England and Wales High Court (Administrative Court) Decisions

HON. JUSTICE COLLINS [2000] EWHC Admin 436 (21st December, 2000)

Case No: CO/1971/2000

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

ROYAL COURTS OF JUSTICE

STRAND, LONDON, WC2A 2LL

Thursday 21 December 2000

MR JUSTICE COLLINS:

1. This is an appeal under s.289 of the Town an Country Planning Act 1990 by Cecil Wiggins and Wiggins transport Ltd. whereby they seek to quash an enforcement notice which was substantially upheld by an inspector on 8 May 2000 following an inquiry held between 28 and 30 March 2000.

2. The site which is the subject of the enforcement notice has a somewhat complicated planning history. It is described as the Poyle Recycling Centre, Poyle being at the eastern end of Berkshire. The notice was served by the second respondent, Slough Borough Council on 25 August 1997. It alleged that the land to which it referred had been used for dealing with waste without planning permission since 1 April 1998. The appellants use the site for crushing concrete and so recycling it.

3. The notice requires that the operations cease, the buildings be removed and the land be reinstated to an agricultural use. The land covered by the notice is divided into two roughly equal areas, one of which requires slightly different reinstatement. They are designated Area A and Area B.

4. Nothing turns on this particular division, but the planning history of Area A is of vital importance to this appeal. Area A itself comprises three parts, known (to add to the confusion) as B North, B South and C. The buildings are and the concrete crushing is carried out on B North and C and so for the purposes of this appeal B South can be ignored.

5. One of the causes of complication has been that the border between the Counties of Surrey and Berkshire used to run through the site. Local government changes over the years since 1947 have moved the border and have meant that different planning authorities have from time to time been responsible. The site lies in the Metropolitan Green Belt so that the development and use in question is inappropriate and regarded as harmful and so must be justified by very special circumstances. Thus in considering whether planning permission should be granted, the Inspector had to weigh the extent of the harm against the need for the facility in question.

6. In 1952 outline planning permission was granted for the erection of what was described as a filtering media plant. Further permissions in 1972 and 1973 approved the details (probably after the use had commenced). The area covered by these permissions was essentially B North and C. The operation involved the crushing of clinker from power stations to produce a filter medium used, for example, in sewage works. In January 1978 a determination under s.53 of the Town and Country Planning Act 1971 was sought to enable a change of use to crushing, grading and storing concrete. In March 1978 the then planning authority, Spelthorne Borough Council, decided that such change of use required planning permission and this view was upheld on appeal. Notwithstanding this, the appellants proceeded with (or perhaps continued) the new concrete crushing operations without obtaining planning permission and have continued that use until the present day.

7. By virtue of an amendment to the Use Classes Order which came into effect in March 1995, both the filtering media and concrete crushing uses now fall within Class B2 and so no planning permission is required for the change from one to the other. But that was not retrospective.

8. There was some enforcement action through the 1980s but not, apparently, against part of the site which had been covered by the 1952 planning permission. It is unnecessary to go into the details. Suffice to say that no enforcement action affected B North, but C was the subject of such action. By virtue of s.191 of the Town and Country Planning Act 1990 (the 1990 Planning Act), the use for concrete crushing on B North was by 1990 to be regarded as lawful since it had been carried on since at least 1980. Section 171B(3) of the 1990 Planning Act prevents in a case such as this any enforcement action after ten years from the date of the breach and s.191(2) provides:-

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

(a) no enforcement action may then be taken in respect of them ...; and

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

9. In 1992, the appellants applied for planning permission to permit the concrete crushing operations to continue on B North and C. By then, that use on B North was lawful pursuant to s.191(2), but was not lawful on C because of the enforcement action which had been taken. The operations covered both areas and so the planning permission sought covered both. There followed protracted negotiations. Eventually, on 31 March 1995 a temporary permission was granted subject to conditions. At the same time, a document described as a `planning obligation' pursuant to s.106 of the 1990 Planning Act was signed by the appellants, Surrey County Council and Berkshire County Council. The significance of the date 31 March 1995 is that on 1 April 1995 the county boundary was due to change so that Berkshire instead of Surrey became the planning authority. Since then, Slough Borough Council, a new unitary authority, has taken over from Berkshire.

10. The planning permission was for a temporary period and subject to conditions, the most important for the purposes of this appeal being 2 which reads;-

"The permission hereby granted shall be for the limited period expiring on 1 April 1998 on or before which date the use shall be discontinued and the building and / or works removed and the land reinstated to the reasonable satisfaction of the County Planning Authority.

Conditions 16, 17 and 18 contained detailed requirements in relation to reinstatement after 1 April 1998,. It is not necessary to recite them. The `planning obligation' is a somewhat curious document. S.106 of the Planning Act 1990 enables those interested in land to enter into obligations requiring them to do or restricting them from doing things. The obligations are enforceable by injunction (s.106(5)) and run with the land (s.106(3)). The obligations to be performed are contained in the first schedule to the deed. They inter alia require the carrying out of reinstatement works in accordance with conditions 16, 17 and 18 of the planning permission but with a proviso that these conditions shall not apply to B North. Condition (g) reads:-

"Except as permitted by the said Planning Permission and the Planning Permission dated 20 October 1952 and numbered P/1381 not to use or to cause or permit the use of the Surrey land (but excluding the land shown coloured yellow hatched black) for the storage treatment processing or disposal of waste materials or any related operations or activities or for the storage of skips vehicles or plant".

