices which had been issued by the local planning authority. The inspector upheld both, one in an amended form. His decision in respect of each of the notices was appealed on a number of grounds to the High Court. That appeal was dismissed by H.H. Judge Rich Q.C. sitting as an Additional judge of the Queen's Bench Division. Before us is an appeal relating simply to that part of his judgment which concerned the amended enforcement notice.
2. The enforcement notice was in respect of an erstwhile military airfield of some 262 acres which was no longer required by the military and was in private ownership. The site was part of a rural area. In 1973 a conditional planning permission was granted for the use of the site as "a motor vehicle proving ground". Thereafter there was a long history of various activities on various parts of the site, which activities fell outside that concept and which were regarded by the planning authority as undesirable. Broadly speaking what the planning authority were after was a situation in which the only driving of vehicles which took place on the site was that which had planning permission. The notice explained that vehicular activities were the source of noise and nuisance to local people and the Council was anxious to limit vehicular activities to those which were lawful - lawful in this context meaning activities which were not in breach of the planning legislation. Probably because of the past airfield use, a number of further permissions had been granted from time to time for various activities in various parts of the site. Further permissions might be granted in the future. Moreover, various permissions might be in existence by reason of a development order.
3. Faced with that situation, the Authority served an enforcement
notice in respect of the whole of this huge site the operative parts of which
read as follows in its amended form
3. BREACH OF PLANNING CONTROL
Without planning permission change of use of the land and buildings edged red
on the [plan attached to the notice] from motor vehicle proving ground to motor
vehicle proving ground and the driving of motor vehicles (including their
associated parking and storage) for purposes other than the proving and testing
of motor vehicles or pursuant to any other planning permission granted in
respect of the site, including any such permissions which were extant at the
date of issue of this notice.
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 unauthorised use is not suitable for
this location. In its deposit Harborough District Local Plan it describes the
site as being in an area where countryside policies apply and the existing
Structure Plan policies are inadequate to deal with the special conditions
prevailing at the site.
Since the acquisition of the site by the current owners in August 1983 the uses
on the site, including vehicular activities have in the Council's opinion gone
beyond what was permitted by the Secretary of State for the Environment on the
19th April 1973 when he determined a called-in planning application to change
the use of the site from airfield to proving ground for the testing of motor
cars and commercial vehicles.
Initially racing competitions, rallies and club events were held, followed by
custom days and company incentive or fun days. These were successfully
enforced against. More recently there is clear evidence of the site being used
for recreational purposes and media publicity involving the use of production
vehicles whose top speed and capabilities are already well known and well
established. Vehicular activities are the source of noise and nuisance to
local people and the Council is anxious to limit vehicular activities to those
which are lawful.
In June 1989 an Inspector had the opportunity to identify which of the multiple
uses involving motor vehicles fell within the scope of the 1973 consent. Of
the six different activities identified, the Inspector concluded that only
vehicle testing was within the scope of the consent and that company incentive
days, club events, driver selection, custom car shows and trade shows and
exhibitions were not covered by the consent. As indicated, these are
effectively covered by the existing Notices and the nature of the unauthorised
activities have now changed.
Within the scope of vehicle testing the Inspector identified the following
activities:
1. The testing by manufacturers of their prototype and production vehicles.
2. The testing by engineering firms, universities and research establishments
of vehicles and vehicle engines.
3. The private demonstration of new vehicles models to the manufacturer's own
personnel-including test drivers-or to the motoring press.
Although the Inspector did not seek to provide a definitive definition of a
proving ground or lawful activities thereon, his approach and conclusions
appear reasonable.
Vehicles may use the site in connection with other permissions (i.e. car
storage) but the Council is anxious to minimise engine noise and other noise
arising from the operation of vehicles which is taking place beyond the scope
of the 1973 permission.
The Council do not consider that planning permission should be given because
conditions could not overcome these problems.
5. WHAT YOU ARE REQUIRED TO DO
(i) To cease using the site shown edged red on the [plan attached to the
notice] for the driving of motor vehicles (including their associated parking
and storage) for purposes other than the proving and testing of motor vehicles
or pursuant to any other planning permission granted in respect of the site,
including any such permissions which were extant at the date of issue of this
notice; and
(ii) To remove from the site edged red on the [plan attached to the notice]
all motor vehicles as are not on site for proving or testing purposes or
pursuant to any other planning permission granted in respect of the site,
including any such permissions which were extant at the date of issue of this
notice.
