England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
RICHARDS J
[2003] EWHC 2003 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th October 2004

Lord Justice Carnwath:

Background

1. Honeycrock Farm was originally an agricultural holding extending to some 200 acres, near Redhill, Surrey. The only part with which we are now directly concerned is the farmyard and buildings, within an area described on the plan before us as Planning Unit C. Mr Fidler's ownership also includes the site of two small buildings (buildings 1 and 2) in the south-west (Planning Unit A) and an area of agricultural land to the north (Planning Unit B).
2. Planning Unit C comprises two groups of buildings (some smaller buildings Nos 3-7 on the west side; and two larger linked buildings Nos 9-10 on the east); and two linked open areas, described as the "Northern yard" (between the two groups of buildings) and the "Southern yard" (south of buildings 3 to 7). It is common ground that this area was correctly treated by the inspector as having become a single planning unit for planning purposes by 2001, when the current round of enforcement action began. I shall refer to it as "the site".
3. The appeal raises issues concerning an enforcement notice served by the council on 4^th February 2002 ("Notice I"), requiring the cessation of specified business uses within the site. There are two live issues before us, described in argument as "the material change of use" issue, and the "deemed planning permission" issue.

History of Use

4. The Inspector made a careful and comprehensive assessment of the history of the use since Mr Fidler's first involvement in the 1970s. The following are the main points.
5. Mr Fidler had started renting agricultural land and some space in the buildings from the previous owner, Mr Widdowson, in the early 1970s. He acquired his present holding in 1985. Mr Fidler himself was carrying on agricultural uses, in addition to hay and straw dealing and agricultural and general contracting from the northern yard. The northern yard was also used by others for open storage for various haulage and contracting businesses and as workshops of different types. A "dutch barn type" of building was erected by Mr Fidler on the site of unit 10 in 1981.
6. When Mr Fidler acquired the site in 1985, there was at that time, as the inspector found –

"… a variety of uses, including soil screening, both civil engineering and demolition contractors bases, workshops for vehicle and farm machinery repairs, a haulage depot plus a repair workshop for the vehicles, a fencing contractor and a welder/repairer of plant and equipment. There was also storage, both in the building (unit 10) and in the open of such things as building materials and aircraft and helicopter parts… The appellant also used the land and buildings for his own operations including agriculture and uses ancillary to it, hay and straw dealing, agricultural contracting, for a building and demolition contractor's depot and store and repairer of commercial vehicles and helicopters…" (para 65)

7. In 1991 (taken by the Inspector as the starting point of the 10 year period required to show lawful use), the non-agricultural uses were principally confined to the northern yard, which he regarded as having been at that time a separate planning unit from the southern yard (para 70). He considered the changes since the start of 1991. The main points which emerge from his account are:

i) In 1990 Mr Fidler lost his tenancy of the agricultural land to the north of the appeal site, and began to diversify his use of the buildings on the site. This led to the introduction of a number of commercial users into the buildings in the southern part of the site, with the result that there soon became a mixed use of the southern yard as well as the northern one. By 1994 at the latest, the northern and southern yards, and the related buildings, had become part of one planning unit with a mixed use (para 75).

ii) In mid-1991 unit 9 was erected as an extension to unit 10 at the same time as some refurbishment of unit 10 itself. Some additional land (about 0.1ha) was taken into the planning unit for that purpose.

iii) In 1995 another area immediately to the north of unit 9 (about 0.16ha), previously in agricultural use, was taken into the planning unit, and was used for commercial purposes in the form of storage and parking of vehicles and machinery. The Inspector commented that this resulted in the northern planning unit (as it had existed in 1991) being extended from 0.51ha to 0.77ha, an increase of just over 50% (para 77).

iv) Major alterations were carried out in 1998 to units 9 and 10. Before those changes the buildings had been, in the Inspector's description, "like a typical large dutch barn with a roof and minimal cladding to the two outside walls of corrugated sheeting" (para 81). He described the alterations:-

"New cladding was put on the outside of any existing old cladding on the elevations and inside, block work walls were added up to roof height in many parts; many internal block work partition walls were built to create various sized areas, and in a number of places a first floor was added and a number of windows were made at that level in the outside walls. Some new roofing sheets were added…" (para 82).

