England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		31 May 2002

Mr Justice Jacob :

General

1. This is an application pursuant to s.187B of the Town and Country Planning Act 1990 as amended ("the Act") for injunctive relief to prevent alleged breaches of planning control. The applicant is Buckingham County Council, the relevant local planning authority. The respondents are three companies. The principal respondent is the first defendant which accepts that it is owner of the relevant land within the meaning of the Act, s.336. The remaining defendants were at one time occupants of some of the land in question through arrangements with the first defendant's predecessors in title. They do not appear and, according to the Council, appear to have no interest in the result. They will, of course, be bound by that result because they are parties.
2. The land in question (I am not being precise here) lies close to the Thames at Little Marlow. It has a long and complex planning and use history. Once upon a time it was just farmland - the farm was called Westhorpe Farm. Some time in the 1930's quarrying work (for sand and gravel) was commenced. In 1952 (by which time the modern form of planning control had been introduced by the Town and Country Planning Act 1948) permission, subject to conditions, for quarrying over defined portions of the land was given. By then various permanent structures for use associated with the quarrying existed. More appeared over the years. A workshop was reconstructed and enlarged in the 1980's. The then landowner dishonestly represented to the planning authority that the new building was to be used for work associated with quarrying. In fact it was let to the third defendant who used it for general engineering works. An attempt by the authority, after much litigation, to prevent the engineering use, failed in 1999 when an inspector (Mr Wilkinson) refused to uphold an enforcement notice requiring cessation of the engineering activity.
3. So far as the remainder of the land is concerned, quarrying went on for many years but other uses (tipping, landfill, concrete crushing), some with and some without permission also emerged. There are piles of waste on various parts of the land - these have varied from time to time with the result that the shape of the land has varied over the years.
4. The authority has long been concerned with breaches of planning control. This action is concerned with no less than six enforcement notices covering various parts of the land. Some of the notices overlap in the sense that they apply partially or wholly to the same bit of land. Other notices are directed at discrete and distinct portions of land. I was told that because of the many planning disputes over the land over the years the Council had decided to use separate notices where they might have used a composite notice. This was so that if the landowner challenged some notices but not others, at least some control could be effected either meanwhile or, if a challenge was successful, ultimately.
5. Nothing turns on all this. Nor does anything turn on the fact that the authority seeks a composite injunction whose terms are derived from all the enforcement notices. Pragmatically and sensibly what is sought for by the composite injunction is a single and clear definition of what it is the defendants must do. In some aspects (for instance in the degree of resurfacing) the injunction seeks less than that called for by a particular enforcement notice. That does not matter. Only if a particular injunctive requirement was outwith (as the Scots say), any valid enforcement notice could there be an objection to it based on its composite nature. If it is acceptable to the planning authority for an injunction to require less than is specified in an enforcement notice, then that is that. All the landowner is entitled to is a clear definition of what it is he must or must not do and that nothing within the definition is outside any valid enforcement notices.

The legislation

6. Section 171A defines a breach of planning control:

“(1) For the purposes 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.

(2) For the purposes of this Act –

(a) the issue of an enforcement notice (defined in section 172); or

(b) the service of a breach of condition notice (defined in section 187A),

constitutes taking enforcement action”.

7. When the authority considers that that there has been a breach of such control it can issue and serve an enforcement notice pursuant to the provisions of s.172:

“172 (1) The local planning authority may issue a notice (in this Act referred to as an “enforcement notice”) where it appears to them –

(a) that there has been a breach of planning control.”

8. Section 173 defines what must be in an enforcement notice. Broadly it must specify the breach of planning control and tell the recipient clearly what it is he must do to comply. The relevant provisions say:

“173 (1) An enforcement notice shall state –

(a) the matters which appear to the local planning authority to constitute the breach of planning control; and

(b) the paragraph of section 171A(1) within which, in the opinion of the authority, the breach falls.

(2) A notice complies with subsection (1)(a) if it enables any person on whom a copy of it is served to know what those matters are.

(3) An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes.

(4) Those purposes are –

(a) remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place”.

9. The affected landowner is entitled to object to an enforcement notice by way of appeal to the Secretary of State. Section 174 provides for this:

“174 (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 concerned ought to be discharged;

(b) that those matters have not occurred;

(c) that those matters (if they occurred) do not constitute a breach of planning control;

(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;

(e) that copies of the enforcement notice were not served as required by section 172;

(f) that 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 or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;

(g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed.”

10. These grounds of appeal are wide. Moreover it is clear that on the appeal problems such as lack of clarity of the enforcement notice can be dealt with. Section 176(1) provides:

“176 [(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.”