The words "(but excluding the land shown coloured yellow hatched black)" (that being B North) are in manuscript and there is no indication that they form part of what was expressed in the deed.

However, neither counsel has submitted that they should be regarded as not incorporated into the deed.

11. I have very considerable doubt whether it is proper or appropriate to use s. 106 agreement to waive or to water down the requirements imposed by conditions in a planning permission. However, Mr. Katkowski has not submitted that the `planning obligation' can override the condition in relation to cessor of use for concrete crushing on both B North and C. His submission is that the lawful use on B North is unaffected by the planning permission and so can be continued notwithstanding the condition in the planning permission.

12. Before considering the enforcement notice in more detail and the inspector's report and decision, I should refer to the material statutory provisions which I have not hitherto cited. All are in the Planning Act 1990. I start with s.57, which lays down the requirement for planning permission for carrying out any development of land. The material subsections are (1), (2), (4) and (7), which read:-

"(1) Subject to the following provisions of this section, planning permission is required for the carrying out of any development of land.

(2) Where planning permission to develop land has been granted for a limited period, planning permission is not required for the resumption, at the end of that period, of its use for the purpose for which it was normally used before the permission was granted.

(4) Where an enforcement notice has been issued in respect of any development of land, planning permission is not required for its use for the purpose for which (in accordance with the provisions of this Part of this Act) it could lawfully have been used if that development had not been carried out.

(5) In determining for the purposes of subsections (2) and (3) what is or was the normal use of land, no account shall be taken of any use begun in contravention of this Part or of previous planning control".

S.57 is in Part III of the Act, headed `Control over Development'. Enforcement is dealt with in Part VII (ss.171A - 196C). S.171A(1) reads;-

"For the purpose of this Act -

(a) carrying out development without the required planning permission; or

(b) failing to comply with any condition or limitation subject to which planning permission has been granted,

Constitutes a breach of planning control".

If there has been a breach of planning control, an enforcement notice may be served (s.172). S.173 deals with the contents and effect of such a notice. S.173(1)(b) requires that the paragraph of 171A(1) within which, in the opinion of the authority, the breach falls must be specified. Errors may (unless they render a notice a nullity) be corrected on appeal provided no injustice is done to either party. The grounds upon which an appeal against an enforcement notice may be made are set out in s.174. In this appeal I am concerned with the grounds set out in s.174(2)(a) and (c) which respectively are that planning permission ought to be granted and that the matters complained of do not constitute a breach of planning control.

13. The enforcement notice alleged a breach under s.171A(1)(a) in that the use of the land and the part erection of one and the retention of the buildings constituted the carrying out of development without the required planning permission. In paragraph 5 of his decision, the inspector said that he considered that this was erroneous and that the notice should have alleged a breach of condition. He was clearly correct in this view. He said he was satisfied that he could correct the error without injustice. In the grounds of appeal to this court, the appellants complained that they had not been informed by the inspector of his intentions and so had been unable to make submissions to deal with the new situation. They had been relying on s.57(4) of the Planning Act 1990, which did not apply to breach of conditions. Now s.57(2) and (5) were material and no argument had been developed in relation to those subsections. There was an unfortunate dispute between Mr. Katkowski and his instructing solicitors on the one hand and the inspector on the other whether the inspector had notified the parties of his intention. Fortunately, I have not had to resolve that dispute since it has been accepted by Mr. Katkowski that the point is one of law and no further or different evidence would have been presented to the inspector and so I can consider the argument even though it was not raised below. Mr. Corner has accepted that I should proceed in that way. In those circumstances, there can be no injustice to either party.

14. Mr. Katkowski has argued three grounds, although 1 and 2 can be taken together. He submits that the temporary planning permission was unnecessary in relation to B North and could not extinguish the use which was lawful. He relies particularly on the decision of the House of Lords in Newbury District Council v SSE [1981] A.C. 578. Thus he submits there was no breach of control on B North (s.174(2)(c)) and in those circumstances planning permission ought to have been granted since the use on B North could continue (s.174(2)(a)). Ground 3 is a reasons challenge to the inspector's approach to determination of need for the operations carried on by the applicants.

15. I shall deal with ground 3 first. Evidence of need involved consideration of the Waste Local Plan (WLP) for the relevant part of Berkshire. I was referred to various paragraphs of that plan. In 3.6 the problem in Berkshire was summarised thus:-

"The need to develop a future waste management strategy which reflects the objectives of cutting down the waste we create and recycling as much wastes as we can, while finding enough suitable ways of safely disposing of the wastes still retaining without causing excessive harm to Berkshire's environment or to people living and land uses located near waste facilities".

