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
		30th September 2005

Friday, 30th September 2005

1. SIR MICHAEL HARRISON: This is an appeal under section 289 of the Town and Country Planning Act 1990 against a decision of the First Secretary of State's Inspector, dated 20th October 2004, relating to an enforcement notice that had been served on the claimant by the North Somerset District Council. It was, in fact, one of three enforcement notices served on the claimant by the District Council. The claimant appealed against all of them all and a public inquiry was held into those appeals which lasted for five days.
2. These proceedings relate to the enforcement notice in respect of land at the Old Forge, Lulsgate Bottom in Somerset. The other two enforcement notices related to two other sites, one of which adjoined the Old Forge site, but they are not relevant to these proceedings. The claimant appealed against the Old Forge enforcement notice on various grounds but, at the inquiry, the appeal was confined to the ground under section 174(2)(d) of the 1990 Act, which, in conjunction with section 171B(3), has the effect that a breach of planning control by a material change of use which occurred at least ten years before the issue of the enforcement notice, is immune from enforcement action.
3. The enforcement notice was issued on 15th October 2003. The breach of planning control alleged by the enforcement notice was:

"Without planning permission, unauthorised change of use of land from use for domestic curtilage to use as a car park for airport passengers and/or other paying customers and associated works, including the construction of a decked area."

4. The steps required to remedy the breach were:

"1. Cease parking all unauthorised non-agricultural vehicles on the land;

2. Remove all unauthorised non-agricultural vehicles from the land;

3. Remove all associated works, including all hard standings, and restore land to domestic curtilage."

5. In fact, as the Inspector found, the site consisted of a building used as a house and for bed and breakfast, another building accommodated two car repair bays and an office/reception area, and a forecourt area between those two buildings. The enforcement notice was, therefore, deficient in failing to mention those existing uses and it was agreed that it should be amended to reflect those uses in the description of the existing use. Further amendments were made by the Inspector after the inquiry, but they are contentious and form the subject of one of the grounds of appeal in this case.
6. The claimant's case at the inquiry was that the site had been used for commercial parking since as far back as 1989 and that the use was, therefore, immune to enforcement action. Besides calling a professional witness, he called eight witnesses of fact, including himself, dealing with the history of parking on the site. The Inspector remarked in paragraph 7 of her decision letter that, although there was no documentary evidence to show that a commercial car parking use had operated from the site for ten years, a number of witnesses had given evidence that the site had included some long-term parking use for in excess of ten years.
7. In paragraph 8 of the decision letter, the Inspector stated:

"The witnesses who gave evidence included those who have parked their cars at the appeal site for more than 10 years. There is one car parking receipt from as far back at 1989 but this was issued to Mr Hoy who was obliged to leave his car on the site until it could be taken away, as it had broken down, which seems to me to be more of a storage use than parking. Nevertheless, Mr Hoy explained that from that date he began to use the site for long term parking and said that his parents told him that they had similarly made use of the site. From the evidence given by witnesses, I consider that people have been parking at the appeal site for in excess of 10 years and that they either paid the Appellant's father or, in the case of business associates, there was sometimes payment by way of exchange of services."

8. That last sentence is important because the claimant maintains that it involves a clear finding that there had been commercial parking on the site for in excess of ten years.
9. In paragraph 9 of the decision letter, the Inspector referred to the limited size of the appeal site and stated:

" ... Having regard to its limited size, it does not seem to me that many vehicles would need to be parked for the use to be more than de-minimis and to amount to a further primary use. However, evidence from the witnesses varies as to the number of cars that were involved prior to the turn of the century when the use vastly expanded."

10. She then gave some examples of the numbers of cars from the witnesses' evidence and added, in the last sentence at paragraph 9:

"Furthermore, many of the witnesses agreed that, generally, they would have no reason to know for sure which cars were connected to which use on the site."

