England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE WILKIE
CO/2732/2005

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th October 2006

Lord Justice Ward:

1. At issue in this appeal is the validity of a document purporting to be a Certificate of Lawful Use or Development issued by the South Gloucestershire County Council under section 192 of the Town and Country Planning Act 1990 ("the Act").

The background

2. The certificate relates to the use of a site of some 0.23 hectares which are part of the former Winterbourne railway booking office and station yard which was closed in 1955. The site has had a complicated planning history since the closure of the station. In January 1965 planning permission under the reference SG 7789 was granted to the Bristol Avon River Board for the change of use "of railway booking office and yard to garage and store for the Bristol Avon River Board", subject to two conditions namely:

"(a) The building shall not be used for any purpose within class X of the Town and Country Planning (Use Classes) Order 1963 other than that now permitted without the prior consent of the local planning authority.

(b) A scheme of screening …"

Class X related to use as a wholesale warehouse or repository for any purpose. From time to time this has erroneously been referred to as a 1964 planning permission and I shall not trouble to correct the mistake in citations which follow. The site was then acquired by the Bristol Avon River Board which in time became the Wessex Water Authority.

3. The property changed hands in 1999 and again in 2000 when it was acquired by James Hay Pension Trustees Ltd, the respondent to this appeal who, having very recently sold it, chose, understandably enough, not to appear at the hearing of the appeal. We have, however, had the benefit of seeing the skeleton argument prepared on its behalf for the appeal.
4. There was some evidence to suggest that the site was not used for most of the period from 1987 to 2000. It seems however that in 2000 the site began to be used to carry out repairs to and servicing of motor vehicles and a number of cars and vans awaiting repair or servicing were parked in the yard. Part of the site was also used as a builder's yard. Following complaints about the use of the site, the Council served an enforcement notice in March 2001. The respondent appealed and there were various discussions between its agent and the Council about the way forward. Exactly what was happening was rightly described by Wilkie J as somewhat confusing. On 12th June 2001 the respondent's agent wrote:

"As you know, my argument is that the present lawful use of the site by virtue of the historic planning permission granted on it falls within a Use Class B8 and is not a personal one to the Local Water Authority and in accordance with our discussions I now enclose an application for a Certificate of Lawfulness on this basis."

5. In fact the application dated 11th June 2001 accompanying that letter was an application under section 191 of the Act for a certificate of lawfulness for an existing use, although, confusingly, the application itself stated that the existing site uses were not relevant to the application. The ground of the application was that the site benefited from an extant grant of planning permission (the 1965 planning permission). The statement of justification recited that there was no personal condition restricting the planning permission to be for the purposes of the Bristol Avon River Board and so it was submitted that there was a valid planning consent for the use of the station building and yard for a garage and storage yard within Use Class B8.
6. The Council may have dragged its feet in dealing with this until 31st October 2001 when there was a telephone conversation between the Council and the respondent's agent in which the Council seemed to have expressed its uncertainty as to the relief actually being sought. The respondent's agent replied in a letter dated 1st November 2001:

"For the further avoidance of doubt whatsoever, the application is to seek clarification in regard to lawfulness in respect of the use granted planning consent on 1st January 1965 under SG 7789. The issues to be addressed are as follows:

(a) does the use granted now fall within Use Class B8?

(b) that the planning consent was not personal to the Bristol Avon River Board.

This application does not seek lawfulness for the use that is currently being carried out at the site by Mr Mainstone, which is a B2 Use within the building and as I understand it, a sui generis use of storing vehicles, including those for hire, in the yard.

It may be that confusion is caused by the application having been submitted on the basis of an existing use, I followed this course of action because Mr Mainstone's use is unauthorised at present and therefore the lawful use is the one granted permission in 1965. If you consider the application forms should be altered please let me know straight away.

I very much hope, therefore, that you will now be able to issue the Certificate of Lawfulness on the basis described above and set out in the application forms and accompanying documents without delay."

7. Whether submitted with that letter or not is unclear but we know that a further application this time under section 192 being an application for a Certificate of Lawfulness for a Proposed Use or Development was made. This application bears the date 11th June 2001 although, to add to the confusion when explaining why the existing or last use of the land was lawful, it refers to the letter dated 12th June. It makes no reference to the issues raised in the letter of 1st November. The Council's stamp of receipt stamped is dated 12th November 2001.
8. A schedule and report were prepared and circulated on 9th November to deal with the Certificate of Lawful Use application (whatever may have constituted that application) which had been submitted under section 192 and article 24 of the Town and Country Planning (General Development Procedure) Order 1995 to establish the lawfulness of a proposed use relating to the site. The report stated that the two issues to be established were (1) whether the 1965 planning permission was personal to the Bristol Avon River Board and (2) whether the uses permitted by Use Class X referred to in the condition fell within Use Class B8.