11. For obvious reasons there is a set time within which an appeal may be launched (see s.174(3) and 172(3)) The combined effect of the two provisions is that the minimum period is 28 days from service of the notice. Nothing turns on this.
12. If no appeal is brought or an appeal is brought and determined, s.285(1) bites on an enforcement notice. It is called the "privative provision" and is of importance in this case. It reads:

“… the validity of an enforcement notice shall not, except by way of an appeal under Part VII, be questioned in any proceedings, whatsoever on any of the grounds on which such an appeal may be brought.”

13. If the landowner fails to comply with an enforcement notice then the enforcement provisions come into play. Section 179 creates a criminal offence of breach of an enforcement notice - the details of this do not matter here. What matters is the power conferred on a civil court to grant an injunction. This is contained in s.187B:

“(1) Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Part.

(2) On an application under subsection (1) the court may grant such an injunction as the court thinks appropriate for the purposes of restraining the breach”.

The Relevant Legal Principles

(a) The requirement for clarity - Miller-Mead and invalidity/nullity

14. The courts have drawn a distinction between two sorts of defect in a purported enforcement notice, invalidity and nullity. The well-known passage dealing with this is in the judgment of Upjohn LJ in Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196 at 226-7:

“Now, what happens if a notice does not comply exactly with those sections? As a matter of common sense, if it does not specify the steps to be taken to remedy the alleged breach of planning permission or the alleged failure to comply with the conditions with proper and sufficient particularity, the notice will not be operative. So, too, if subsection (3) is not complied with. Now, I think, is the time to draw the distinction between invalidity and nullity. For example, supposing development without permission is alleged and it is found that no permission is required or that, contrary to the allegation in the notice, it is established that in fact the conditions in the planning permission have been complied with, then the notice may be quashed under section 23(4)(a). The notice is invalid: it is not a nullity because on the face of it it appears to be good and it is only on proof of facts aliunde that the notice is shown to be bad: the notice is invalid and, therefore, it may be quashed. But supposing the notice on the face of it fails to specify some period required by subsection (2) or (3). On the face of it the notice does not comply with the section; it is a nullity and is so much waste paper. No power was given to the justices to quash in such circumstances, for it was quite unnecessary. The notice on its face is bad. Supposing then upon its true construction the notice was hopelessly ambiguous and uncertain, so that the owner or occupier could not tell in what respect it was alleged that he had developed the land without permission or in what respect it was alleged that the failed to comply with a condition or, again, that he could not tell with reasonable certainty what steps he had to take to remedy the alleged breaches. The notice would be bad on its face and a nullity, the justices had no jurisdiction to quash it, for it was unnecessary to give them that power, but this court could, upon application to it, declare that the notice was a nullity. That to my mind is the distinction between invalidity and nullity.”

15. For an enforcement notice to be a nullity - "waste paper" - it must be bad on its face. Mr Sefi, for the authority, suggested (though I am not sure why) that this meant you could only look at the very document itself, that was its "face". I do not think that can be quite right, though it will normally be so. In particular if an enforcement notice clearly cross-refers to another document (as for instance when it recites a condition contained in a planning permission) it would artificial to read the notice on its own. To understand the condition may require looking at the planning permission document from which it was taken. I do not read Upjohn LJ as precluding such a reference as an aid in construing an enforcement notice. On the contrary he refers to the "true construction" of the notice. "True construction" of one document can legitimately involve also reading another which is directly referred to in it. The point is of relevance here because some of the enforcement notices are based on breach of a condition in the 1952 planning permission. I think that can be read to understand the condition.

(b) An enforcement notice should not touch an established use - the Mansi doctrine

16. In Mansi v Elstree RDC (1964) 16 P&CR 158 an enforcement notice went too far. It happened in this way. The appellant had an established use (going back to pre-planning control days). He had a nursery and, as an adjunct to that business, nursery produce was sold from one of the glasshouses. He changed things so that the glasshouse was being primarily used for selling non-nursery produce. An enforcement notice was served requiring all use as a shop to cease. It was upheld on appeal. On a further appeal to the Divisional Court it was held that the Minister's decision went too far. Widgery J said:

“Mr Shaw’s other point, of course, is on very much stronger ground – indeed, it seems to me quite unanswerable – when he alleges that the notice in the form in which it was served went too far. On the Minister’s own finding, there was a very old established use affecting these premises for the sale of goods by retail. True that use is a limited and restricted one, but nevertheless the planning Acts gave no power to the local planning authority to restrict or remove that use, such as it was. It seems to me that when this matter was before the Minister, the Minister should have recognised that a notice requiring discontinuance of all sale of goods went too far and that he ought to have amended the notice under the powers given to him so as to make it perfectly clear that the notice did not prevent the appellant from using the premises for the sale of goods by retail, provided that such sale was on the scale and in the manner to which he was entitled in 1959, as the Minister himself had found. True that use was a subsidiary one, but nevertheless it should be protected and, in my judgment, this appeal should be allowed to the extent that the decision in question should be sent back to the Minister with a direction that he ought to amend the notice so as to safeguard the appellant’s established right as found by the Minister to carry on retail trade in the manner and to the extent to which the Minister has found it was carried on in 1959”.

