England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		7th October 2004

1. MR JUSTICE COLLINS: Mr Singh, the appellant, occupies premises in Soho Hill in Birmingham. He there carries out a business which goes under the name of the Sofa Factory. It involves the manufacture and repair of items of furniture and their wholesale and retail sales. There is on the premises, as one might expect, a showroom in which the items can be displayed. It seems that there is also the sale of other items such as carpets, and it is the case put by Mr Singh, in the material that went before the Inspector, that 95 per cent of the items which were sold from the premises were manufactured or repaired on those premises by him.
2. He purchased the premises in 2000 when the previous occupants disposed of it. The previous occupants were a firm called TIS, trading as Thomas A Ingram & Company Ltd. They had been trading as such for over 30 years on the premises. The evidence obtained by the appellant from them was in the form of a letter and this read as follows:

"Up until the date of sale we had been manufacturing, wholesaling and retailing to both trade and public, each amounting to similar percentages of the turnover: signs, name plates, house signs, house numbers, general sign work . . . [et cetera] all on the ground floor at the above address."

It seems that it is only the ground floor that is in use. It is, I gather, a Grade 2 listed building.

3. Following the purchase and change of use -- I do not mean in planning terms but the change from the use for dealing with the signs, name plates, et cetera -- someone appears to have complained to the Council about Mr Singh's operation and that led to a suggestion by the Council that what Mr Singh was doing was not lawful and was in breach of planning control. There was a visit to Mr Singh by a Council officer in early 2001 following the indication of the Council's concern. After discussions with that officer, Mr Singh was informed, or so he said, that the planning department of the Council could live with the retail use but were very concerned about a sign on the outside of the listed building. That sign was duly dealt with and Mr Singh thought that that was the end of the matter.
4. The Council case is that he was informed of the complaint and that Mr Singh indicated that some form of retail sales had been operating from the site for many years and produced evidence to that effect, but the city Council in December 2001 authorised the necessary enforcement action to be taken, including the institution of legal proceedings. It then goes on that the appellant was given the opportunity to submit a planning application or cease using the premises for retail sales. It is not indicated what, if any, communications were had with the appellant, and he says there were none.
5. In due course, out of the blue in October 2003 he received the enforcement notice which is the subject of this appeal. That notice is dated 9th October 2003. It identifies the breach of planning control alleged as:

"Without planning permission the making of a material change of use of the premises to a mixed use for manufacturing and for retail sales."

It states that the breach had occurred within the last ten years, and the reasons for issuing the notice were that the use was contrary to the Birmingham Unitary Development Plan and the Deposit Draft Birmingham Unitary Development Plan, seeking to ensure that the majority of retail development was located in centres.

6. The notice states that the appellant was required to cease the use of the premises for retail sales within two months, that is by 13th November 2003. The appellant appealed against that notice, obtaining the assistance of a firm called Brian Bannister Projects based in Edgbaston. Mr Bannister is an architect and no doubt has some experience in dealing with planning matters, or so the appellant believed.
7. The notice of appeal was based on section 174(2)(b) of the 1990 Town and Country Planning Act. This, so far as material, provides that an appeal against an enforcement notice may be brought on the ground that the matters stated in the notice have not occurred. The matters stated in the notice, in the context of this case and this notice, must relate to the alleged breach of planning control, namely that there had been the making of a material change of use as indicated. Paragraphs (c) and (d) of section 174(2) are material, as is paragraph (f). They read as follows:

"(c) those matters, if they occurred, do not constitute a breach of planning control.

(d) 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) 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."

8. The notice of appeal was accompanied by grounds in the form of a letter dated 7th November, and again, so far as material, what is stated is as follows:

"(1) The current use of the building constitutes the manufacture of residential furniture, primarily settees, dining tables and coffee tables for sale to both the wholesale trade and retail trade. In addition to the manufacturer of these items, they have an active trade in repair and refurbishment of similar items. It was admitted that there are a few ancillary products which are sold, but not manufactured on the premises, however, Mr Singh avers that 95 per cent of all items sold on the premises are manufactured, or repaired there.