Concrete crushing involves recycling inert waste. In paragraph 3.30, an ambitious approach to recycling is encouraged and a table is included which is said to "reflect the Authorities assessment of what could be achieved and the need to make such targets `challenging' in order to ensure that meaningful progress is made over the Plan period". The Table is headed `Recycling Targets' and those for inert waste are 30% by 2000/01 and 40% by 2005/06. A later Table shows 40% to be equivalent to 516,000 tonnes. Those targets are in the context that the maximum possible recycling should be achieved (Paragraph 3.56). That is what the EU requires and the damaging effect of wastes on the environment means that as much recycling as possible should be achieved.

16. I have also been referred to Paragraph 3.50, which is in a part headed `The facilities needed to implement the new waste strategy'. It makes the perhaps obvious point that the strategy can only work if there are sufficient suitable sites available, that is to say, sites which are available and likely to secure planning permission. It states:-

"There are a number of authorised sites in the county area where waste management activities already take place (see Appendix 5)....."

Paragraph 3.53 refers to Appendix 4 which is said to contain `the indicative number, types of facilities and special distribution needed to make [the strategy] feasible ..." These facilities are said to be `additional' to those set out in Appendix 5

Appendix 5 is said to contain sites which have `both a valid Planning Permission (or equivalent such as a certificate of Lawful Use) and a valid Waste management Licence (or equivalent)'. The appeal site is included with a capacity of 85,000 tonnes. This is erroneous since by July 1998, which is the relevant date for Appendix 5, there was no valid planning permission or equivalent. And Appendix 4, which is supposed to contain facilities required additional to those in Appendix 5 contains among the requirements for inert wastes that there should be 4 to 6 facilities with a throughput of about 100 to 150,000 tonnes each making a total of about 650,000 tonnes which should be distributed throughout the County close to sources of population.

17. The inspector deals with this at Paragraphs 21 to 26 of his decision. He talks of the 40% (516,000 tonnes) by 2005/06 as an objective and reaches his conclusion on the basis that that objective can be met without the appellants' site. He notes that two of the existing inert waste sites (the appellants' and another with a throughput of 300,000 tonnes) are contained both in Appendix 5 and Appendix 7, which is a list of preferred sites in accordance with Appendix 4 criteria. The apparent contradiction was unexplained.

18. Mr. Katkowski submits that the inspector erred in thinking of the figure of 40% as an objective. He should have regarded it, he submits, as a minimum. In addition, he failed to give sufficient or any weight to the inclusion in the WLP of the appeal site as n existing site so that he has not properly concluded that the WLP requires additional sites. The WLP itself refers to targets. There is no error by the inspector in talking the same language. The erroneous inclusion of the site in Appendix 5 cannot create any advantage for the appellants. There is in my judgment no question but that the inspector dealt adequately with the issue of need and the weight to be attached to it and Ground 3 must fail.

19. That brings me to Grounds 1 and 2. Initially, the argument seemed to be concerned with whether s.57(2) and (5) could apply and what rights there may be to resume use once a particular permission had ceased. However, Mr. Katkowski made it clear that he did not assert that either of these subsections were relevant since there was here in respect of B North no question of resuming a use. The point was that the same use, which was a lawful use in March 1995, was continued until 1 April 1998 and thereafter. The argument was that s.57 did not apply because there had been no development but merely the same use of the land throughout all relevant periods.

20. Mr. Corner's answer was that planning permission was required for the material development which was on B North and C. The appellant could have (if it was feasible) carried on their operations on B North. What they could not do was use any part of C. Thus they chose in 1995 to apply for a necessary planning permission for the whole site. That was temporary and contained the condition which was effective and which thus extinguished any existing rights given by s.191.

21. In the Newbury case, the House of Lords decided that the condition there relied on requiring removal of hangars was invalid because it did not fairly or reasonably relate to the permitted development. It has not been suggested that the condition in this appeal was invalid. What is suggested is that the planning permission could not extinguish the existing use rights. That could only happen where the implementation of the permission led to the creation of a new planning unit within the principle laid down in Prossor v MHLG (1968) 67 L.G.R. 109. Lord Scarman said (at p.607F), that, that would usually arise only where there had been an operational development, for example, building, mining or engineering works which altered the physical nature of the land, although he did not exclude the possibility that it might apply to a change of use if the change did create a new chapter of planning history. The example given by Lord Scarman was of a change from single to multi-occupation of a building and the impossibility of avoiding conditions by relying on the prior residential use. But Lord Scarman said (at p.618C):-

"Where Prossor's case does not apply, the grant of an unnecessary planning permission does not exclude a landowner from relying on an existing use right".

22. In my judgment, the key lies in the use by Lord Scarman of the word `unnecessary'. If the planning permission was strictly unnecessary because it covered the same site and gave permission only for the activities which could in any event have been continued, Newbury will apply and the existing use rights cannot be extinguished. But if planning permission is required, different considerations will apply. It is not possible to split the permission and say, because it was not needed for B North the use there can continue. The reality is that the permission was required to continue the use on B North and C and that was a different site to B North on its own. Once the necessary permission was obtained and it contained a valid condition, enforcement action could be taken against a breach of that condition.

23. In my judgment, Newbury can be distinguished and for the reasons I have given I reject Mr. Katkowski's argument that the lawful use on B North can be continued. That being so, this appeal is dismissed.