17. Now it is to be observed that Mansi was concerned with a direct challenge to the terms of the enforcement notice. Such a ground of challenge is now specifically spelt out in s.174(1)(d). It is also covered by s.174(1)(f). In Mansi it was clearly assumed by all concerned that if the notice was not put right it would indeed, if enforced, prevent the old established use.
18. Mr Lindblom QC, for the defendants, conceded that if an enforcement notice went too far in the Mansi sense, and had become inviolate pursuant to the privative provision, s.285, it could not be contended that the notice was invalid. There is no scope for saying that an enforcement notice can be pro tanto ultra vires. Of course the court will do its best to construe an enforcement notice as not covering an established use - and may go very far in that regard (see Duguid v SSETR [2000] 4 PLR 107 and R v Harfield (1992) 2 PLR 23). But, in the end, if the notice when properly construed does cover a particular activity:

"The duty of the landowner is perfectly clear: if the enforcement notice has not been quashed, he must obey it" (per Lord Hoffmann in R v Wicks [1998] AC 92 at p.121F).

Lord Hoffmann said a little earlier:

"In my view the question in this case is likewise one of construction. What is meant by “enforcement notice” in section 179(1) of the Act of 1990? Does it mean a notice which is not liable to be quashed on any of the standard grounds in public law? Or does it mean a notice issued by the planning authority which complies with the formal requirements of the Act and has not actually been quashed on appeal or judicial review? The words “enforcement notice” are in my view capable of either meaning. The correct one must be ascertained from the scheme of the Act and the public law background against which it was passed.

In my view, when one examines Part VII of the Town and County Planning Act 1990, the scheme of enforcement of planning control which it exhibits and the history of its provisions, one is given to the conclusion that “enforcement notice” means a notice issued by the planning authority which is formally valid and has not been quashed."

19. What he said about the meaning of "enforcement notice" was in the context of criminal sanctions. But it is obviously equally true in relation to the civil sanction of injunctions. Mr Lindblom was right to make his concession.
20. I would only add on this point that I think the decision of Mr David Widdicombe QC (sitting as a Deputy High Court Judge) in Swinbank v SoS for the Environment [1987] JPL 784 must be understood as a case where the court construed an enforcement notice so as not to cover an established use. It is true that he used the expression pro tanto ultra vires of an enforcement notice which might cover an established use (or a use which did not require planning permission) but I do not think, certainly after Wicks, that such a concept is valid.

(c) It may be legitimate for a condition in a planning permission to restrict an established use

21. This proposition is established by Kingston LBC v SoS for the Environment [1973] 1 WLR 154. Permission to rebuild a station had been given subject to a condition that some associated land was made available for car parking. After the rebuilding British Rail did not use the land for car parking. When served with an enforcement notice it alleged that the condition affected its existing use rights - that there were being taken away without compensation. The argument was rejected. Lord Widgery CJ referred to the statutory power to impose conditions on the grant of planning permission (then s.30(1) of the Town and Country Planning Act 1971) and went on:

"These are wide words; they clearly on their face entitle the local planning authority to impose conditions which affect land not the subject of the application itself, and which to the restriction of the past user or the removal of existing works. Although they are wide it has been recognised for a long time that they are subject to certain restrictions. The two principal restrictions which the courts have placed on those words are first that a condition is invalid as been contrary to law unless it is reasonably related to the development in the planning permission which has been granted. …. The second restriction on those words which the courts have adopted in recent years is that a condition which is so clearly unreasonable that no reasonable planning authority could have imposed it may be regarded as ultra vires and contrary to law and treated as such in proceedings in this court."

(d) Section 187B confers a discretion on the Court.

22. Section 187B(2) says the "court may grant such an injunction as the court thinks appropriate." It is clearly discretionary and no one disputes that. But upon what principles is the discretion to be exercised? I turn first to the authorities: In R v Basildon DC [1996] JPL 866 Carnwath J said:

“… the essence of the section 187B procedure was to achieve a speedy resolution of a planning problem. The Courts had repeatedly emphasised that the injunction proceedings were not be used as an opportunity to re-argue the planning merits of the case which were matters for the planning merits of the case which were matters for the planning authority and the Secretary of State (see Mole Valley DC v Smith 24 HLR 442, Hambleton District Council v Bird [1996] JPL 675.”