For the avoidance of doubt a motor vehicle on site for the purpose of "proving
and testing" shall mean a motor vehicle or any of its parts which is
undergoing a critical examination for scientific or engineering purposes
which will lead to the development of the motor vehicle as a prototype or
commercially produced vehicle, of the testing of the motor vehicle or its
parts for the purpose of academic research or investigation with a view to
increasing knowledge regarding vehicle development or otherwise promoting
human knowledge or the testing of new motor vehicles for the purpose of
ascertaining the capabilities of such vehicle but which shall not include
tests for comparison purposes with the performance and capabilities of other
motor vehicles.
TIME FOR COMPLIANCE
Three months after this notice takes effect
4. A grammarian would not be happy with some of the phrasing but no
point was taken on that. The substance of Mr Gregory Stone Q.C.'s submissions
is that the Local Planning Authority was not empowered by the Act to issue a
notice in that form and that this notice in its amended from is therefore
invalid. It is convenient to set out the relevant provisions of the Act before
turning to his submissions.
THE STATUTORY FRAMEWORK
S. 172 (1) The Local Planning Authority may issue a notice (....an "Enforcement
Notice") where it appears to them -
(a) that there has been a breach of planning control; and
(b) that it is expedient to issue the notice.....
S. 171A (1) For the purposes of this Act -
(a) carrying out development without the required planning permission
............ constitutes a breach of planning control.
S. 55 (1) ............ "Development" means ........ the making of any
material change in the use of ..... land.
S. 173 (1) An Enforcement Notice shall state -
(a) the matters which appear to the Local Planning Authority to constitute
the breach of planning control;.....
(2) A Notice complies with subsection (1)(a) if it enables any person on whom
a copy of it is served to know what those matters are.
(3) an Enforcement Notice shall specify the steps which the authority require
to be taken, or the activities which the authority requires 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.
S. 179(1) 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.
(2) Where the owner of the land is in breach of an Enforcement Notice he shall
be guilty of an offence.
S. 174(1) A person having an interest in the land to which an enforcement
notice relates..... may appeal to the Secretary of State against the
Notice.....
(2) An appeal may be brought on any of the following grounds -
(a) that, in respect of any breach of planning control which may be
constituted by the matters stated in the Notice, planning permission ought to
be granted....;
(b) that those matters have not occurred;
(c) that those matters (if they occurred) do not constitute a breach of
planning control;
....
(f) that..... 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......
S. 177(1) On the determination of an appeal under section 174, the Secretary of
State may-
(a) grant planning permission in respect of the matters stated in the
enforcement notice as constituting the breach of planning control, whether in
relation to the whole or any part of those matters or in relation to the whole
or any part of the land to which the notice relates.
........
(5) Where an appeal against an enforcement notice is brought under section 174,
the appellant shall be deemed to have made an application for planning
permission in respect of the matters stated in the enforcement notice as
constituting the breach of planning control.
Section 289 provides for an appeal to the High Court on a point of law.
THE POINTS AT ISSUE
5. The Notice of Appeal asserts in its first ground that the terms of
the Enforcement Notice were not such as allowed the appellant to ascertain what
action it was being required to instigate by way of remedy and therefore did
not comply with s.173(3). It is indeed of great importance that Enforcement
Notices which bind subsequent owners and occupiers of the land who may know
little of the history should make clear what has to be done or not done in
order to avoid committing a crime. However, as Mr Stone accepted in argument,
the present notice does make clear what is required to cease. This point
therefore does not arise on the present facts.
6. The Notice of Appeal also asserts in its first ground that the
terms of the Enforcement Notice were not such as to allow the appellant to
ascertain what it had done wrong and that it therefore did not comply with
s.173(1). Mr Stone submitted that the specification of what appeared to the
planning authority to constitute a breach of planning control was important
because unless this is clearly done (i) an appellant will not be able to make a
sensible judgment as to which of the grounds of appeal set out in s. 174(2) he
should advance and what his evidence should be in relation to those grounds and
(ii) the limits of the Secretary of State's powers and duties under s.177(1)(a)
as to the grant of planning permission were not clear. He submitted, in effect,
that all that the notice did by way of telling the appellants what they had
done wrong was to tell them that they had acted in breach of planning control
and that this was not good enough.
7. The purpose of a description of the breach of planning control is
primarily to enable the appellant to decide what steps to take in relation to
an appeal to the Secretary of State. In the present case it seems to me clear
from the notice that what the authority objected to was the presence of
vehicles on the site save in so far as those vehicles were on the site in
connection with an activity which itself was sanctioned by a planning
permission. That permission might either relate specifically to the vehicles in
question, e.g. driving and testing the vehicles for the purpose of ascertaining
the capabilities of that vehicle, or to something else, e.g. driving a domestic
vehicle to the site in order that the driver or passenger in that domestic
vehicle might start his job on the site, say, driving and testing vehicles for
the purpose of ascertaining their capabilities. The domestic vehicle driving in
such circumstances would be an activity ancillary to another activity which had
express planning permission and would therefore not be in breach of the
enforcement notice.