The Report recommended that on a balance of probability a certificate should be issued answering both those questions in the affirmative.

9. Thus the Council issued the document, the validity of which is at the centre of this appeal. This document is described as "Permission for Development". The reference is the reference given for the first application submitted in June. The document states:

"South Gloucestershire Council in pursuance of powers under the above-mentioned Act hereby PERMIT the details included in the first schedule on 13th July 2001 in accordance with the application and accompanying plans.

Area Planning Manager

On behalf of South Gloucestershire Council

Date: 19th November 2001

First Schedule

(1) That the 1964 planning permission (SG 7789) is not a personal consent to the Bristol Avon River Board; and

(2) that the store and class X use referred to in the planning permission SG 7789 is now covered by the reference to storage in the Use Class B8.

Second Schedule

Land at Winterbourne Station Yard …"

10. To continue the sorry history, in November 2001 an application was submitted seeking planning permission for the change of use of the station building to a vehicle repair workshop and for the use of the yard to cover parking vehicles. This application was refused in April 2002.
11. In July 2002 a further application was made for a Certificate of Lawfulness for a proposed use of the premises for storage and distribution (class B8). This application was refused in April 2003. Then in September 2003 a further planning application was made for permission for the use of the station building as a vehicle repair workshop, for the use of the yard for parking vehicles and for stationing storage containers. This application was refused in December 2003.
12. Finally, in May 2004 the Council issued an enforcement notice alleging there had been a breach of planning control in making a material change in the use of the land to a mixed use for vehicle servicing, as a base for a motor vehicle business, as a builder's yard and for the storage of caravans, containers and vehicles. The notice required the cessation of that use and the removal of all vehicles, caravans and containers within two months.
13. The respondent appealed on grounds set out in section 174(2)(a), (c), (d) and (g) of the Act. The appeal was dismissed by Mr Denis Bradley, the Inspector appointed by the First Secretary of State. In the appeal on ground (c), namely that the matters (if they occurred) did not constitute a breach of planning control, there were essentially two issues before the Inspector: (a) what was the status of the document issued by the Council on 19th November 2001 and (b) had the planning permission granted on 4th January 1965 been abandoned?
14. By his decision dated 4th April 2005 he determined the first question as follows:

"15. I consider this matter by looking at the purpose of seeking such an LDC [Lawful Development Certificate], i.e. to establish whether planning permission is required for a proposed use. It would not be appropriate to describe the document as an LDC if it failed to identify the nature of the proposed use. Paragraph 8.26 of Circular 10/97 makes clear that an applicant will have to describe the proposal with sufficient clarity and precision to enable to the LPA to understand exactly what is involved in the proposal. The appellant made clear to the Council in his agent's letter dated 12 June 2001 his view that the lawful use of the site was class B8, and this seems to have been the basis of the application. However, the document does not directly state whether this correct. The First Schedule responds to two questions which are related to that issue, but the nature of the proposed use does not appear on the documents. It must be possible that other factors will need to be established in determining whether a proposed use is lawful, such as the question of abandonment. … I therefore conclude that the document is not an LDC under the terms of section 192(2) since it does not confirm that a proposed use would not require planning permission but merely responds to specific questions."

15. As for the second issue before him he decided that the storage use permitted in 1965 had been abandoned by 2000.
16. The respondent appealed to the High Court and that appeal was allowed by Wilkie J. on 30th November 2005. He reversed the Inspector's finding that the Certificate was invalid but upheld the finding of abandonment. The matter was remitted back to the Inspector for reconsideration in the light of the judgment. With permission granted by Richards L.J. the First Secretary of State appeals to this Court.