(2) The site has been used as a manufacturing unit with associated retail for well in excess of the stipulated minimum of 10 years. Please refer to the following attached letters from the previous owners and their clients."

They then refer to the letter which I have already cited from Ingrams, and to other letters which indicate a retail use of the premises for a number of years. One or two of those refer to Ingrams as a "Cash and Carry" at that address.

"(3) We aver that Mr Amrik Singh is not in breach of the allegation and that his use of the premises is in fact an established use which cannot simply be expunged."

9. The assertion, therefore, was, in the context of the notice that had been received, that a retail use had been carried out for years, it was carried out by the previous occupants, and it was a use which was associated with the manufacture of the items on the premises. That is what was being done and that, therefore, is what could continue to be done and there had been no material change.
10. The Council, at the beginning of January 2004, submitted their written representations. I should have indicated that the appellant chose, as he was entitled to do, to ask for the appeal to be dealt with by way of written representations. The Council, having indicated that there was no relevant planning history and having referred to the site and to the planning policies, went on to identify its case. At paragraph 6.2 this is said:

"There is little doubt that retail sales are being undertaken from the premises, a fact proven by various inspections undertaken by Council officers since 2001, together with the admittance by the appellant's agent, Brian Bannister Projects, in their letter dated 7th November 2003. It is contended that the retail function is not an ancillary use, but is a major part of the operation and is being undertaken without the benefit of planning permission. The Council argues that the retail element of the engineering business carried out by the previous occupiers of the premises, Thomas Ingram & Company was, was ancillary to the principal use."

Later, in paragraph 7.2, in their comments on the appellant's ground of appeal they say this:

"The appellant has furnished documentary evidence from third parties that a retail function was operated from the premises in the past. The Council has no information to support this and would argue that there is no evidence that this was anything more than an ancillary use to the principal manufacturing process."

That is perhaps a trifle obscure depending on what was meant by the word "function" because the Council says there is no information to support a retail function being operated. In fact, it is perfectly clear from all the documentary evidence, and in particular from the letter from Ingrams, that retail sales were being conducted from those premises. Whether that is appropriately described as a retail function I do not know, but what the Council was clearly saying in its representations was that any retail sales from the premises were ancillary to the process of manufacturing there.

11. The appellant's representative commented on the Council's case in a further document dated 20th January 2004. So far as material to the points raised by the Council about ancillary retail sales, this is said in reference to paragraph 6.2:

"The contention is disputed as a matter of operational fact and necessity --

Virtually everything sold is manufactured on site.

To split manufacturing and sales would be economic madness, apart from an unnecessary increase in local traffic movement."

In dealing with paragraph 7.2 this is said:

"The contention is disputed. Overpowering evidence has been provided by those closely involved. The Council have not provided any evidence whatsoever and are relying on wishful thinking."

In a previous paragraph in this document this is said:

"As a statement of fact, the premises have been used for retail purposes for well in excess of ten years referred to by the Birmingham City Council in its correspondence. For evidence of this fact, refer to Brian Bannister Projects Limited's letter dated 7th November 2003 and attachments, plus others subsequently received, especially the one from TIS 2000 Limited.

The City of Birmingham Planning Department have not offered any alternative evidence in this regard."

12. Essentially, what was being said was that there had been no change of use in the sense that the retail use was the same sort of use as had always been carried on at the premises. How that should be labelled in planning terms was not stated. Whether it should be regarded as always having been ancillary use or whether it should be regarded as always having been mixed use is not a matter which the appellant's advisors deal with explicitly. Their contention quite clearly was that it was an use which had already existed, and had existed for some 30 years or so. They had a notice which appeared to prohibit any retail use of those premises and therefore they focussed particularly upon whether there had been a retail use.
13. The Inspector deals with the matter as follows. He refers to the basis of the ground (b) appeal under section 174(2)(b) in these terms. He says:

"The basis of this ground of appeal is that the primary use of the property is the manufacture and repair of furniture for sale to both the wholesale and retail trade. It is also argued that a similar type of use has been carried on for well over ten years prior to the issue of the notice."