23. His view perhaps carries particular weight because he was author of the 1989 report Enforcing Planning Control which led to the introduction of the provision.
24. Prior to the Human Rights Act the authorities all indicated that an injunction should not be refused because it would cause considerable hardship to a defendant. And the courts emphasised that it was not their function to review or consider what were essentially planning matters - the job had been entrusted to others. The leading authority was Hambleton DC v Bird [1995] 3 PLR 8. The Court of Appeal held that the trial judge exercised his discretion to refuse the injunction on wrong principles when he took into account the defendants' special social need to retain mobile homes on a site in contravention of planning control and an enforcement notice. An earlier decision of the Court of Appeal, Mole Valley DC v Smith [1992] 3 PLR 22 was to like effect. I do not go to these cases in detail. They are reviewed (and the important passages cited) in the latest decision of the Court of Appeal, post the Human Rights Act 1998. That case is S.Bucks DC v Porter [2002] All ER 425. It is upon what was said in this case that Mr Lindblom based much of his argument. Accordingly I turn to consider it in more detail.
25. The Court was concerned with four parallel cases, all involving gypsies living in mobile homes on land in breach of planning control and enforcement notices. Applications for s.187B injunctions were made. The defendants invoked Art.8(1) of the ECHR, claiming that enforcement by way of injunction was an interference with their right to respect for their private and family life and their home. Simon Brown LJ, with whom the other members of the Court agreed, held that Art.8(1) could indeed be invoked. He commenced his judgment by pointing out that "at the heart of these appeals lies Art.8. He said:

"the question ultimately arising in these cases is, therefore, whether the interference is 'necessary in a democratic society' i.e. whether it answers a 'pressing social need' and in particular is proportionate to the legitimate aim pursued."

26. He went on to point out, of course, that the question was actually not one for the Court of Appeal itself - which was only concerned to consider whether the judges below had correctly directed themselves.
27. After a very full review of the cases, Simon Brown LJ then stated his views. I repeat them nearly in full because it is to these that Mr Lindblom attaches so much importance:

“[38] I would unhesitatingly reject the more extreme submissions made on either side. It seems to me perfectly clear that the judge on a s 187B application is not required, nor even entitled, to reach his own independent view of the planning merits of the case. These he is required to take as decided with the planning process, the actual or anticipated breach of planning control being a given when he comes to exercise his discretion. But it seems to me no less plain that the judge should not grant injunctive relief unless he would be prepared if necessary to contemplate committing the defendant to prison for breach of the order, and that he would not be of this mind unless he had considered for himself all questions of hardship for the defendant and his family if required to move, necessarily including, therefore, the availability of suitable alternative sites. I cannot accept that the consideration of those matters is, as Burton J suggested was the case in the pre-1988 Act era, 'entirely foreclosed’ at the injunction stage. Questions of the family’s health and education will inevitably be of relevance. But so too, of course, will countervailing considerations such as the need to enforce planning control in the general interest and, importantly therefore, the planning history of the site. The degree and flagrancy of the postulated breach of planning control may well prove critical. If conventional enforcement measures have failed over a prolonged period of time to remedy the breach, then the court would obviously be the readier to use its own, more coercive powers. Conversely, however, the court might well be reluctant to use its powers in a case where enforcement action had never been taken. On the other hand, there might be some urgency in the situation sufficient to justify the pre-emptive avoidance of an anticipated breach of planning control. Considerations of health and safety might arise. Preventing a gypsy moving onto the site might, indeed, involve him in less hardship than moving him out after a long period of occupation. Previous planning decisions will always be relevant; how relevant, however, will inevitably depend on a variety of matters, including not least how recent they are, the extent to which considerations of hardship and availability of alternative sites were taken into account, the strength of the conclusions reached on land use and environmental issues, and whether the defendant had and properly took the opportunity to make his case for at least a temporary personal planning permission.

[39] Relevant too will be the local authority’s decision under s 187B(1) to seek injunctive relief. They, after all, area the democratically-elected and accountable body principally responsible for planning control in their area. Again, however, the relevance and weight of their decision will depend above all on the extent to which they can be shown to have had regard to all the material considerations and to have properly posed and approached the Art.8(2) questions as to necessity and proportionality.

[40] Whilst it is not for the court to question the correctness of the existing planning status of the land, the court in deciding whether or not to grant an injunction (and, if so, whether and for how long to suspend it, is bound to come to some broad view as to the degree of environmental damage resulting from the breach and the urgency or otherwise of bringing it to an end. In this regard the court need not shut its mind to the possibility of the planning authority itself coming to reach a different planning judgment in the case.

[41] True it is, as Mr McCracken points out, that, once the planning decision is taken as final, the legitimate aim of preserving the environment is only achievable by removing the gypsies from site. That is not to say, however, that the achievement of that aim must always be accepted by the court to outweigh whatever countervailing rights the gypsies may have, still less that the court is bound to grant injunctive relief (least of all immediate injunctive) relief. Rather I prefer the approach suggested by the 1991 circular; the court’s discretion is absolute and injunctive relief is unlikely unless properly thought to be ‘commensurate’ – in today’s language, proportionate”.