v) As to the uses of the site, the Inspector commented:-

"Uses have remained fairly constant over the 10-year period, being a mixture of uses falling within classes B1, B2 and B8 of the Use Classes Order (i.e. business use, general industrial use and storage or distribution use) plus a number of uses not falling within a use class. These have been fairly similar in type and were generally use as a haulage depot with ancillary repairs and storage; use as a demolition contractor's depot with ancillary storage and repairs; a building contractor with ancillary storage and workshop; soil screening (up to 1997 only). The level of use and the amount of the site taken up by one activity/use compared to another varied as did the number of people and companies involved in some of the activities/uses". (para 84)

Statutory provisions

8. "Development", for the purposes of the Town and Country Planning Act 1990 (the 1990 Act), includes the carrying out of building operations on land, and the making of any material change in the use of any buildings or other land (s 55(2)). However, use of buildings or other land for any other purpose of the same class under the Use Classes Order (Town and Country Planning (Use Classes) Order 1987) is taken not to be development (s 55(2)(f)) The classes arguably relevant to this case are classes B1 (business), B2 (general industrial) and B8 (storage or distribution). Planning permission is required for the carrying out of any development of land (s 57). Planning permission may be granted prospectively (s 70) or retrospectively (s 73A). Carrying out development without permission is a "breach of planning control" (s 171A(1)).
9. Part VII deals with enforcement against breaches of planning control. These provisions were substantially recast in 1991, following a Department of the Environment report "Enforcing Planning Control" (Feb 1989) ("The 1989 Report"). (Although I was the author of that report, and therefore indirectly involved in the legislative process, neither party has raised any objection to my sitting on this appeal. I would not in any event regard involvement in a non-political report of that kind as any grounds for disqualification, under the principles now settled by the House of Lords: see Davidson v Scottish Ministers [2004] UKHL 34).
10. Time limits for enforcement action are contained in s.171B. There is a 4 year limit for breaches consisting of operational development, or change to use as a single dwellinghouse (s 171B(1)(2)). Otherwise there is a 10 year limit, under section 171B(3), which provides:

"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." (s 171B(3))

The latter limit is subject to the "second bite" provision, whereby a further notice may be served within 4 years of a notice dealing with the same breach (s 171B(4)). (It is unnecessary to set this out, as there is no appeal in respect of this aspect of the Judge's decision.)

11. General provisions governing the issue of an enforcement notice and the contents of a notice are contained in ss.172 and 173. In particular, the notice must state "the matters" which appear to the local authority to constitute the breach of planning control (s 173(1)). It must also specify –

"… the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes." (s 173(3)"

The purposes, as defined, include -

"(a)… remedying the breach…by discontinuing any use of land or by restoring the land to its condition before the breach took place; or

(b) remedying any injury to amenity which has been caused by the breach." (s 173(4)

Examples are given of possible requirements (s 173(5)), including "(a) the alteration or removal of any buildings or works"; and "(c) any activity on the land not to be carried out except to the extent specified in the notice". (I will set out section 173(11), when dealing with the "deemed planning permission" issue, to which it is relevant.)

12. The right of appeal to the Secretary of State against an enforcement notice is governed by s.174. Pending the determination of the appeal the enforcement notice is of no effect (s 176(4)). The grounds on which an appeal may be brought include:

"(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;

…

(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.

…

(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach."

On an appeal the Secretary of State may correct any defect, error or misdescription in the enforcement notice, or vary the terms of the enforcement notice, "if he is satisfied that the correction or variation will not cause injustice to the appellant or the local planning authority" (s.176(1)). Failure to take a step required by an effective notice, or carrying on an activity prohibited by the notice, is a criminal offence (s 179).

13. Applications for a certificate of lawful use or development are governed by section.191, and a right of appeal to the Secretary of State is given by section 195. The purpose of these provisions is to provide a procedure by which the lawfulness of current operations or uses on land can be certified by the authority. Appeal H related to such an application. The principal purpose was to obtain confirmation of Mr Fidler's view of the scope of the "deemed planning permission" said to arise by virtue of the 1995 enforcement notice. No separate issue arises on the detail of this procedure.