As a matter of fact, that contention is surely correct. A similar type of use had been carried on in the sense that the previous occupants had manufactured the various name plates et cetera on the premises and had sold them by retail and by wholesale. The key question was whether, albeit a similar type of use, as a matter of fact what was being done by the appellant was something which was different from that which had been previously done, and so constituted a material change of use.

14. The Inspector notes that there was a considerable area in which furniture of differing sorts, together with coverings, fabrics and finishes were displayed, and there were a not insignificant number of beds, dining tables, chairs, sideboards and cupboards. In one corner was an area for carpets and associated materials. He then continues in the key paragraphs 4 and 5 as follows:

"(4) I saw that parts of the ground floor are used to store chair and sofa frames, patterns, cloth and other items relating to upholstery. But, while there was some evidence of work involving the upholstery of sofas and chairs and the carrying out of repairs to items of furniture this appeared to be on a modest scale compared with the extensive areas given over to the display of furniture and carpets for sale. There were very few machines present or significant working space in use to suggest to me that manufacturing and repair was the main activity carried on and that any sales were ancillary to that use. Consequently, I conclude that the notice is correct in alleging a mixed use of the premises for manufacturing and retail sales. Therefore what is alleged has occurred as a matter of fact.

(5) The question of whether the present use is materially different to the previous use relates more to a ground (c) appeal than ground (b). Likewise, the question of immunity is more relevant to ground (d) or an application for a lawful development certificate. But, in any event, the evidence submitted as to the nature of the former use is sparse and imprecise. Whilst it is claimed that manufacturing, wholesaling and retailing was carried out by the former occupier, Thos.A Ingram & Co, for over 30 years there is no evidence of substance as to the nature of the claimed retail sales and their relationship to manufacturing activities. The Courts have held that in relation to ground (c) and (d) appeals the onus lies firmly with the appellant to justify the argument that planning permission is not needed or that the use is immune from enforcement action. The evidence submitted by the appellant falls far short of what is required in this respect. Consequently the ground (b) appeal and related arguments are unsuccessful."

The last sentence of paragraph 4, where the Inspector says that what is alleged has occurred is a matter of fact, cannot be taken entirely at face value because what was alleged to have occurred was a material change of use. In paragraph 5 he goes on to consider whether what he saw did constitute a material change of use. Clearly what he must mean is that there is now a mixed manufacturing/retail use, in his view, existing at the premises. He then goes on to consider whether that mixed use is materially different to the previous use which was very imprecisely described, as he indicates, in the material that was before him.