Discussion

17. Wilkie J. was of the view that the planning history of the site was "of significance" to the determination of the appeal. He acknowledged that the history of the application made by the respondent was "somewhat confusing", as it certainly was. Nonetheless, he found that by the time the Council circulated the Schedule on 9th November, to which was attached the officer's report, "it well knew that it was dealing with an application for a Certificate of Lawfulness pursuant to section 192 of the 1990 Act and that is why the report was couched in the terms in which it was." He rejected the contention of the First Secretary of State that the report made it clear that what the Council thought it was doing was not determining whether the use proposed in the application would be lawful but certifying the Council's view on two aspects of the wording of the 1965 document. In the judge's view it was perfectly clear from the circulated Schedule and the report which was annexed to it that the Council were aware that it was dealing with an application for a Certificate of Lawful Use. He held:

"In my judgment [the report] is plainly a recommendation that a Certificate of Lawful Use be issued in respect of the proposed use of the site in the terms granted to, but not personal to, the Bristol Avon River Board in 1964. That concerns the use of the site for a garage and store but subject to the condition which prohibited the use of the site for other uses falling within Use Class X of the 1963 order unless consent was obtained from the Council. The second recommendation was that the Certificate of Lawful Use should clarify the condition referring to Use Class X now applied to storage in the Use Class B8. That is what the Council, in my judgment, intended to do."

18. I regret I cannot share the judge's confidence that the Council knew what it was doing. The way in which the application or more strictly the applications came before the Council, the lack of clarity in the letter of 1st November and the very language in which the certificate of 19th November 2001 is couched all suggest to me that confusion reigned from beginning to end. The Certificate itself simply cannot be read as a Certificate under section 192 certifying the lawfulness of some proposed use of the land. It is expressly stated to be a "permission for development". The Council was apparently acting "in pursuance of powers" under the 1990 Act to "permit the details included in the First Schedule. There is no express reference to their exercising the powers in section 192. Granting permission is an act quite different from certifying lawful use. The first Schedule does not specify that use.
19. Furthermore, if the matter was as clear as the judge held it to be, then it really is quite inexplicable how in July 2002 the respondent should make another – this time unambiguous – application under section 192 in relation to exactly the same use, which application was this time refused.
20. For my part, however, I do not consider that the Council's intention is at all material to the crucial issue in the appeal, namely the status of the November Certificate. Was this a valid Certificate under section 192 of the Act?
21. Sections 191 and 192 were introduced in response to the recommendations made by Robert Carnwath QC in his report "Enforcing Planning Control" (HMSO February 1989). He endorsed the view that there should be a single procedure to enable the planning authorities to certify that a specified use or operation can be carried on without breach of planning control. As he said in paragraph 7.2:

"A corollary of a stronger system of enforcement is that land-owners should have a reasonably accessible means of establishing what can be done lawfully with their property."

So his recommendation (7) was that there should be:

"single procedure whereby the authority could issue a certificate that any specified use or operation (whether or not instituted before the application) can be carried on without planning permission. Provision should be made to enable a use to be described by reference to a Class of Use in the Use Classes Order, and to enable to the GDO to regulate the form of application and the supporting evidence required."

22. Section 191, which was referred to in the first June application, provides for a Certificate of Lawfulness of existing use or development. Section 192 provides for a Certificate of Lawfulness of proposed use or development. Section 192 is in these terms:

"(1) If any person wishes to ascertain whether –

(a) any proposed use of buildings or other land; or

(b) any operations proposed to be carried out in, on, over or under land,

would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use or operations in question.

(2) If, on an application under this section, the local planning authority are provided with information satisfying them that the use or operations described in the application would be lawful if instituted or begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application.

(3) A certificate under this section shall –

(a) specify the land to which it relates;

(b) describe the use or operations in question (in the case of any use falling within one of the classes specified in an order under section 55(2)(f) identifying it by reference to that class);

(c) give the reasons for determining the use or operations to be lawful; and

(d) specify the date of the application for the certificate.

(4) The lawfulness of any use or operations for which a certificate is in force under this section shall be conclusively presumed unless there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness."

23. Article 24 of the General Development Procedure Order 1995 provides as follows:

"(11) A certificate under section 191 or 192 of the Act shall be in the form set out in Schedule 4, or in a form substantially to the like effect."

That form makes clear it deals with sections 191 and 192 and Article 24. The form itself reads:

"CERTIFICATE OF LAWFUL USE OR DEVELOPMENT
The … Council hereby certify that on … [the date of the application to the Council] the use*/operations*/matter* [*delete where inappropriate] described in the First Schedule to this certificate in respect of the land specified in the Second Schedule to this certificate and edged*/hatched*/coloured* [* delete where inappropriate] on the plan attached to this certificate, was*/were*/would have been* [*delete where inappropriate] lawful within the meaning of section 191 of the Town and Country Planning Act 1990 (as amended)" [although section 192 is not expressly referred to here, it is obvious that the certificate will identify section 192 if proposed use is being authorised] "for the following reason(s):

…

Signed

On behalf of ….