Legal principles

14. The following principles, as stated by Mr Mould for the Secretary of State (by reference to cases such as East Barnet UDC v British Transport Commission [1962] 2 QB 484; Burdle v Secretary of State [1972] 3 All ER 240; Brooks & Burton Ltd v Secretary of State [1978] 1 All ER 733; Westminster City Council v British Waterways Board [1985] 1 AC 676) were not in dispute:

i) The orthodox approach is for the decision maker to identify the appropriate "planning unit" to be considered for the purpose of deciding whether or not there has been a material change in the use of land;

ii) The appropriate planning unit may embrace an area of occupation within which a variety of activities are carried on and comprise a composite or mixed use, where the individual components may fluctuate in their intensity from time to time, but are not confined within separate and physically distinct areas of land;

iii) Whether or not there has been a material change in the use of land is to be considered by reference to the character of the use or uses to which the land is put. A material change in the character of the use of land is capable of resulting, wholly or in part, from changes in the intensity of the use or uses of or activities carried out on land. Such changes may be material for planning purposes even though the generic use or uses of the land in question have not changed;

iv) Whether the use of land has changed in any manner that is material for planning purposes is a question of fact and degree for the decision maker to determine in the light of all the circumstances of the case.

Procedural history in this case

15. The procedural history is complex, but fortunately it can be simplified for present purposes.
16. In December 1995 the council had served an enforcement notice alleging a material change of use to a mixed use including "an engineering contractor's depot". An appeal was lodged against this notice, but was withdrawn at the subsequent inquiry in 1997 (also concerned with another later enforcement notice relating to construction of an access). Although the plan attached to the notice included the whole of Mr Fidler's occupation, it was made clear at the inquiry by the council that the "engineering contractor's depot" to which it referred was the area to the north of unit 9, which had been used for a short period by the contractor McNicholas (a cable laying contractor). The 1997 inspector recorded the withdrawal of the appeal commenting:

"… the Council confirmed that the actual and intended scope of the first enforcement notice had been against engineering contractors' depot use, and not against any other uses at Honeycrock Farm. Your client stated that this use had ceased…."

17. Between January and March 2001 the Council served a number of enforcement notices, referred to as Notices A to G. In response, Mr Fidler applied on 22 January 2001 for a certificate of lawful existing use ("CLEU") in relation to the current uses of the site. He appealed against all the enforcement notices, and against the council's failure to determine the CLEU application (referred to as Appeal H). A planning inspector, Mr DE Morden, was appointed to determine all the appeals. He held an inquiry which opened on 22 January 2002. It was then adjourned to enable the inspector to make preliminary findings on legal issues. The preliminary findings were issued on 26 February 2002 and included findings that three of the Notices (B, D and E) were invalid and could not be corrected.
18. Meanwhile the council had issued a further enforcement notice (Notice I) on 4 February 2002, again alleging, though in different terms, a material change of use of the site, and an appeal was lodged against that notice. The resumed inquiry in relation to all the appeals was held in May 2002. The inspector's decision letter was issued on 17 December 2002.
19. He allowed the appeals in relation to Notices B, C, D, E, F and G. There is no outstanding issue on those notices. That left the following matters:

i) Notice A, relating to buildings 9 and 10, was confirmed in terms requiring demolition of everything except the "original steel frame and original parts of the roof";

ii) The CLEU application (Appeal H) was dismissed;

iii) Notice I was confirmed in terms in effect requiring cessation of all the existing uses of the site, with certain specified exceptions.

20. Before confirming Notice I the Inspector amended the description of uses. As drafted by the council, the allegation read:

"Without planning permission, change of use of the land to a mixed use for Class B1, B2 and B8 uses, agriculture, hay and straw dealing, haulage depot and building and demolition contractor's depot."

The Inspector had commented that it was not correct for a notice alleging a mixed use to refer only to use classes. In response the Council suggested a revised wording which, with minor alterations, was adopted by the Inspector. Accordingly, in the notice as confirmed the allegation read:

"Without planning permission, change of use of the land to a mixed use consisting of agriculture, agricultural contracting, hay and straw dealing, storage (including the storage of helicopters), a vehicle haulage operator's depot, a building and demolition contractor's depot, motor vehicle servicing and repairs (including jet skis), courier business involving storage and distribution and a carpentry business." [DL 168].

The effect of the notices was that all uses were required to cease, with the exception of the uses for agriculture, agricultural contracting, and hay and straw dealing, which the Council accepted as lawful.