15. It seems to me that the only fair construction of the Ingram letter, which I have already cited, is that they carried on all their activities from those premises: they manufactured all these items there, and they sold them from the premises. They sold them to trade and to the public, by way of wholesale and retail, and each amounted to a similar percentage of turnover. The natural reading, I would have thought, and it was the reading which first appealed to Mr Palmer (having rejected the idea that turnover could relate to manufacture as well as to wholesaling and retailing) was that sale by retail amounted to about half of what was manufactured, and sale by wholesale for about the other half. Essentially, it is plain that they were using the premises to carry out the whole of their business in order to make and to sell what they had made.
16. What Mr Singh says he was doing was exactly the same: using the premises to make and repair the goods, as is accepted, and then to sell by wholesale or by retail what he had made. It is true that the Inspector's view from his inspection was that the retail side had grown to such an extent as to take it out of any proper description as ancillary. On the other hand, there is an obvious difference between the items that Ingrams were dealing with, which would need, on the face of it, a very small area for display, and that which Mr Singh was doing which would require a much larger area for display. The physical difference in the size of the area used for the display would not, of itself, necessarily indicate that there was a change in the use, whether it was previously properly to be regarded as ancillary or properly to be regarded as mixed.
17. Whether the change was sufficient to prevent it being the same as what had been there before would be a matter of fact and degree but it should have been essential, to have gone into that in greater detail in order to reach a proper determination on that issue. On the other hand, it is clear in my view, and the authority which is produced by Mr Palmer, Nelsovil v Minister of Housing and Local Government [1962] 1 WLR 404, supports this, that in an enforcement appeal the onus rests upon the appellant to establish his case and to put forward the material necessary to show, in a given case, that the ground upon which he relies is established. Nelsovil does not directly, so far as its own facts are concerned, relate to what is now ground (b) but it seems to me that the principle is applicable and it is for the appellant to establish that the matters alleged in the notice have not occurred. Obviously, what material he has to produce to establish that will depend upon the circumstances of any case. In some cases it may be very easy to establish that that is the position.
18. What troubles me, I am bound to say, is that it must have been clear to the Inspector -- and indeed he refers to it himself to an extent in paragraph 5 because he goes on to consider grounds (c) and (d) although only (b) was relied on -- that the approach taken by the advisors, perhaps misled by the indication in the enforcement notice that no retail sales were to be permitted, was that provided they could show that there had been retail sales in the same sort of way previously, that would be sufficient. They were indicating that what Mr Singh was doing was no different from what had been done before, subject perhaps to the 5 per cent or thereabouts which related to items which were not manufactured on the premises. The contention was that that did not make any material difference. There was no evidence before the Inspector of, for example, greater traffic movements, or that there was any increase in those who attended the premises since it changed from selling what Ingrams produced to selling what Mr Singh's factory produced.
19. I am very far from saying that the Inspector's view might well have been correct and that there has not been a material change of use, but he complains that there was insufficient evidence before him. The reason for that, as I say, may well have been because of the form of the notice. Although it is true that the Council's case did indicate that they were saying the previous was ancillary, nonetheless it was plain that the advisors of the appellant had not apparently appreciated the full significance of that, merely repeating the point they were making that the sales were in principle the same. I think it is also fair to say that the Inspector's view of the evidence provided by Ingrams in their letter, namely that there was no evidence of substance in the nature of their retail sales in relation to manufacturing activities, was a trifle harsh. What Ingrams were clearly saying, as I see it, was just what the appellant's advisors indicated, namely that they were manufacturing and selling on the premises the items which they manufactured and approximately half of their business was retail sales.
20. It seems to me that there is substance in the submission that, given the material put before him and given the way in which those advising the appellant had responded to the notice which had in fact been served upon them, the Inspector ought to have appreciated that the crucial issue was not whether there had been retail sales in the past -- clearly there had -- but what was the nature and extent of those retail sales and whether it could properly be said that what the appellant was doing was no different in kind to what had been done before, and that therefore, whether the previous had been ancillary or mixed, the present was no material change from that.