11. She continued in paragraph 10 as follows:

"From the evidence presented it is thus not possible to be sure how many cars were generally parked on the site and with what degree of regularity. Certainly historic photographs produced by the Council do not demonstrate any significant amount of parking but those are, as was accepted, only snapshots in time. Moreover, it does not seem to me surprising that little parking took place on the site whilst significant building work was being undertaken and I do not consider that that, in itself, would amount to a cessation of a use in planning terms. However, even if I were to accept the argument for the Appellant that the parking use has been much more than casual, intermittent and insignificant in nature, the change that took place about the turn of the century when the airport expanded was so immense that the nature of the parking business now being undertaken from the premises is, to my mind, materially different from that which took place before."

12. Although the Inspector went on to deal further with that change of use, I pause there because the claimant's first ground of appeal relates to the passages I have quoted.
13. The first ground of appeal was that the Inspector's ultimate decision wrongly extinguished the claimant's established lawful parking use of the site or, at the very least, she failed to reach a conclusion on whether it was an existing lawful use. The claimant relied heavily on the last sentence of paragraph 8 of the decision letter as a clear finding in the claimant's favour that the site had been used for commercial parking for in excess of ten years. It was submitted that the Inspector then extinguished that lawful established use by amending the enforcement notice to reflect the change of use which she said occurred at about the end of the century, without protecting the claimant's established use rights, contrary to what is known as the Mansi doctrine, which requires that enforcement notices should not take away existing use rights.
14. Mr Young, who appeared on behalf of the claimant, pointed out that the change of use identified by the Inspector would truncate the ten-year period so that it had to run from about 1990 to the turn of the century, but there was, in any event, evidence of commercial parking on the site from about 1989. Mr Young accepted that the Inspector had considered the Council's contention that the parking use was merely de minimis in paragraphs 9 and 10 of the decision letter, but he submitted that she failed to reach a conclusion on whether the commercial parking use which took place in the 1990s was de minimis. Instead, she had gone on to focus on the change of use at the turn of the century and had lost sight of the ten year point. Alternatively, if the last sentence of paragraph 8 of the decision letter was not a clear finding that the site had been used for commercial parking for at least ten years, it was submitted that the Inspector had failed to reach a clear conclusion on that subject. Mr Young stressed the importance of the need for clarity on that issue because of the potential subsequent risk of criminal proceedings.
15. Mr Maurici, on the other hand, who appeared for the First Secretary of State, submitted that the last sentence of paragraph 8 of the decision letter did not constitute a finding that there was an established commercial parking use of the site. He said that it was a finding that there was some evidence of some degree of commercial parking on the site for in excess of ten years. He submitted that paragraphs 9 and 10 of the decision letter, when read together, were directed to the issue of de minimis and that the first sentence of paragraph 10 of the decision letter held the key to it, namely that it was not possible to be sure how many cars were generally parked on the site and with what degree of regularity. In other words, the claimant had failed to discharge the burden of proving that the commercial parking use was more than de minimis. If the Inspector had found there to be an established parking use, she would have been required to consider the Mansi doctrine, but she did not do so because she had not found there to be a pre-existing use, and so, said Mr Maurici, she did not come back to it again in her decision letter.
16. I can well understand the claimant relying on the last sentence of paragraph 8 of the decision letter in support of the assertion that he had succeeded in establishing existing use rights for commercial parking on the site. In paragraphs 9 and 10 the Inspector is dealing with the issue of de minimis. She made points that go both ways, and in paragraph 10 of the decision letter she concluded that she could not be sure how many cars were parked on the site or how frequently.
17. She then started the last sentence of paragraph 10 by saying:

"However, even if I were to accept the argument for the Appellant that the parking use has been much more than casual, intermittent and insignificant in nature ...",

and then went on to refer to the turn of the century change of use. There is no finding by her that she had not accepted the claimant's argument. The informed reader of this part of the decision letter is left, at best, having to try and imply a conclusion. Performing that exercise, although I recognise the strength of the argument that the Inspector impliedly found that there was not an established commercial parking use of the site which was more than de minimis, it is by no means clear. In my view, it is wholly undesirable that a matter such as that should be left for the reader to try and imply from the decision letter. The claimant's whole case was that he had established use rights for commercial parking on the site. He can reasonably expect to have an express, clear finding on that issue. Otherwise, if the position is unclear, he does not know whether, if he were to continue with that type of parking on the site, he would be liable to criminal prosecution in the Magistrates' Court for breach of the enforcement notice. The arguments that have been deployed before this Court would have to be deployed before the Magistrates' Court as to what the Inspector had decided, including the claimant's assertion that the last sentence of paragraph 8 of the decision letter was a finding in his favour.

18. In my view, when an allegation of an established use right arises in an enforcement notice appeal, as it does in this case, the Inspector should make an express and clear finding about it and should not leave his or her finding to be implied by the parties. Otherwise, the appellant may be at risk of subsequent criminal proceedings.
19. Reading the decision letter as a whole in this case, I think it is very likely that the Inspector thought that the material change in use at the turn of the century meant that she did not have to return to deal with the ten year point because such parking on site as there was after that time formed part of the new primary use. Whether I am right in saying that or not, the fact is that she did not reach a clear conclusion on the ten year point, and she should have done so.
20. I would, therefore, remit the Inspector's decision in this case on account of her failure to make an express and clear finding on the main point raised by the claimant, namely whether or not he had established use rights to use the site for commercial parking.
21. I turn, then, to the second ground of this appeal, which differs significantly from that which was in the claimant's skeleton. The change follows an acceptance on behalf of the claimant that the issue of a material change of use is a matter of fact, not law. The second ground of appeal really falls into two parts.
22. The first part arises from paragraph 11 of the decision letter where the Inspector stated:

"The Old Forge now operates primarily as a reception facility for vehicles to be dropped off and collected by their owners. Two fields nearby, one the subject of notice C, were introduced in about 2001 to act as satellite sites, accommodating in the region of 500 cars. The Appellant or one of his employees move the cars to one or other of these sites, bringing them back again to the Old Forge just before they are due for collection. In my view, the reception and movement of cars off, and then back onto, the site introduces a new and significant element to the use which materially alters its character, even setting aside the massive increase in numbers accommodated. Whilst some cars might still stay on site, for example if they are only there for a day or two or the owners don't leave the keys, the number is tiny in comparison with the total number of vehicles dealt with. Nearly all are now moved which doubles the number of movements onto and off the site for each of those vehicles."

23. The first point made by the claimant under the second ground of appeal was that the Inspector wrongly based her conclusion relating to a material change of use on activity emanating from the satellite sites, which were outside the appeal site. I am quite clear that there is nothing in that point. The Inspector was perfectly entitled to take into account the relationship of the appeal site to the satellite sites because that relationship is relevant to the characterisation of the use of the appeal site.
24. Indeed, the Inspector said as much in paragraph 13 of the decision letter when she said:

"I accept that satellite sites do not form part of the planning unit under consideration but their use changes the nature of the business on the appeal site."

25. The second part of the second ground of appeal is that, if the Inspector was entitled to take into account the vehicle reception facility connected with the satellite sites as part of the change of use, she failed to take into account that there was such a facility on the site previously. In considering that submission, it is necessary to look at paragraphs 12 and 13 of the decision letter.
26. In paragraph 12, the Inspector stated:

"From my observations on site and from the evidence I heard, it would appear that the major part of the Appellant's business activities is now vehicle parking, although I accept that other uses have not ceased and accept that fluctuation can occur between uses without a material change of use occurring. A dedicated mini-bus is available to transfer customers to the airport and someone is employed to work night shifts on the premises which, I consider, is significantly different to the Appellant's father living on the site or another resident couple occasionally helping out. I have taken into account the claim for the Appellant that the previous and current parking uses share common characteristics in that there was always a reception facility for leaving and collecting keys etc; that some cars always remained on site for the duration of their stay and some were moved off; and that cars were left at the site by their owners and collected from that same site by their owners."