28. What Mr Lindblom seeks to get out of S.Bucks is that when exercising its discretion the court should have regard to the entire planning history involved - he fastens upon the words "importantly, therefore, the planning history of the site." I think he is taking the words out of context, thereby giving more importance to planning considerations than is justified. The point of S.Bucks was that there was a clash of two positive rights, Art.8(1) on the one hand and the right of the authority to enforce planning control on the other. In that context the court has to consider how important the planning considerations are. It is a question of proportionality. I do not read Simon Brown LJ as saying that in cases not concerned with anything other than what one might call routine planning considerations, the court should go all over the planning history. It is true that he said that the "Hambleton approach is difficult to reconcile" with a 1991 circular which he preferred. That circular says that the court has an absolute discretion and that an injunctive relief will have to be a "commensurate remedy in the circumstances." None of that goes so far as to say that the court should be invited to go back over the planning history to see whether it agrees with it.
29. As I see it the position can be summarised thus:.

(1) Unless a purported enforcement notice is not such a notice at all ("waste paper" à la Miller-Mead) once it is unappealed and unquashed, it is protected by s.285. No-one can say it is invalid "pro tanto" (Wicks).

(2) Prima facie the court, when asked to exercise its discretion under s.187B to grant an injunction to enforce compliance with an enforcement notice, should do so. The planning authority is the democratically elected body entrusted with planning and planning control, not the court. The court uses its coercive powers in aid of that body's task. It does not sit in judgment on whether the planning authority's decision to enforce planning control was wise.

(3) It is for the respondent to demonstrate why an enforcement notice beyond challenge should not be enforced by way of injunction.

(4) The court will look at all the circumstances to balance the scales - whether there is enough weight in the no injunction scale to outweigh the injunction scale. In the injunction scale is the fact that the planning authority has not only issued the enforcement notice but also decided to apply to the court for an injunction. Moreover the court should take into account that failure to enforce may mean a continuing criminal offence under s.179. The respondent needs to put a heavy weight into the no injunction scale to outweigh that lot. Art. 8-type positive rights are the sort of thing needed. The counterweight must be sufficiently heavy that, if the injunction were granted, the court would not be willing to enforce it (see per Simon Brown LJ at para.38). Mere planning considerations are unlikely to be heavy enough, particularly points which could have been raised to challenge the notice itself.

30. It is in that context that the court would have to weigh a Mansi-type point. Take, for instance, the Mansi facts themselves but where the enforcement notice had not been challenged and, on its true construction, extended to the use of the shop ancillary to the nursery. Suppose the authority sought an injunction to stop the use of the greenhouse as a shop in totality. The court, in its discretion, might merely confine the modern-day Mansi to that ancillary use. Such a case would have to be very clear. And even then the court would have to look at all the circumstances, including why the landowner did not challenge the extent of the enforcement notice and what practical effect enforcement of the notice in full might have. I add this last point because do not think it would be right to look at an alleged established Mansi right of use merely in the abstract as a matter of planning rights and duties. The Court would need to know what the actual effect of full enforcement might be, before it could properly consider whether to decline such enforcement.
31. I turn to consider the individual enforcement notices:

Enforcement Notice No 1

32. This was issued in December 1991 and was appealed to an Inspector. The notice was upheld subject to variation. The alleged breach of planning control was:

“the making of an unauthorised change of use of the land edged red on the attached plan No 2 from mixed use of a waste tip, make and land ancillary to mineral working, to use for the storage and deposit of soils and other waste materials above original or approved ground levels.

33. The notice as amended specified a number of required steps. Steps 2 and 3 are the important ones:

“2. Not later than 17 September 1993 all soils and other waste materials stored or deposited above the levels shown on plan west/3/a/REV1, annexed hereto shall be removed.

3. Sub-soil and top soil shall be spread over the area from which waste materials had been removed in accordance with step number 2 such that there is an ascending order 0.3m of sub-soil and 0.15m of top soil placed over the waste material in such a manner that the surface of the top soil conforms with the approved or original ground level, whichever is appropriate.”