8. In my judgment, the enforcement notice when looked at as a whole
enables the person on whom a copy of it is served to know what matters the
authority considered constitute a breach of planning control. There is quite
enough there to enable him to decide upon his strategy as to appealing to the
Secretary of State. There is enough there to enable him to decide whether or
not to ask that planning permission ought to be granted for driving in
connection with, say, a temporary car boot sale. There is enough there to
enable the Secretary of State to decide whether or not to grant planning
permission either for driving for any purpose whatsoever or for some limited
purposes.
9. The second ground of appeal covers much the same ground. It makes
the point that there are a large number of permitted activities on various
parts of the site most of which require driving in connection with them. It
suggests that the notice went too far in as much as, so it was submitted, it
required the cessation of driving activities which were merely ancillary to
permitted activities.
10. In so far as there are permitted activities in relation to the
whole of the site there is no problem-driving ancillary to that
permitted activity is also permitted save in so far as it is expressly
prohibited by condition. The whole concept of "ancillary" activities has
evolved in this branch of the law in order to cope with the fact of life that
often the carrying out of activity "x" will involve the carrying out on the
site of activity "y" as a reasonably incidental part of activity "x". In such
circumstances, the grant of permission for activity "x" is deemed to include
permission to carry out activity "y" as an ancillary activity. If the planning
authority wish to prevent the carrying out of activity "y" on the site that is
best achieved by the imposition on the permission for activity "x" of a
condition to the effect that activity "y" is prohibited.
11. It should be noted that where one has, say, a 200 acre site and
permission is granted for activity "x" on 50 acres out of the 200 that
permission does not imply a permission to do anything on the remaining 150
acres in the same ownership. A grant of permission can only cover the land
referred to in that permission.
12. During the course of his submissions Mr Gregory Stone Q.C. made the
point that enforcement notices should not be issued unless it is expedient to
do so and that it will not always be expedient to do so where there has been a
breach of planning control. I agree that this follows from the terms of
s.172(1). He then submitted that, by issuing an enforcement notice which forbad
all driving save that which was permitted, a certain amount of driving was
prohibited which, whilst it would be in breach of planning control, would
nonetheless not be so offensive as to make it expedient to issue an enforcement
notice in respect of it. I accept that as an abstract proposition. However, on
the facts of this case I do not consider that the authority made any error of
law in coming to the conclusion that it was expedient to issue a notice which
had the effect of prohibiting all driving which was in breach of planning
control. If this inhibited the carrying out of any inoffensive driving which
the appellant wished to carry out then he should have specified it and the
matter could have been dealt with either by an appropriate grant of planning
permission or by a suitable modification of the enforcement notice.
13. The foregoing reasoning also disposes of the third ground of
appeal which was that "the terms of the ... notice made it impossible to
identify the activities prohibited thereby and so rendered impossible
appropriate consideration of the normal planning considerations which would
inform a decision whether or not to grant planning permission for such
activities". Mr Stone submitted that the inspector in framing the notice in
such a way as to prohibit any driving unless it did not involve a breach of
planning control was not giving specific consideration to any particular
activity which might involve driving as an ancillary activity. That I would
accept as a fact but not as a criticism either of the enforcement notice or of
the inspector. It may well be that there could be an activity on the site which
requires, and does not have, planning permission which might involve some
ancillary driving and which would be unobjectionable from a planning point of
view. However the proper way for the appellant way to secure a situation in
which he can carry out such an activity and any ancillary driving is to apply
for planning permission for that activity. It seems to me quite inappropriate
to consider the ancillary driving without having in mind a specific activity to
which the driving is ancillary. It would be wrong to impose a requirement on
the framers of enforcement notices to frame them in such a way that there is a
notional planning application for a number of activities ancillary to a
non-specified master activity.
14. Finally, Mr Stone placed some reliance on The European Convention
on Human Rights and in particular on the First Protocol. He had of course to
face the initial difficulty that the relevant provisions of the Human Rights
Act 1998 are not yet in force. But even if they were, as it seems to me they
would not help him if I am right as to my judgment as to the position under the
Planning Act. The argument under this head was substantially premised on the
assumption that the appeal would succeed on other grounds. Since I do not
accept the premise, it is not in my judgment necessary to lengthen this
judgment by considering the matter further. I would dismiss this appeal.
LORD JUSTICE MUMMERY: I agree
LORD JUSTICE WARD: I also agree
(Order does not form part of the approved judgment)