27. In paragraph 13 she stated:

"From the evidence that I heard, however, I do not consider that the cars were moved off the site with any degree of regularity before the introduction of the satellite sites. ... In my view, such occasional rearrangement is not comparable in nature to the organised operation now undertaken. In addition, it does not seem to me that one can ignore that part of the operation which takes place between owners delivering their cars to, and collecting them from, the site."

28. It seems to me, from those passages, that the previous reception facility was fully taken into account by the Inspector and adequately dealt with by her in concluding that it was not comparable to the present facility, which was of a wholly different character. That was a conclusion open to the Inspector which cannot be faulted.
29. The third ground of appeal relates to the Inspector's amendment of the enforcement notice after the Inquiry. A new alleged breach of planning control was substituted in the enforcement notice to read as following:

"Without planning permission, change of use of the land from a mixed use of residential, bed and breakfast and vehicle repair uses to a mixed use of residential, bed and breakfast, vehicle repair and vehicle parking, including vehicle parking reception facility, for airport passengers and other paying customers."

30. A new paragraph containing the steps required to be taken was substituted, which read:

"Cease the use of the land for vehicle parking and as a vehicle parking reception facility for airport passengers and other paying customers."

31. It follows that the alleged change of use had been changed from use of the appeal site as a car park to use of the land for vehicle parking including parking reception facility. It was the latter use which the enforcement notice required to cease. In dealing with that amendment in her decision letter, the Inspector stated at paragraph 16:

"I have taken into account the argument for the Appellant that the reception/holding facility is not specified in the notice and that the Council has a duty under s173 to specify the matters alleged to constitute a breach of planning control. However, to my mind a car parking use is sufficient description to encompass the use operated from the site including vehicle reception and transfer to other sites. The Council has not asked that the allegation in the notice be amended to include the reception facility and I do not consider that it is essential to do so. Nonetheless, I consider that it would be expedient to do so in the interest of clarity."

32. Mr Young contended that it was unfair and contrary to natural justice for the Inspector to amend the enforcement notice in such a fundamental way, whilst at the same time saying that it was not essential to do so and that it was only done for clarity. He suggested that the Council had not asked for the notice to be amended because they realised that the change went to the heart of the notice and would lead to it being withdrawn.
33. Under section 176(1)(b) of the 1990 Act the Inspector can amend the terms of an enforcement notice if she is satisfied that the variation will not cause injustice to the appellant or to the local planning authority. In this case, she addressed the issue of injustice in paragraph 17 of the decision letter, where she stated:

"I do not accept that the Appellant would be prejudiced by such an alteration. When the Council served the notice it was clearly seeking to attack the parking operation being undertaken on the site at the time and that would include all its various elements. I also do not agree that the Appellant has been denied the right to a fair trial and public hearing as provided for by Article 6 of the European Convention of Human Rights, which has been argued on grounds that the Council's case only became clear during the presentation of its evidence. It is for the Appellant to decide how to present his/her case and what witnesses to call. In my view, the Appellant with legal representation, albeit late in the day, had a full opportunity to demonstrate that a parking use of the same character as that now operating from the site had been undertaken for a period of 10 years. I do not agree that the Appellant was denied the opportunity to present evidence that cars have historically been moved off the site. To suggest that the Council was seeking to attack a former parking use of a quite different nature to that now taking place is untenable. I do not agree that the notice should be varied to require the cessation of the reception/holding element of the parking use and not the vehicle parking on site as in my view the two are not separable but are part and parcel of the one parking operation currently being undertaken from the site."