34. The Council do not seek enforcement of step 3 to its full extent but only to a lesser extent so as to be consistent with other of the enforcement notices.
35. It is not suggested that the enforcement notice is so vague that it falls within the Miller-Mead doctrine. What is suggested that the notice, when read with the plan, does not indicate with sufficient precision what is to be done and that the court ought refuse to enforce the notice because of that lack of precision. I confess I do not follow this in principle. If the notice is too vague, then it is “waste paper”. If it is not, then it is valid. That carries with it by necessary implication that it is clear enough to be enforceable. Once that is so, then that is that, whether the enforcement is by way of injunction or criminal prosecution.
36. Here the problem is alleged to arise from the plan referred to in step 2. There is now an agreed copy of this, called in the proceedings Plan 8. It is suggested that there is uncertainty of land form and gradient throughout the site to comply with contours on Plan 8. It is particularly complained that there are no cross-sections to guide the reduction in levels.
37. I have no evidence that a skilled surveyor would have difficulty in complying with step 2. The submissions as to uncertainty were made by Counsel. I do not profess to be an expert in reading plans. It seems to me that if a challenge of this sort is to be made it would have to be supported by expert evidence. After all this Plan 8 was arrived at after a full planning appeal and ultimately with the consent of the parties. It is not for an unskilled judge to read plans just as it not for an unskilled judge to “construe” a photograph (cf. van der Lely v Bamfords [1963] RPC 61 at p.71 per Lord Reid).
38. For what it is worth, however, I see no particular difficulty in reading the plan. On the eastern side there is to be a mound rising to 30.5m. Contours are shown at 30m, 29.5m, 29m and 28.5m. There is a dotted line showing a 29.5m contour. There is also another 29.5m contour. So far as I can see between those two the land should be approximately flat. Mr Sefi indicated he did not really mind whether it was flat or sloped. Obviously the land should slope between the contours shown – the fact that a precise slope is not shown by cross-sections is neither here nor there. All that means is that the precise slope does not matter.
39. There is also a complaint that some of the contours appear to peter out. For instance the dotted line showing the 28.5m when it comes to what is known as the “lozenge” described on the drawing as the “permitted working stockpile”. But again I cannot see any real difficulty here. There is no evidence that in that area as it stood at the time anything needed doing. Since the plan was drawn there have been unauthorised deposits which may have made it more difficult to work out what to do now. That can hardly be a matter which can be prayed in aid by the defendants. They stand in the shoes of their predecessors in title. It cannot be open to anyone to indicate that an enforcement notice has become more difficult to comply with or understand because of their own or their predecessors acts in breach of planning control. Whatever has been dumped on the area near the lozenge must be removed.
40. In any event as the matter proceeded it was clear that the sensible thing to do was for the Council to indicate, preferably in consultation with the defendants, on a detailed plan what exactly should be done.

Enforcement notice number 2

41. This ceased to be of importance because of an agreement between the parties, which reads as follows:

“1. In this action the claimant does not seek injunctive relief in aid of enforcement notice 2.

2. The first defendant accepts that the deposits within the land subject to enforcement notice 2 which are waste whether or not processed are waste deposits within the meaning of waste materials in enforcement notice number 1.

3. The claimant proposes re-amendment of proviso (ii) in paragraph 7 of the amended Claim Form to substitute 1,500m² for 1,000m² .”

42. This last point relates to the lozenge. There was some minor dispute at one point about the size of this. The Council, in order to overcome this, accepted it can be treated as 1,500m² (the maximum size contended for) and that its precise location can be defined with discussion.

Enforcement Notice Number 3

43. This is for breach of a condition 4 of a planning permission which was given on 29 September 1952. The enforcement notice reads as follows in specifying the alleged breach of planning control:

“On 29 September 1952, planning permission was granted by the Council under application reference number WR/165/48 for the excavation of stand and gravel subject to conditions. One of those conditions, namely Condition 4 was as follows:

“The existing plant and equipment shall not be removed from its present location without the consent of the Local Planning Authority, and upon the completion of working shall, together with all buildings, huts or other structures on the site and all gravel and other materials about the site, except where expressly permitted to remain by the Local Planning Authority, be removed from the site and the land covered with sufficient top soil to ensure natural growth and cultivation.”

It appears to the Council that there has been a breach of planning control which constitutes a failure to comply with the above condition because the sand and gravel extraction is complete and may not be resumed as planning permission has lapsed under the terms of the Environment Act 1990. However, the buildings, structures and other materials remain without express permission from the Local Planning Authority.”

44. The notice sets out four steps to remedy the breach of planning control. The key step is step 1. This reads:

“Remove the buildings, huts and other structures on site, including the weighbridge and storage bays and all associated plant and equipment from the land”.

