England and Wales Lands Tribunal

[2002] EWLands ACQ_217_2000 (28 May 2002)

ACQ/217/2000

LANDS TRIBUNAL ACT 1949

Uses of land subject to enforcement notices – said to be lawful – Appeal withdrawn – Town and Country Planning Act 1990 ss.173(8), 175(4) and 285(1) – Validity cannot be challenged – Land Compensation Act 1961 rule (4) – value not to be taken into account

IN THE MATTER of a NOTICE OF REFERENCE

BETWEEN MR BERNARD ARTHUR SWOISH Claimant

and

EAST HAMPSHIRE DISTRICT COUNCIL Respondent

Re: Industrial Land

Bowleswood Farm

Grayshott Road

Headley Down

Hampshire GU35 8LA

Before: His Honour Judge Michael Rich QC

Sitting at 48/49 Chancery Lane, London WC2A 1JR

on Monday 27 May 2002

The following cases are referred to in this decision:

R v Secretary of State for the Environment ex p. Crossly [1985] JPL 632

Mr Swoish, the claimant appeared in person

Meyric Lewis instructed by Marrons, solicitors, appeared for the Acquiring Authority


 


DECISION

1. The claimant claims compensation on the compulsory acquisition of 0.5695 hectares of land with some barn-type buildings thereon, at Bowleswood Farm, Grayshott Road, Headley, Bordon. His claim is based on the contention that "the land has current and valid planning consent for Industrial Usage relating to the repair, storage and dismantling of motor vehicles by virtue of an Established User under the Town and Country Planning Act which came into force in 1992", and that at least one of the buildings was an agricultural building erected as permitted development under, as it is said, Class 6, Schedule 1 of the Town and Country Planning Act, 1977.
2. The parties have agreed that if, contrary to the above contentions, the subject land is to be valued as agricultural land, compensation should be assessed at £4,000. Mr P B Deacon FRICS who prepared a valuation report on behalf of the claimant would however have added a sum for the value of the buildings as salvage and for the reduced costs of clearance if the claimant undertook it himself. At the hearing the claimant indicated, nonetheless, that he did not propose to call Mr Deacon to give evidence, and was content that if the land was to be valued as agricultural land from which all buildings and vehicles had to be removed, the compensation should be £4,000.
3. On the basis of the claimant's contention as to permitted uses, the acquiring authority would value the land at £175,000. Mr Deacon on behalf of the claimant had put forward a figure of £300,000 and the claimant had given notice of a claim for the total extinguishment of the business which he claimed to have carried on upon the land. He had not however particularised that claim or exchanged any evidence in relation to it. In those circumstances, I invited the parties to agree that I should determine as a preliminary issue whether the land was to be valued as "industrial land" as claimed by the claimant, or as agricultural land. Such preliminary issue was agreed and it was further agreed that if I determine that the land was not to be valued as industrial land, I should award compensation of £4,000.
4. The claimant had, in response to a direction of the Tribunal dated 22 March 2002, agreed that enforcement notices had been served upon him and dealt with as set out in a schedule to the evidence of Mr Eggleton the Authority's planning officer. These he acknowledged in answer to me at the hearing included:

(1) Enforcement Notice 395 which alleged a breach of planning control on the subject land consisting of

"Without planning permission change of use of land from agricultural use for storage of vehicles materials and equipment and for the repair and breaking of vehicles".

and required the person served

"(i) to cease the unauthorised use; clear the land of all vehicles, materials and equipment unrelated to the permitted use of the land

(ii) to restore the land to a condition suitable for agricultural use".

The notice was expressed to "take effect on 14 January 1993, unless an appeal is made against it beforehand". An appeal was lodged but, as the claimant acknowledged, withdrawn on 5 March 1993.

(2) Enforcement Notice 397 which alleged a breach of planning control consisting of

"erection of 'buildings' not requisite to or reasonably necessary for agriculture".

and required the person served to

"(I) demolish the 'buildings' and foundations; remove all the resultant materials from the site;

(ii) clear and restore the land to a condition suitable for agricultural use".

The claimant acknowledged that the plan accompanying this enforcement notice showed all the buildings, including that which he claimed had been erected as permitted development, as being the subject of the alleged breach of planning control. The notice was likewise to take effect on 14 January 1993 unless an appeal was made. An appeal was likewise made, but withdrawn on 5 March 1993.

5. By reason of s.173(8) of the Town and Country Planning Act 1990 the notices were to take effect on 14 January 1993 subject however to s.175(4) which provides that where an appeal is brought the notice is to

"be of no effect pending the final determination or the withdrawal of the appeal".

Once the appeal had been withdrawn it could not be re-instated: R v Secretary of State for the Environment ex p. Crossly [1985] JPL 632. Thus the two notices took effect from the date of the withdrawal of the appeals.

6. The claimant seeks to challenge the effect of the notices on the ground that the matters alleged did not constitute breaches of planning control or that at the date when they were issued no enforcement action could be taken. By reason of s.285(1) the validity of these enforcement notices could not

"except by way of an appeal … be questioned in any proceedings whatsoever on any of the grounds on which an appeal may be brought".

The grounds of the claimant's proposed challenge are grounds within s.174(1) of the Act, and thus are precluded by s.285(1). The Tribunal cannot therefore concern itself with the merits of these grounds of challenge.

7. By Rule (4) of the Rules for assessing compensation under s.5 of the Land Compensation Act, 1961

"where the value of land is increased by reason of the use thereof or any premises thereon in a manner which could be restrained by any court or is contrary to law … the amount of that increase should not be taken into account."

Accordingly, I was able to tell the claimant, without calling on the acquiring authority, that even if he had been right that the uses upon which he relied had been established before 1993, or the building erected lawfully before the enforcement notice in respect of it, he was no longer able to rely on those matters to increase the value of the subject land.

8. I accordingly determine the compensation at £4,000 plus reasonable fees and costs for the valuer instructed.
9. Having announced my determination, I heard the acquiring authority's application for costs. They made an offer which exceeded the sum awarded, on 3 April 2002. I accordingly award the claimant his costs until 24 April 2002, and the acquiring authority their costs from that date, in each case to be the subject of detailed assessment by the Registrar if not agreed.

Dated: 28 May 2002

His Honour Judge Michael Rich QC