34. Mr Maurici submitted that there was no injustice as a result of the amendment of the notice. The reception facility point was mentioned in documents available before the Inquiry. The claimant had an opportunity to, and did, cross-examine the Council's witness about it, and he did not seek an adjournment. Mr Maurici submitted that both parties were given an opportunity to make representations about the suggested amendment and they also ran their cases on the alternative basis of the amendment. He contended that the Inspector had a wide discretion to amend, subject to injustice, and that it was not Wednesbury unreasonable to have done so.
35. Whilst I recognise that the parties had an opportunity to make representations about the proposed amendment, what concerns me is the Inspector's reasoning when making the amendment. She had found that the primary use of the site now was as a vehicle reception facility for cars to be parked at the two satellite sites, with the amount of cars parked on the appeal site being a tiny proportion of the total number of cars dealt with. That primary use is a wholly different use from the use alleged in the enforcement notice, which was use of the appeal site as a car park for airport passengers and other paying customers. Use of the site as a car park is wholly different from use of the site as a reception facility for cars to be parked elsewhere. It was, therefore, a major change to the breach alleged in the enforcement notice. In my view, the Inspector was wrong to conclude that the amendment was not essential. The case which the claimant had to meet was quite different from that alleged in the enforcement notice.
36. In paragraph 17 of the decision letter, the Inspector said that the claimant had a full opportunity to demonstrate that a parking use of the same character as now operating from the site had been undertaken for ten years. That is a misunderstanding of the claimant's case. The claimant's case related to commercial parking on the appeal site for a ten-year period, which, in view of the Inspector's conclusion about the material change of use, would have to run up to the turn of the century. It may well be that the approach of the Inspector in paragraph 17 of the decision letter is an indication why she did not reach any clear conclusion on whether the claimant had established ten years' use of the site as a car park because she appears to have treated it as part and parcel of the vehicle reception facility use, which was not what was alleged in the enforcement notice which dealt with the use of the site as a car park. Having found, quite understandably, that there had been a material change of use at about the turn of the century, she did not then consider whether there had been ten years' use of the site as a car park before that.
37. In my view, her treatment of the amendment as non-essential and solely for the purposes of clarity arises from her mistaken view that the use of the site as a car park is not materially different from the use of the site as a reception facility for parking elsewhere. She treated it all as part and parcel of the same use, whereas they are, in my view, two quite different uses. The result has been that the issue of an established use of the site as a car park for ten years has not been properly addressed and the claimant has thereby been prejudiced. I therefore find that there has been unfairness to the claimant in that way, which is really connected with the first ground of appeal but which arises out of the Inspector's reasoning relating to the amendment of the enforcement notice. I would, therefore, remit the decision so that the ten year user point can be adequately addressed in the light of the Inspector's conclusion relating to the timing of the material change of use and so that consideration can be given to the whole question of the amendment of the enforcement notice.
38. MR SHEPHERD: My Lord, I appear on behalf of the claimant. I apologise on behalf of Mr Young that he cannot attend.
39. SIR MICHAEL HARRISON: No, I quite understand that.
40. MR SHEPHERD: My Lord, I had a word with my learned friend in respect of costs. In light of your judgment, I am actually instructed to seek our costs to be assessed today. I hope my Lord has a copy of the statement of our costs.
41. SIR MICHAEL HARRISON: No. (Handed). Thank you very much. Mr Maurici, you have had a copy of this?
42. MR MAURICI: Yes, my Lord.
43. MR SHEPHERD: My Lord, the short point is, in the light of your judgment, and obviously you have upheld the appeal on the first and third grounds, it is my submission that we are entitled to our costs in full. Looking at the schedule, I would commend it to you as being a reasonable claim in respect of all of the work as set out. I would suggest that we are entitled to the full amount. My Lord, I hope that you have an amended copy there.