21. The Inspector's decisions on these three matters were challenged on a number of legal grounds by proceedings under sections 288 and 289 of the Town and Country Planning Act 1990. Judgment was given by Richards J on 1^st October 2003. Mr Fidler succeeded on one issue only ("the second bite issue"). The inspector had erred in treating Notice I as a "second bite" notice (under s 171B(4)(b) of the 1990 Act) which could thus be treated as served on the same date as the earlier notices. The effect of this was that the 10 year period required to establish immunity from enforcement under that notice should have been treated as running from 4^th February 1992, not 7^th March 1991 (the date used by the inspector by reference to the date of service of the earlier notices.) The judge accepted that it was possible (though unlikely) that this might have affected the result, and accordingly remitted the appeal in respect of Notice I for redetermination. It was common ground that in these circumstances the appeal on notice A should also be remitted for redetermination, on the basis that the planning arguments in favour of retention of units 9 and 10 might be affected by success on the Notice I appeal.

First issue - Material change of use

Inspector's conclusions

22. Under the heading "Assessment of changes since 1991" (para 86-93), the Inspector set out the factual conclusions relevant to the main legal issues. He considered the correct approach to be to take the unit "as it existed in March 1991" and to consider "all the physical changes since then as well as the changes in uses and occupiers". He noted that the area used for the various uses had increased by 50% from March 1991; that "in terms of appearance" open storage had extended north of the buildings resulting in "a far larger area of open storage"; and that the size of the main building area "was basically doubled" by the erection of unit 9 in 1991, used generally for non-agricultural purposes.
23. In 1998, the structure of units 9 and 10 "was virtually rebuilt", and, in the Inspector's view "changed totally in character in my view, particularly in how it could be used":

"88. … What had been basically a 'Dutch barn' with open ends and some corrugated sheeting on the two side elevations of a plain steel framework was turned into a purpose built industrial type building (despite the corrugated cladding on the outside which can also be found on a modern agricultural building) with block work walls and partitions, including some first floor sections, and much of it with a proper concrete floor.

89. The changes in the type of space offered for rent after the 1998 alterations, in my view, facilitated a change in the type of use there. It changed from a basically 'open' covered area under the roof of units 9 and 10, used for the storage of vehicles and other items which could be stored outside just as easily as inside, plus some industrial type activities including repairs to large vehicles, to one that provided secure, weatherproof storage on a large scale that would not have been possible in the old units 9 and 10.

90. Further, it has resulted in the occupation by 2 companies specialising in the delivery of parcels which have more vehicles and staff on site than most and the establishment of a company providing the equipment for and running corporate games events which also has many staff and vehicles on site …. It was not disputed that these three occupiers had a higher generation of traffic to and from the site than others nor was the answer … that there had been more than a doubling of traffic movements at the site in the three years 1999 to 2002 …. This has also resulted, in my view, in a materially different character of use at the site…."

24. He acknowledged that the number of occupiers had remained fairly constant over the period; that the various uses undertaken by those occupiers had not, in principle, been different "in terms of the number of uses that have been taking place at any one time and the general description of what they did"; and that, although some uses had commenced during the 1990s, "the sorts of vehicles, materials and equipment stored at the site by them was not that different to other existing occupants …" (paras 91-2). However, the situation changed after 1998 when the major building alterations were carried out:

"Lamerack (the corporate games company) came in September 1998 and two other companies, who ran courier services amongst their uses, came in October 2000 and January 2001. These three users according to the evidence are responsible for most of the vehicles, staff and traffic movements and they were, in my opinion, a materially different type of activity on the site to what had been there in 1991 even though the first is probably a Class B1 use and the other two are B8 uses, of which there were some on the site throughout the whole 10 year period." (para 93)

25. In paragraphs 94 to 100, he expressed his conclusions on the central issue whether there had been a material change in use since 1991:

"94. In my view, there were fundamental changes at the appeal site between March 1991 and March 2001. These were the increase in the land area covered by the use; the increase in building mass and, therefore, the consequent increase in the amount of usable covered floor space; the large increase in the area of outside storage; the virtual rebuilding of units 9 and 10 almost as purpose built commercial buildings; the nature of the more recent occupiers of the site, in particular, of the buildings, and also the level of traffic associated with the various uses and occupiers of the site particularly the more recent tenants."