45. Steps 2, 3 and 4, involving regrading, ripping and covering “the land.” The steps were at one time seen by the defendants as covering the entire site of the farm because the plan annexed to the enforcement notice shows the whole farm outlined in red and the steps defined relate to “the land”. In the course of argument, however, I indicated that that was an unreasonable construction. The condition related to removal of buildings and it seemed to me that the reference to regrading, ripping and covering related to that portion of the land from whence the buildings to be removed had gone. Mr Sefi on behalf of the Council accepted that. It is now common ground that steps 2, 3 and 4 relate only to the land from on which the buildings to be removed stand and its the immediate edges.
46. The document called Plan 5 before me is now agreed to be an effective reproduction of drawing WR/165/48. Mr Lindblom’s principal point relates to the word “site” in condition 4. Plan 5 is dated about 1950 or 1951. It shows a number of coloured areas. In none of these are there any buildings shown. Nor are there any buildings on that land as it stands today. What the Council want removed, namely the workshops, the oil store, the canteen, the weighbridge, the conveyor belt, grading machine and hopper and so on, are all outside the coloured area of Plan 5. So, he says, if one looks at the enforcement notice with the aid of the only plan referred to in it, there is complete uncertainty as to the site referred to in step 1 and hence as to what buildings, if any, are to be removed. Moreover, he says the enforcement notice goes beyond anything that might reasonably be required to enforce the condition, which relates as he submits it does, to buildings outside the land subject to the condition. He reinforces his argument by pointing out that there was Government guidance at the time of the 1952 application indicating that there was a need for clarity in relation to conditions. He reinforces his argument, in a manner which I consider in more detail below, by reference to condition 5 of the 1952 planning permission.
47. When the proposition was advanced I had some difficulty in understanding it. Plan 5 shows the position in 1952. There are no buildings on the coloured areas. This is hardly surprising – they are the actual quarry areas. Of course there were no buildings there. Nor were any envisaged. There were buildings in an adjacent area however. They were plainly buildings used in association with the quarrying activity which had already commenced by then. The condition was obviously aimed at these. Briefly it seemed to me that there might be a problem here – how far did “the site” extend? Where did it end, if not at the perimeter of the coloured areas? Mr Sefi made the answer clear in reply. He took me to the 1952 permission itself. This permitted “excavation of sand and gravel at West Thorpe Farm, Little Marlow, Bucks in accordance with your application dated 4 October 1950 and the plans and particulars accompanying subject to the following conditions”. It was a drawing number 346/1 which accompanied the application. This shows an area coloured brown where the buildings used in conjunction with the quarrying were contained. Even though they existed already, it is clear that the condition requiring their removal following the cessation of the permitted quarrying was legitimate, being in accordance with the principles referred to in Kingston.
48. Given that there are no buildings in the coloured area in Plan 5, that the condition is plainly referring to existing buildings and that those existing buildings are shown on the plan forming part of the application for planning permission, it seems to me obvious that it is the buildings on the brown land which are referred to as being on “the site”.
49. In this connection it seems to me entirely legitimate to use the original planning permission and any accompanying drawings as an aid to the construction of the enforcement notice which itself cross refers to condition 4 of the planning permission. At the very least it is legitimate to look at the planning permission and accompanying plans if there is any doubt as to the meaning of “the site”.
50. Overall I think any fair-minded reader would understand exactly what the position was. Permission was being given to extract sand and gravel. The order in which there was to be extraction is specified on Plan 5 which shows the order by the use of different coloured areas. The buildings, the subject of the condition, are the buildings that were used as an ancillary to the quarrying. When the quarrying stopped the buildings were to go. That included not only the buildings that were already there but also any that had been put up for the purpose of quarrying.
51. I do not see that Mr Lindblom’s reference to the government guidelines of the day assists him. The government wanted clarity of conditions. That does not mean condition 4 is unclear.
52. I should briefly mention Mr Lindblom’s point about condition 5, which reads as follows:

“The buildings at the southern end of the main lake adjoining the railway shall be removed within three months within the date of this consent”.

53. His point is that these buildings are outside the coloured areas on Plan 5. So, he says, when the authors wanted to refer to a building outside the coloured areas they did so expressly. Mr Sefi answered that effectively by pointing out that removal of these buildings was required within three months of the grant of the planning permission. Therefore, condition 5 had to be a separate condition. There is no implication that any other building to be removed at the end of quarrying had to be within the coloured areas of Plan 5.
54. Mr Lindblom’s next point was that in any event the nature and identity of the buildings to which condition 4 applied was in some way uncertain. As Mr Sefi pointed out it was not shown that if you went to the land with a plan in your hand you would have any difficulty in identifying the buildings to be removed. This point is simply not made out.
55. I do not see any difficulty in enforcement of this notice. I would only add that it was common ground that the “lozenge" is to be excluded and that the requirement of regrading, ripping and covering relates only to the area from which the buildings have been removed and its immediate curtilage so as to bring the land into line with the surrounding land.

Enforcement Notice Number 4

56. This is also based upon breach of condition 4 of the 1952 consent. It is aimed at a bit of land which was called “the spoon”. The spoon is outside any of the coloured area on Plan 5 but is within the brown area on Plan 3. It particularly covers the workshop area and oil stores shown on Plan 8. The steps required are essentially removal of the buildings with consequential regrading, ripping and covering.
57. Mr Lindblom’s first point is the same as that in relation to enforcement notice 3, namely that the area of land referred to is outside the coloured land on plan 5. I reject that point for the same reasons I have rejected it in relation to enforcement notice 3.
58. His second and third points relate to the past planning history of the workshop. The basis of the points could have been taken on an appeal against the enforcement notice. What is suggested is that there is a Mansi-type defence to this enforcement notice. For the reasons I have given I do not regard this as an absolute defence in any event. The enforcement notice stands unquashed and unchallenged and is protected by section 285. The most that Mr Lindblom can ask is that the alleged established use be taken into account in exercising the court’s discretion. He can have no absolute defence.
59. I turn to the basis of Mr Lindblom’s point. In the 1980s the use of the workshop ceased to be ancillary to the quarrying activity. The then landowner let it to a Mr Brown or his company for the use as a general engineering workshop. The workshop was rebuilt for this purpose. The planning authority made enquiries as to what was going on and were told that the rebuilding of the workshop was for uses ancillary to the quarrying activity. That was a downright lie by the landowner. As a result of that lie the authority did not take enforcement action at the time and allowed the building to be reconstructed. The authority did not know about Mr Brown’s activities or those of his company. In December 1995 an enforcement notice (not one of those forming the basis of the present application) was issued alleging unauthorised change of use and requiring cessation of the use of the land otherwise than for the purposes ancillary to the lawful use of the land for mineral extraction or agriculture and consequential matters. After various bits of litigation which do not matter, an appeal was heard by an inspector, Mr Wilkinson, in the summer of 1999. The appeal was by Mr Brown and his company, not the landowner. The inspector held that the lies told to the planning authority were not anything to which Mr Brown or his company were a party. He held that use an engineering workshop commenced in 1985 and that the alterations to the building had been made in 1986. In relation to the latter he said:

“I do not believe that this changed in 1986 when the alterations to the building were carried out, and the building works themselves are, of course, beyond enforcement action because the time that has elapsed. This last point is accepted by the Council.”

60. The inspector is here referring to the limitation provisions contained in section 171B of the Act. There is a four-year bar against enforcement action in the case of building without planning permission (section 171B(1)). In the case of other breaches of planning control there is a ten-year period beginning with the date of the breach (section 171B(3)). There is also a special provision contained in sub-section 4. This extends the period if attempts have been made to do something about it within the period.
61. What Mr Wilkinson had to decide is whether the enforcement notice was in respect of a matter protected by section 171B(3). He was observing in passing that the rebuilding of the workshop was protected by the four-year period and the change of use by the ten-year period. On that basis he upheld the appeal in respect of the enforcement notice.
62. Mr Lindblom seeks to elevate this to a determination that nothing can be done about the building now. He says the engineering use is now an established use like that of Mr Mansi and no enforcement notice can touch it. I disagree.
63. The enforcement notice is based upon a failure to comply with condition 4. The enforcement notice gives the reason why; it is:

“Because the sand and gravel extraction is complete and may not be resumed as planning permission has lapsed under the terms of the Environment Act 1990.

The notice specifically recites that “the above breach of planning control has occurred within the last 10 years”.

64. There is no suggestion that the limitation periods of the Act apply to this breach of planning control. Moreover if they did, the time to take the point would have been on appeal. There is no suggestion that Mr Wilkinson in dealing with a different enforcement notice concerning change of use had any power to deal with the condition and this enforcement notice. Mr Wilkinson’s reference to a concession by the Council must be understood in context. It was in the context of the enforcement notice with which he was concerned. Mr Sefi tells me he never made any concession about condition 4 ceasing to apply. I accept what he says as Counsel.
65. Moreover, it would make no difference if he had conceded that condition 4 did not apply. There is no question of estoppel or the like. It is well established that a condition can touch an established use, see e.g. Kingston. That is all that is happening here.
66. There are further reasons why I refuse to exercise my discretion to withhold an injunction to enforce enforcement notice number 4. Firstly, the court must be supplied with all the facts. There is no evidence that enforcement would affect Mr Brown or his companies. As I have indicated they are playing no part in these proceedings. There is no evidence that their activities continued in the workshops. Secondly, such “protection” as the engineering use might have was obtained by the fraud of the first defendant’s predecessor’s in title. There is absolutely no reason why equity should protect a benefit obtained by fraud and every reason why it should not.
67. Mr Lindblom puts his points another way. He says that the enforcement of the notices amounts to an indirect attack of a protected use. So the court’s discretion should not be exercised as to grant injunctive relief. That appears to be the same point put another way and I reject it for the same reason.

Enforcement Notice No 5

68. There is no real point on this. It is now common ground that it does not apply to the lozenge. It applies to the area around the lozenge which was used for buildings, car parking and the like, the use being ancillary to a waste processing operation being conducted as an unpermitted change of use. What matters is step 2, removal of a portacabin and all vehicles, plant and machinery stored in connection with the waste processing operation, except for any material not required for the lawful use of the land under the general permitted development order. As I understand it the parties’ discussions will include quite what should be done here.

Enforcement Notice No 6

69. This is again based upon condition 4. It relates to a different part of the site shown on the plan as a hatched area. This includes, but is not limited to, the lozenge. The Council is not seeking enforcement as far as it applies to the lozenge. The notice is valid.
70. In the result all the notices are valid. There is no counterweight tipping the balance against enforcement by way of injunction. Simon Brown LJ said the judge should not grant injunctive relief unless he is prepared to contemplate committal for breach. I contemplate with equanimity committal for breach of an injunction framed to enforce these notices. I will hear counsel as to the precise form of that injunction and other matters.