21. Furthermore, the notice required that the retail sale cease. As Mr Palmer accepts, there was and would remain a right to carry out retail sales provided only that they remained ancillary to the manufacturing use. Therefore, submits Mr Palmer, there was no need for the notice to indicate that that would be permitted. It was proper to forbid retail sales on the basis that those retail sales were not ancillary. They were freestanding and that, of course, is the meaning of mixed use in a planning context, namely two primary uses both being carried out at the same time.
22. The problem with that is that Mr Singh must know what he is and what he is not permitted to do by way of retail sale. If the Council have in their possession, as it were, a notice forbidding him to carry out any retail sales, he is in difficulty if he starts retail sales, and he is at a grave disadvantage in knowing precisely how far he can go. That is a matter which ought to have been dealt with in the process of deciding whether this was a notice which should be upheld. I appreciate that he did not, as perhaps he should have done, appeal also on the ground in paragraph (f) of section 174(2). Nonetheless, it is plain that there remains, even without such an appeal, an obligation on an Inspector to consider whether the extent of what is required by an enforcement notice is excessive. It is not essential that the question of ancillary retail sales should have been specifically referred to. As a matter of law it would exist and, as Mr Palmer submits, as a general rule it is not an absolute requirement to identify it in terms. It all depends upon the circumstances of an individual case.
23. It certainly does not appear from his decision that the Inspector asked himself or considered whether the prohibition on any retail selling was something which did go too far and whether there was a need to qualify that so that the appellant would at least (a) know that there was that right, and (b) that the notice itself referred to it so that that was something which, if there ever was enforcement action, could be relied on by the appellant in any proceedings which might be taken. As the notice stands the Council are in a very strong and, I believe, an unfairly strong position in relation to the activities on these premises.
24. Mr Palmer has put before me powerful and cogent submissions in which he indicates that any shortcomings by those advising the appellant really cannot now assist him. They cannot mean that the Inspector has in any way erred. It is plain that the Council were saying that the previous use was ancillary. The material before the Inspector, largely comprising his visit and what he saw, together with the evidence produced by and on behalf of the appellant, clearly entitled the Inspector to conclude that the existing use was mixed and that that use went beyond anything which had hitherto existed in the use being made of the premises by Ingrams. In those circumstances, he submits that the Inspector's report is not flawed by any error of law.
25. Those are powerful submissions but it seems to me, for the reasons that I have given, that there was material before the Inspector which ought to have alerted him to conclude that the appellant and those advising him had taken their eyes off the ball, no doubt because of the form in which the notice was couched, and had concentrated only upon the existence of the previous retail use and had asserted that their use was the same in the sense that it was the sale of goods manufactured or repaired on the premises, and that that was sufficient to entitle him to do what he was doing. In reality, what should have been gone into was a much more detailed question as to the extent and the precise nature of what had gone on before and what was going on now. In addition, it seems that what the Inspector saw persuaded him, effectively, that in his decision he could not accept the assertion that manufacture was going on of all bar a very small proportion of the items that were for sale on the premises.
26. I am persuaded that overall this appellant, for the reasons I have indicated, has not had from the Inspector's decision a fair determination of the issues. The upshot is that he is left with an enforcement notice against him which limits, to what may be an unfair extent, his ability to use the premises in the way that he wishes to use them. In those circumstances, it seems to me that I should allow this appeal and quash the Inspector's decision.
27. There will no doubt be a fresh consideration of the appeal. Whether that is in the form of written representations or whether now the appellant will decide that he wishes to have a full appeal will be a matter for him to consider. Suffice it to say that it seems to me that the matter should be reconsidered with the whole of the material evidence and all the material issues being considered. It should also be part of the consideration as to whether the enforcement notice requires him to do too much, even assuming it be upheld.
28. I make it clear that I am not saying, and nothing in this judgment must be taken to indicate, that the appellant will in the end be able to establish that he has not breached planning control in what he has been doing. It may well be that it transpires that he is unable to establish that the extent of his retail use of the premises is no different in planning terms from what Ingrams were doing. There is certainly material which was before the Inspector, and the observations made by him, which could indicate that that will, in the end, be the outcome. But as it seems to me, as I have said, he is entitled to have that matter considered on a full and proper basis and that has not hitherto been done.