26. He summarised the various changes over that period, and concluded:

"99. Whilst I accept that it might not be possible to say that any one of these changes by itself resulted in the material change in the use of the site, I consider, as a matter of fact and degree, that the use at 7 March 2001 was materially different to that which had existed on 7 March 1991. It was not just a more intensive use of the site but one where the activities making up the uses, the land area used; the extent of storage, both inside and outside; the buildings in which the uses were being undertaken and the level of traffic generated, if all taken together, describe a use that is materially different in character and nature.

100. I conclude, on the basis of the evidence that was put before me, that those changes were so significant that the mixed use there at the time the Notice was issued had, by its very different nature and character, come about through a material change of use from the use which had been there on 7 March 1991."

Grounds of appeal on first issue

27. Under this heading Mr Clay, on behalf of Mr Fidler, advances five points:-

i) The Inspector asked the wrong question. He should have asked whether the use at the beginning of the ten-year period could properly be described as something different from the use described in the enforcement notice, rather than considering whether the character of the use had changed within that description;

ii) He was wrong to consider that the extension of a use to adjacent land could result in a material change of use of the original land;

iii) He was wrong to base his conclusion on intensification, that issue not having been alleged in the notice or raised at the inquiry;

iv) He should have considered the effect of the Use Classes Order on the various activities, even though they were components of a mixed use;

v) Whether or not the works to units 9 and 10 amounted to the erection of a new building, the inspector was wrong to treat that as relevant to the question of material change of use.

28. I hope I will be forgiven for dealing with these points relatively shortly, since in substance I agree with the Judge, who dealt with them in considerable detail. Taking them in turn:-

i) It is quite clear from principle (iii) (see para 14 above) that there may be a material change of use, resulting from changes in intensity which affects the overall character of the use, even though the descriptions of the uses do not change. The inspector was not limited to considering whether the generic descriptions of the uses in 1991 differed from those stated in the enforcement notice. He correctly considered whether there had been a change in the character of the use. That was classically a matter of "fact and degree" for his judgment, and gives rise to no issue of law.

ii) Similarly, whether the extension of an existing use on to other land results in the creation of a new planning unit, and a material change in the unit considered overall, is a matter of fact and degree. I see no error of law in the inspector's approach. The fact that part of the new planning unit may have been used for the same purpose for more than ten years does not undermine that conclusion, although it may be relevant in defining the requirements of the notice. I shall return to that issue.

iii) The Inspector did not rely on "intensification" as a separate legal test in law. As he said, this was not "just a more intensive use of the site but one where the activities… describe a use that is materially different in character and nature" (para 99). Nor was it necessary for "intensification" to be referred to in the notice. Fairness simply required the nature of the council's case to be made clear, as was done, in order to enable Mr Fidler to answer it at the inquiry.

iv) The Inspector was right to hold that the Use Classes Order was of no assistance to Mr Fidler. Mr Clay submitted that -

"… a mixed use is composed of a number of identifiable uses and each one of those component uses, provided it falls within one of the identified Use Classes is entitled to the benefit of section 55(2)(f)".

He cited no authority in support for this proposition and in my view it is contrary to the clear effect of the section. Application of section 55(2)(f) depends on the identification of "buildings or other land" used for a purpose of "any class specified" in the Use Classes Order. In the present case the relevant land was not used for a purpose specified in any class, but was used for a mixture of purposes. There is no "mixed use" class. I agree with Richards J, when he said (relying on his own decision in a recent case, Belmont Riding Centre v First Secretary of State [2003] EWHC 1895 (Admin)):

"The use classes order has no application to a mixed use: the mixed use does not itself fall within any class and a finding of material change of use is not avoided simply by showing that a component falling within a particular class has been substituted for another component falling within the same class." (Judgment para 80).

v) It is of course correct that the erection of a building as such may not give rise to a material change of use of the planning unit on which it is erected. On the other hand, as a matter of both common sense and law, the character of the activities on a site may be materially affected by the nature of the buildings on the site, as the Inspector found in this case. Again that was a matter of fact and degree for him.