Council

Date …

First Schedule

[Full description of use, operations or other matter if necessary by reference to details in the application or submitted plans including a reference to the Use Class if any, specified in an order under section 55(2) of the 1990 Act, within which the certificated use forms]

Second Schedule

[The address or location of the site]."

24. Wilkie J. held:

"32. … The next question is whether the document issued on 19th November constitutes a section 192 certificate. There can be no question but that the document issued on 19th November 2001 does not comply with the requirements of section 192(3) nor with the requirements of 24(11) of the General Development Procedure Order 1995. There is nothing on the face of the document which purports to make it a certificate issued under section 192. There is no doubt, however, that it is intended to be a significant planning document. It is intended to have legal effect by defining that which the applicant was permitted to do. Furthermore, it purports to set out what it is to be permitted to do in the First Schedule. The First Schedule refers specifically to the 1964 planning permission and, by implication, that the permission so referred to benefits those other than the Bristol Avon River Board and, in particular the applicants. It further clarifies by updating one of the matters contained within that 1964 document by reference to the current Use Classes. Thus, in my judgment, it does satisfy the requirements of sections 192(3)(a) and (d). It attempts obliquely to satisfy (b) but it fails entirely to satisfy (c). As to paragraph 24(11) it is certainly not in the form set out in Schedule 4. The question arises whether it is in any form substantially to the like effect.

…

35. In my judgment it is obvious and evident that the document as issued contains errors. Moreover, the terms of the first Schedule are opaque and require clarification. It is permissible to view such a document in its context which includes, for this purpose, the exchanges of correspondence and the terms of the officers' report. From those documents, in my judgment, the notice as read in that context becomes sufficiently clear to leave a reasonable recipient in no reasonable doubt as to the terms of the notice. It is, as I have found, plain that, by the time the notice had been issued and the report written, the application was for a certificate for lawful use in respect of proposed usages pursuant to section 192. The subject matter of the proposed usage was the change of use for which permission was granted to the BARB in 1965. The applicant proposed to use the premises in that way. The decision of the Council, as recommended by the officers, was that it should be able to do so because the 1965 permission was not personal to the BARB and, furthermore, the use classes referred to in the 1965 permission were parallel to the current use class B8. Viewed in that context, it is clear both what was applied for, what was intended to be granted, and its terms. In my judgment, therefore, taking that approach, the certificate issued was in a form substantially to the like effect to that set out in Schedule 4 of the General Development Procedure Order 1995. Furthermore, the failures to comply strictly with the terms of section 192(3) did not prevent the statutory notice having an effect as such.

36. In my judgment, therefore, the Inspector was wrong in law to fail to characterise the document of 19 November 2001 as a Certificate of Lawful use. That being so and having regard to section 192(4) of the TCPA 1990 the lawfulness of any use for which that certificate is in force should be conclusively presumed.

37. In my judgment, therefore, this appeal must succeed …"

25. The judge was obviously correct in finding that there were failures to comply strictly with the terms of section 192(3) and also that the certificate was not in the form set out in Schedule 4 to the GDPO. It does not on the face of it purport to certify that any and if so what use is lawful. It is a certificate granting permission for development. I am far from convinced that the local planning authority did satisfy themselves, as they had to be satisfied pursuant to section 192(2), that the use or operations described in the application would be lawful if instituted or begun at the time of the application. They had to certify that they were so satisfied but there is no such certification. As for their compliance with section 192(3) the land was specified as required by (a) but there was no clear description of the use or operations in question as required by (b) and they wholly failed to give reasons for their determining the use to be lawful as required by (c). As for (d), they did manage to specify the date of the application, or at least to specify the date upon which it was registered which may not quite be the same thing, but never mind that.
26. Furthermore, as the judge recognised, the certificate was not in the form prescribed by Schedule 4 to the GDPO. The certificate speaks of permitting "the details included in the first schedule" and, looking at the certificate, one simply would not know that the Council were certifying some specified use to be lawful, something the prescribed form makes clear. The First Schedule was hardly a full description of the use "described if necessary by details in the application or the submitted plans". There was absolutely no statement of the reasons for the planning authority's decision. To be in substantially the same form the disputed certificate had at least to contain the essential information required by the GDPO even if it is laid out differently. Looking at the certificate, at what is says and what it does not say and comparing that form with the prescribed form, leads to only one conclusion and that is that they are in a form significantly different from each other. The certificate is not substantially to the like effect of the prescribed form. There was accordingly a failure to comply with Article 24 of the GDPO.
27. Miss Lieven submits that those failures are fatal to the respondent's case. I agree. Section 192 is couched in mandatory terms. It had to be complied with. It was not. The certificate was not in the prescribed form or anything substantially to the prescribed effect. The failures of the planning authority cannot be rescued by their good intentions. Lord Hoffmann made the point sweetly in Mannai Investment Company Ltd v Eagle Star Life Insurance Company Ltd [1997] AC 749, 776 when he said:

"If the clause had said that the notice had to be on blue paper, it would have been no good serving a notice on pink paper, however clear it might have been that the tenant wanted to terminate the lease."

Here, as there, the Council used the wrong piece of paper. That, in my judgment, is an end to the matter. The appeal should be allowed on that basis.

28. The judge sought to salvage the muddle by a resort to a line of authority on the construction of documents. Thus he referred to the judgment of Keene J, as then was, in R v Ashford Borough Council ex parte Shipway District Council [1999] BLCR 12, 20 where he said:

"If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic evidence, including the application, to resolve that ambiguity: see Staffordshire Moorlands District Council v Cartwright (1992) J.B.L. 138, at 139 …"

He also referred to Mannai and to York & Ross v Casey & Casey (1989) 31 H.L.R. 209, cases on the construction of contractual notices and a statutory notice required by the Housing Act 1988 respectively. In upholding the validity of such notices the court had to consider first whether the error in the notice was obvious or evident and secondly whether notwithstanding the error the notice read in its context was sufficiently clear to leave a reasonable recipient in no reasonable doubt as to the terms of the notice.

29. In my judgment those principles have no application here. This case is not concerned with the construction of the meaning of the words in the certificate but with a different question, namely whether the certificate has any legal status at all. That depends on whether the certificate complied with the statutory requirements for its validity. It did not.
30. There is a second reason why I would distinguish these cases. They relate to notices given by one party to another affecting the legal relationship of those parties. This certificate is not a private notice between the planning authority and the applicant. It is a public document in which the rights and interests of the public have to be taken into account. Again Lord Hoffmann makes the point. The predecessor of section 192 was section 64 of the 1990 Act as originally promulgated. In R (Reprotech Ltd) v East Sussex CC [2002] UKHL 8 [2003] 1 WLR 348 Lord Hoffmann said in paragraph 27:

"Such a determination [under section 64] is a juridical act, giving rise to legal consequences by virtue of the provisions of the statute. The nature of the required act must therefore be ascertained from the terms of the statute, including any requirements prescribed by subordinate legislation such as the general development order. Whatever might be the meaning of the resolution, if it was not a determination with the meaning of the Act it did not have any statutory consequences. If I may quote what I said in the Mannai case [1997] AC 749, 776B [and he quotes the passage I have already cited].

31. Circular 10/97 (Enforcing Planning Control: Legislative Provisions and Procedural Requirements) sets out the policy in paragraph 8.28, correctly relied upon by the Inspector. That provides:

"Subsection (3) of section 192 is the counterpart, for proposed uses or operations, of section 191(5). It provides that a LDC granted under section 192 shall specify the land to which it relates; describe the use or operations in question (where appropriate, identifying a use by reference to the relevant "use class"); give the reason why carrying out the proposal would be lawful; and specifying the date of the application. Although this certificate would not be the equivalent, in law, to a grant of planning permission for proposed development, it will indicate that, unless any relevant factor has changed since the application date specified in the certificate, it would be lawful to proceed with that proposal. It is therefore vital to ensure that the terms of the certificate are precise and there is no room for doubt about what is lawful at a particular date."

As the Carnwath Report recommended land-owners should have a reasonably accessible means of establishing what can be done lawfully with their property. Looking at this certificate, one is totally at a loss to know whether it is a grant of permission or a Certificate of Lawfulness of proposed use. An interested party should not be expected to trawl through the file to discover what may have been intended. The Act specifies more precision. This certificate did not provide it.

Conclusion

32. For these reasons I would allow the appeal and restore the Inspector's decision.

Lord Justice Wall:

33. I agree.

Lord Justice Richards:

34. I also agree.