29. MR HOCKMAN: Thank you, my Lord. I ask that the appeal be allowed accordingly, and may I respectfully suggest that your Lordship might wish to say that the costs of this appeal, including the costs before Sir Richard Tucker, should be paid by the respondent to the appellant and to be assessed in the usual way.
30. MR JUSTICE COLLINS: Yes, you cannot resist the application of costs Mr Palmer, can you?
31. MR PALMER: My Lord, no, not on principle. My Lord, there are two statements of costs.
32. MR HOCKMAN: My Lord, I am rather wondering whether your Lordship would mind very much simply ordering an assessment in this case rather than --
33. MR JUSTICE COLLINS: You have served a schedule, have you?
34. MR HOCKMAN: We have, but I am instructed to suggest that an assessment may be the appropriate course, my Lord. If your Lordship would like us to deal with them now I am happy to.
35. MR JUSTICE COLLINS: I do not mind. I always feel considerable diffidence in assessing costs because having been ten years on the bench I am slightly out of touch with the going rates.
36. MR HOCKMAN: The years have flown by, my Lord. As I say, my instructions are to ask, unless there is strong objection from the other side, that the matter in this case be deferred for assessment.
37. MR JUSTICE COLLINS: You have had some objections, I take it, to the amounts. I think in those circumstances it probably is better to say detailed assessment.
38. MR PALMER: My Lord, my instructions are to ask for a summary assessment here and now.
39. MR JUSTICE COLLINS: What do you say? Tell me where you want to chip away?
40. MR PALMER: My Lord, the overall sum amounts to some £23,000 which is over four times the sum that would have been claimed by the Treasury Solicitor.
41. MR JUSTICE COLLINS: I see, there are two. They are to be added together.
42. MR PALMER: My Lord, on the first --
43. MR JUSTICE COLLINS: This is before Sir Richard.
44. MR PALMER: There is one for the permission hearing, my Lord, yes, which on the second page has, under "other work" separate from any attendances or negotiations or work done on documents, some 30 hours conducted by a trainee solicitor.
45. MR JUSTICE COLLINS: That seems excessive, I am bound to say.
46. MR PALMER: On the second schedule in relation to today, similar heading, the same trainee solicitor has done a further 18.9 hours.
47. MR JUSTICE COLLINS: Well, there is hardly any extra work involved over and above that.
48. MR PALMER: Not, I think, from just general work on documents. There should not be that much. It was merely a question of annexing to the bundle the skeletons from below and serving the appeal bundle. I was lost to understand how anyone could have run up that.
49. MR JUSTICE COLLINS: I would agree, I am bound to say.
50. MR HOCKMAN: The problem that we are in is this. I do not think these costs schedules were exchanged until a day or so ago. I am not making any criticisms.
51. MR JUSTICE COLLINS: That seems to be fairly standard.
52. MR HOCKMAN: I am sure it is. I have no doubt that documentation exists which would explain --
53. MR JUSTICE COLLINS: I am sure it does.
54. MR HOCKMAN: My point is, my Lord, with all respect to my learned friend and those who sit behind him, I understand the desire to get these things dealt with.
55. MR JUSTICE COLLINS: I do not think I am in any position. Sometimes one can, but I think that it would not be fair to you or indeed to the Treasury Solicitor. Frankly, it looks to me as if these are much too high. On the other hand there may be -- I am not sure if the costs judge will be likely to be any more generous than my immediate reactions. Obviously, if costs are agreed that is one thing but I think, Mr Palmer, that it is difficult for me to reach a fair decision. I will not have sufficient information to enable me to do so. I am sympathetic to what you say and I think, on the face of it, they look much too high but you will have to persuade a costs judge.
56. MR PALMER: I am grateful. May I take this opportunity to apply for permission to appeal, my Lord?
57. MR JUSTICE COLLINS: It is facts. It is a one-off.
58. MR PALMER: It does involve a principle of wider importance. The scope of an Inspector's duty to call for further representations and indeed to consider grounds of appeal which have not been pleaded before him --
59. MR JUSTICE COLLINS: I consider he should.
60. MR PALMER: Well, in my submission I would not go so far as to say he must do --
61. MR JUSTICE COLLINS: No, he must consider whether the notice is excessive and that is --
62. MR PALMER: On the main ground I would submit that there is a principle -- well your Lordship has found there should have been a further opportunity given to --
63. MR JUSTICE COLLINS: That is what it boils down to really.
64. MR PALMER: My Lord, it does. The Secretary of State would wish to ask that the Inspector is entitled to determine an appeal on the basis of the representations before him --
65. MR JUSTICE COLLINS: I agree. Normally that is right but that is why I say it is an one-off. It is on the facts where the situation was as it was.
66. MR PALMER: My Lord, in that case, in case those instructing me wish to make an application to the Court of Appeal, may I ask that your Lordship direct that the 14 day time limit be extended until a transcript of your Lordship's judgment is available.
67. MR JUSTICE COLLINS: Yes. If you can persuade the shorthand writer to speed it up, it is up to you.
68. MR HOCKMAN: My Lord, my understanding is that the enforcement notice remains suspended as long as the Secretary of State does not demur from --
69. MR JUSTICE COLLINS: Yes. Technically he will not demur.
70. MR PALMER: Of course not.
71. MR JUSTICE COLLINS: It is no disadvantage to your client.
72. MR HOCKMAN: Thank you, my Lord.