29. Before leaving this issue, I should mention one other case relied on by Mr Clay, particularly on point (iii): Kensington and Chelsea RBC v Secretary of State and Mia Carla Ltd [1981] JPL 50. That case concerned the extension of a London restaurant from the building into the garden. The council complained that, in quashing the enforcement notice, the inspector had failed to take account of the possibility a material change by "intensification". It was held by the Divisional Court that, under the powers of amendment then available, it would not have been open to the inspector to incorporate such an allegation in the notice. In the course of his judgment Donaldson LJ criticised the use of the term "intensification" and added:-

"If the planners were incapable of formulating what was use after intensification and what was use before intensification then there had been no material change of use."

30. I do not question the correctness of that decision on its own facts, and under the limited powers of amendment then available. However, I would suggest considerable caution before applying statements from pre-1991 cases to the new statutory regime, one of the purposes of which was to give -

"… a clear signal to the courts and others that the more legalistic features of current case-law and practice can be abandoned." (1989 report p 73)

In any event, on the facts of the present case, I have no doubt that it was open to the Inspector to find that there had been a material change in the character of the use of the site, for the reasons he gave, without needing to formulate different "before and after" descriptions of the mixed use.

31. In conclusion on this issue, I see no grounds for criticism in principle of the Inspector's conclusions or the Judge's rejection of the appeal on this ground. As has been emphasised many times in the courts, an over-technical and analytical approach to enforcement notices in such cases is inimical to the interests of justice. The inspector was fully entitled to hold that there had been a substantial change in the character of the use during the ten years, particularly following the major changes to units 9 and 10 in 1998. That case was fully ventilated and examined at the inquiry and there was no injustice in the inspector's conclusions.

Second issue - Deemed planning permission

32. The answer to this issue depends on the interpretation of section 173(11) of the 1990 Act:

"(11) Where -

(a) an enforcement notice in respect of any breach of planning control could have required any buildings or works to be removed or any activity to cease, but does not do so; and

(b) all the requirements of the notice have been complied with,

then, so far as the notice did not so require, planning permission shall be treated as having been granted by virtue of section 73A in respect of development consisting of the construction of the buildings or works or, as the case may be, the carrying out of the activities."

33. As has been seen, the Council took enforcement action in 1995 against the McNicholas use, but not against other activities on the site. The terms of the notice are significant. The breach of planning control alleged was:

"Without planning permission, change of use of the said land from use for agriculture to a mixed use for agriculture and an engineering contractors' depot involving the storage of plant, equipment, materials, vehicles, portable buildings and machinery".

The requirement of the notice was expressed thus:

"(i) Cease the use of the land for an engineering contractors' depot. …

(ii) Remove from the land all plant, equipment, materials, vehicles, portable buildings and machinery used or stored in connection with the use of the land as an engineering contractors' depot …."

34. Mr Clay submits that this was a case of deliberate "under-enforcement" for which section 173(11) was designed. There is no doubt that the Council was aware of the range of activities on the site by that time. Indeed, one of their witnesses at the 1997 inquiry referred to a visit in 1992, where she had seen various non-agricultural activities, "such as motor vehicle repairs, the storage of coaches, lorry containers, soil screening and parts of aircraft…" Although the Council could have taken enforcement action in respect of these uses, the enforcement notice was deliberately confined to the McNicholas use. Accordingly, says Mr Clay, planning permission is deemed to have been granted for those other activities.
35. The Judge rejected this submission. He considered that the sub-section only applied to activities included in the description of the breach in the notice. Even if the Council was aware of other non-agricultural activities on the site, they were not referred to in the notice, which mentioned only "a mixed use for agriculture and an engineering contractors' depot" (accepted by both parties as a reference only to the McNicholas use).
36. On this point, Richards J considered himself bound by the decision of this Court in Scott v. Secretary of State for the Environment (16 October 2000; apparently unreported, even though the first instance judgment was reported at [2000] JPL 833). That case concerned an enforcement notice relating to the tipping of large quantities of inert waste in a valley. One argument was that a culvert, which had been constructed to take a stream through the waste, and which was not mentioned in the notice, should be treated as having permission by virtue of section 173(11), and that the inspector had erred in failing to take that into account in considering the overall planning merits of the case. That argument was rejected. The court accepted the inspector's view that section 173(11) only applied to works mentioned in the enforcement notice as constituting the breach. Schiemann LJ said:

"… The enforcement notice manifestly did not allege that construction of the culvert had been carried out in breach of planning control. In those circumstances the enforcement notice could not have required the removal of the culvert. In those circumstances section 173(11) is not in play and there is no question of any deemed planning permission for the culvert …"

