QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF MICHAEL WILLIAM HOWELLS||Claimant|
|(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT|
|(2) GLOUCESTERSHIRE COUNTY COUNCIL||Defendants|
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Mr Jonathan Moffett (instructed by the Treasury Solicitor) appeared on behalf of the 1st Defendant
Mr Peter Wadsley (instructed by Gloucester County Council) appeared on behalf of the 2nd Defendant
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The decision letter
1. Until 1992 the site was in agriculture use. (DL9)
2. From 1992 an area to the west of the yard and track was in use for inert waste activities. (DL13)
3. Between mid 1994 and mid 1995, the site was occupied as well by Dunmore Construction and therefore there was a material change of use to a mixed use for inert waste activities and a civil engineering contractors' depot, including the parking of vehicles and the storage of materials, plant and equipment. (DL16)
4. From January 1996, the site was occupied by Preece Contracts for lorry parking. That amounted to a material change of use to a mixed use for lorry parking, inert waste activities and a civil engineering contractors' depot. (DL 17)
5. In January 2002, Preece Contracts ceased to park their lorries on site but that did not amount to a material change of use. (DL19)
6. By November 2004, part of the site in use to the west of the yard track had been substantially extended west into a field that had previously been in use for agriculture. That created a new planning unit and opened a new chapter in the planning history of the land to the west of the track. There was a material change of use from its former mixed use for agriculture, inert waste activities and a civil engineering contractors' depot to a mixed use for inert waste activities and a civil engineering contractors' depot (DL19).
7. By mid 2005, the new planning unit was used solely for inert waste activities. That amounted to a material change of use. (DL19 to 20)
8. As a result, the Inspector found that the material change of use alleged in the enforcement notice had occurred less than ten years before the enforcement notice was used. (DL21)
"174. Appeal against enforcement notice
(1) A person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him.
(2) An appeal may be brought on any of the following grounds -
(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation ought to be discharged;
(b) that those matters have not occurred;
(d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;
(g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed.
"176. General provisions relating to determination of appeals
(1) On an appeal under section 174, the Secretary of State may -
(a) correct any defect, error or misdescription in the enforcement notice; or
(b) vary the terms of the enforcement notice,
if he is satisfied that the correction or variation will not cause injustice to the appellant or the local planning authority."
1. The Inspector exceeded his powers by adding an area of land to the plan annexed to the enforcement notice.
2. The Inspector acted in breach of natural justice by adding land not covered by the original enforcement notice without giving the parties the opportunity to comment.
3. The Inspector failed to consider whether the steps required to be taken by the enforcement notice should have been amended so as to preserve the lawful use as part of the planning unit.
4. Alternatively, the Inspector failed to give intelligible reasons as to why there was not a lawful use within the new area of land shown on the enforcement plan as varied.
"45. The appellant's case on ground (b) is that the area enforced against is too large because there is no evidence that the western part of the notice land has ever been subject to the alleged unauthorised use. The County Council do not dispute this point but say that they drew the area more widely in order to ensure they had covered all of the affected area."
The claimant accepts that that paragraph was an accurate summary of its position.
"An enforcement notice issued under section 172 of the Planning Act shall specify -
(c) the precise boundaries of the land to which the notice relates, whether by reference to a plan or otherwise."
One of the consequences of the plan attached to enforcement notice is that it defines the area in respect of which planning permission is sought if there is an appeal under section 174(2)(a) and defines the area of the deemed planning application.
"The Secretary of State may correct or vary a notice so as to direct it to the correct planning unit, though only to cut it down (and therefore probably not so as to bring within the requirements of the notice land not within the original notice) and only if there would be no injustice in so doing."
"88(4) On an appeal under this section -
(a) The Secretary of State may correct any informality, defect or error in the enforcement notice if he is satisfied that the informality defect or error is not material..."
Under section 176 of the Town and Country Planning Act 1990, the requirement of materiality has disappeared. Previously also, amendments could only be made in favour of the appellant. That requirement too has gone.
"The second thing that this decision shows, in my judgment, is that the law has progressed, both by the enactment of section 88A(2) and recent authority from the law that existed under the former section 87(4)(a) and the old decided cases, to the point where the pettifogging has stopped, where artificial and nice distinctions understood only by lawyers no longer prevail, and the Act can be read so that it means what it says, namely that the Secretary of State may correct any (which is my emphasis) defect or error in an enforcement notice if he is satisfied that the correction can be made without injustice to either party to the planning appeal."
That would suggest that, even under the amended section 88A(2) of the Town and Country Planning Act 1971, any deficiency in the notice could be corrected subject to a requirement of injustice.
Ground 2: whether there was any injustice or breach of the requirements of fairness
"Whilst an Inspector can reasonably expect parties at an Inquiry to explore and clarify the position of their opponents, if an Inspector is to take a line which has not been explored, perhaps because a party has been under a misapprehension as to the true position of its opponents, as in my view happened here, fairness means that an Inspector give the party an opportunity to deal with it. He need not do so where the party ought reasonably to have been aware on the material and arguments presented at the Inquiry that a particular point could not be ignored or that a particular aspect needed to be addressed."
Grounds 3 and 4
"The addition of lorry parking after January 1996 would have created a change in the character of the previous mixed use because, though both Dunmore Construction and the appellant also used this land to park vehicles, their parking appears to have been one ancillary element within an overall depot use. It was thus materially different to the primary vehicle parking use by Preece Contracts. I consider that because it caused a change in the character of the use of this land, the parking by Preece Contracts would have triggered a further material change in the use of the land after January 1996."
"Merely to cease one of the component activities in a composite use of the land would not by itself, in my judgment, ever amount to a material change of use."
Later on he said:
"But whether or not in the circumstances of the particular case there was a material change of use would be essentially a question of fact and degree."