44. SIR MICHAEL HARRISON: Yes.
45. MR SHEPHERD: The full total actually as the £14,000 amount that we see on the third page. So I urge that we are entitled to our costs in full, as set out in the statement of costs.
46. SIR MICHAEL HARRISON: Mr Maurici?
47. MR MAURICI: My Lord, I do not resist the principle of costs, though, my Lord, I ask that the order be detailed assessment, if not agreed, rather than a summary assessment. My Lord, I say that for two reasons. One is that, in actual fact, because we had judgment today and full argument on Monday, this is a case that has lasted more than a day, and therefore the normal rule is detailed assessment.
48. SIR MICHAEL HARRISON: Yes, that normally happens, but it is not written in stone, is it? If it can be dealt with, then it saves time and cost.
49. MR MAURICI: Yes, indeed, but, my Lord, there are a number of queries we have about the costs bill. My Lord, one is the increases that have occurred between the May hearing that was aborted, when we also received a summary schedule of costs, and this hearing. My Lord, I will not go into it now unless my Lord decides that he will summarily assess. But, my Lord, there are a number of increases in a number of areas of costs and we do not see how such costs could reasonably have been incurred. Everybody was ready for trial in May and quite what happened between May and now, we simply do not know.
50. My Lord, the second point is that in relation to attendances on defendant interested parties, on the second page, there is no breakdown there of what was spent on which parties. My Lord, we would contest that we are not required to pay the costs incurred in relation to any interaction there has been between this claimant and interested parties, not least of all because, as I understand it, one of the interested parties did actually make an application for expedition to which we were not party, and we have no idea whether some of this cost relates to that application or not. So my Lord, for the reason that it is over a day and also that we have a number of points in relation to assessment, we suggest the proper order is detailed assessment if not agreed, rather than assessment today. If you are against me on that, I will have to come back and make my submissions as to costs.
51. SIR MICHAEL HARRISON: Thank you very much, Mr Maurici. I am bound to say, that seems reasonable on the face of it, Mr Shepherd. Do you resist it?
52. MR SHEPHERD: My Lord, my instructions are to resist. We say it does not have to be determined by way of detailed assessment because, in effect, we have slipped over into another day.
53. SIR MICHAEL HARRISON: There are a number of quite detailed issues which would have to be gone into.
54. MR SHEPHERD: My Lord, I have to accept that.
55. SIR MICHAEL HARRISON: Hopefully, the two responsible parties should be able to agree the matters, once those items have been discussed, without there having to be formal assessment, so saving costs.
56. MR SHEPHERD: Very well.
57. MR MAURICI: There is one other matter. I do not have to trouble you about permission to appeal because, my Lord, this is, effectively, a second appeal. Therefore, if I have to make that application, I have to make it to the Court of Appeal in any event. But what I would ask, my Lord, is it is open to you to extend the time for service of the Appellant's Notice. I would ask you to extend it until 14 days after the transcript becomes available. My Lord, the reason I say that is that my experience is that the client is much better able to make a decision about whether to appeal, having seen the judgment in full in writing. My Lord, very often it avoids the need to make a protective application to appeal because the client has had sufficient time to consider it and make an informed decision. I would also say, my Lord, it does not in any way affect the claimant because the enforcement notice, effectively, remains suspended pending the resolution of these issues, either on a remission or on further appeal to the Court of Appeal.
58. So my Lord, I would ask for the order to be time for the Appellant Notice suspended until 14 days after the transcript becomes available.
59. SIR MICHAEL HARRISON: Do you resist that?
60. MR SHEPHERD: My Lord, no.
61. SIR MICHAEL HARRISON: I think that sounds reasonable.
62. MR MAURICI: My Lord, the order needs to make clear, as I think your judgment does, that the remission is on appeal A only.
63. SIR MICHAEL HARRISON: Yes. In case that is not clear, the order should be that it relates to notice A.
64. MR MAURICI: Thank you, my Lord.
65. SIR MICHAEL HARRISON: I will extend time for the Appellant's Notice to 14 days after the time when the transcript becomes available.
66. MR MAURICI: Thank you very much, my Lord.
67. SIR MICHAEL HARRISON: Thank you both very much.