37. Mr Clay has sought to distinguish Scott, which concerned very different facts. He has also sought support in the terms of a Departmental Circular, 10/97, which states:

"Section 173(11), as amended, corresponds substantially to the previous section 173(8) of the 1990 Act, except that after full compliance with the requirements of the enforcement notice, the provisions apply to any remaining uses or activities on the land, and any remaining buildings or works. It deals with the situation where 'under enforcement' has occurred, by providing that planning permission shall be treated as having been granted for the development or activity, as it is in the state resulting from the owner or occupier having complied with the enforcement notice's requirements. As the section applies to all the remaining uses or activities on land once the enforcement notice has been complied with, LPAs should ensure that they identify all the relevant breaches of planning control involving the use of the land before they issue an enforcement notice. Where the land is in mixed use, it is important that the notice should allege a change of use to that mixed use, specifying all the component elements in the notice's allegation…….if the LPA do not specify all the uses taking place on a planning unit in a mixed use case, the Secretary of State's or an inspector's appeal decision will correct that notice, to reflect the actual situation as it was when the notice was issued, before dealing with any 'deemed planning application' on that basis. In these circumstances, if the LPA have failed to identify any uses of the land which may not already be lawful, and to which planning objections would apply if they were to become lawful, the effect of section 173(11) could be to grant deemed planning permission for those uses if they are specified in the allegation but are not required to cease…" (Annex 2 para 2.10, emphasis added)

38. It is true, as Mr Clay says, that the first italicised passage appears to suggest that the deemed permission will apply to any uses remaining on the land once the notice has been complied with, even if not referred to in the notice. On the other hand, the second passage appears to limit the effect of the subsection to uses which are specified in the notice but not required to cease. Before the Judge, Mr Mould accepted that the paragraph was "confusing or ambiguous". He told us that a revised Circular was in the course of preparation, subject to our decision. In any event, as the Judge said, the terms of the Circular cannot govern the construction of the section.
39. In my view, the Judge was right to treat Scott as definitive on this issue. That view has been confirmed by the court in a judgment given since the argument in this case (Maldon DC v Hammond [2004] EWCA (Civ) 1073, to which Brooke LJ was also a party).
40. However, in view of my past role it may be appropriate for me to add a few words. It is useful to remind oneself of the background of the subsection, which lay in the gradual widening of the statutory powers of authorities to "under-enforce" (following the doubts raised in Copeland v Secretary of State (1976) 31 P&CR 403). Its immediate predecessor was section 87(16) of the Town and Country Planning Act 1971 (introduced by amendment in 1981). That applied to an enforcement notice in respect of development consisting in "the erection of a building or the carrying out of works". In such a case, it was open to the authority, rather than requiring removal of the whole building or works, to require steps simply for the purpose of "removing or alleviating injury to amenity caused by the development" (s 87(10)(b)). Once the notice was complied with, section 87(16) gave deemed permission for the "retention of the building or works as they are a result of compliance with the notice".
41. In my 1989 report I recommended that section 87 should be clarified and expanded, to make clear that under-enforcement was permissible in relation to all types of breach, and that authorities should have "a broad discretionary power to deal with the effects of a breach" (p 73). In that connection I added that section 87(16) –

"… needs to be extended to cover any case of under-enforcement to make clear that permission is deemed to be granted for the works or use as they are left as a result of compliance with the notice" (p 75).

42. In retrospect, I can see that this brief comment required further elaboration. It gave insufficient weight to the important practical distinctions in this respect between operational development on the one hand, and uses on the other. In relation to operational development, the requirements of the notice will normally be defined in physical terms (for example, the removal of part of a building); and there should be little difficulty in identifying "the building or works as they are a result of compliance with the notice". In relation to uses, as this case shows, the position may be much less clearcut. Some other means is required to define what is and is not within the scope of the deemed permission.
43. The draftsman of the new provision was more precise. He introduced the pre-condition that the activity must have been one which the particular enforcement notice could have required to cease. It is not enough that it could have been the subject of enforcement action under a differently drafted notice. As Schiemann LJ observed, an enforcement notice cannot require an activity to cease, unless it is part of the breach of planning control identified by the notice itself. Not only is this interpretation supported by the wording of the section, it also makes practical sense for all parties. It ensures that the authority does not give deemed permission by an oversight; and, for those interested in the land, it provides clarity as to what is and is not permitted.
44. Accordingly, I reject the appeal under this issue also.

The requirements of the notice

45. Finally, I would add one comment on a point which may become relevant to the appeal under ground (f).
46. During the hearing I expressed concern that the requirements of the notice might be too drastic, in that they appeared to exclude activities which seemed on the evidence to have been carried on for more than ten years, and to which in any event the authority had apparently no objection at the levels of use which prevailed for a large part of that period. Ground (f) enables the appellant to argue that the requirements of the notice exceed what is necessary either to remedy the breach of planning control or any injury to amenity caused by the breach.
47. Mr Clay referred us to the notice of appeal, in which, under ground (f), it had been contended that it would be excessive to uphold all the requirements of the enforcement notices since -

"Some commercial activity has taken place on the site for many years, without the LPA considering that enforcement action was necessary… There can be no justification for reducing the scope of uses to less than the LPA presumably though were sufficiently harmless not to warrant enforcement action in 1995 and 1997."

It is not clear to me how far this aspect was pursued by Mr Fidler at the inquiry. The inspector did give some consideration to the extent of activities which should be regarded as lawful. He noted that the council's witness had accepted that the use of the site for hay and straw dealing and agricultural contracting was lawful having been commenced more than ten years before July 1992; and that Mr Fidler himself in evidence had only referred to those two uses as being lawful in his questions to his own planning witness and to the council's planning witness (paras 104 to 105). He did not refer to any point having been taken by Mr Fidler as to other non-agricultural uses. In his conclusion under ground (f) the Inspector simply commented that he did not regard the requirements as excessive.

48. Since the matter is to be remitted to the Secretary of State by virtue of the order of Richards J, it will (as Mr Mould concedes) be open to Mr Fidler to take any relevant arguments under ground (f) in the re-opened appeal.
49. I would, however, draw attention to the width of the powers available to ensure that the requirements are tailored to the harm which the authority is seeking to control. The difficulty, in the case of a mixed and fluctuating use such as the present, may be to define with any precision what is permissible or acceptable. In the 1989 report I referred by way of illustration to the case of Lee v Bromley LBC (1982) 45 P&CR 342. In 1976, the Secretary of State had upheld an enforcement notice requiring the discontinuance of the current use of a site for scrap metal collection. The use had begun on a more limited scale before 1964 (which under the legislation then current gave it immunity from enforcement). The Secretary of State sought to protect this position by a proviso in the notice to the effect that the notice should not apply to prevent the use so far as it was found to have existed before 1964. The court upheld the notice, while expressing concern at the difficulty for the landowner of discovering precisely what he could or could not do under it. In my report I commented -

"… it would be desirable to include an express power not only to discontinue a use, but also to impose limits within which it may be carried on. This may help to enable a clearer benchmark to be provided in some cases of intensification, or in fluctuating uses (for example by reference to numbers of vehicles, noise limits, parts of the site.)" (p 74(v))

Section 173(5)(d), as I understand it, gives effect to that recommendation by enabling the notice to prohibit the carrying on of an activity "except to the extent specified in the notice".

50. I make no criticism of the way the authority or the inspector approached the matter against the confused factual background of this case, and the arguments as presented. Under ground (f), it was open to Mr Fidler to propose specific limits on his activities, to bring them within levels acceptable to the authority. He does not appear to have done so. The burden was on him. I mention the point only to indicate that there may be realistic alternatives to requiring the complete cessation of commercial uses on the site.

Conclusion

51. For these reason, I would dismiss the appeal, and confirm the Judge's order that the matter be remitted for reconsideration, in the light of his judgment and that of this court.

Lord Justice Buxton

52. I agree with everything that has fallen from my Lord. I would add only one small comment. Not only are we bound, as was the judge, by Scott, but also I respectfully consider that case to have been plainly correct. The construction sought by the appellant would place a very unreasonable burden on planning authorities, to seek out and specify every current breach before they took any enforcement action; and would be in danger of creating adventitious and irrational exemptions from planning control, as indeed would have been the outcome had the appellant succeeded in this case.

Lord Justice Brooke

53. I also agree.