SS for the Environment, Transport and Regions v and Oxfordshire County Council [2001] EWCA Civ 1560

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HH JUDGE RICH
[2001] EWCA Civ 1560Case No Case No: C/2000/3167Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Friday 26 October 2001
Between
SS for the Environment, Transport and RegionsAppellantsand Oxfordshire County Counciland Wyatt Brothers (Oxford) LtdRespondents
Before
Lord Justice KennedyLord Justice MummeryLord Justice SedleyMiss Alice Robinson (instructed by Treasury Solicitor for the appellants)Mr Alun Alesbury (instructed by Morgan Cole Solicitors for the respondents)Miss Harriet Murray (instructed by Oxfordshire County Council Legal Services for Oxfordshire County Council)Date 26 October 2001

Lord Justice Kennedy :

Introduction

[1]This is an appeal by the Secretary of State from a decision of Judge Rich QC, sitting as a Deputy High Court Judge of the Queen's Bench Division in the Crown Office list who on 19 th September 2000 allowed the appeal of Wyatt Brothers against the decision of an Inspector appointed by the Secretary of State to determine Wyatt Brothers' appeals against three enforcement notices issued by Oxfordshire County Council concerning land at Waterstock Golf Course, Waterstock, Oxfordshire.[2]Before the Judge there were six grounds of appeal, and he allowed the appeal on one ground only, namely ground 2, which read as follows:
"The Inspector erred in law in holding that in spite of his powers under section 176(1)(b) of the 1990 Act (to vary the terms of the Enforcement Notice) he was not entitled to consider varying the notices in this case to avoid their requiring (as would otherwise be the case) the re-excavation of a 'lake' (being a water-filled mineral extraction void) whose existence in such a form was not justified by any planning permission or other document, and which no party to the appeal was arguing represented a desirable 'end state' once carried out."
[3]In their Respondent's Notice in relation to the appeal to this court Wyatt Brothers challenge the Judge's decision on the 5 grounds on which they lost before him, but on the day before the start of the hearing before us Mr Alesbury for Wyatt Brothers helpfully indicated that he proposed only to pursue his cross-appeal on what before the judge was ground 1. That ground read:
"The Inspector erred in law in refusing (at the Inquiry held by him) to hear or consider evidence or argument on behalf of the claimant to the effect that the steps required by the Enforcement Notices exceeded what was necessary to remedy any injury to amenity caused by any breach of planning control in spite of the statutory sanction for appeal on such ground contained in section 174(2)(f) of the 1990 Act (as amended). "
[4]It will be at once apparent that in this appeal no issue arises as to whether there was a breach of planning control, or as to the validity of the enforcement notices. The focus is upon the extent of the power of the Secretary of State to amend the requirements of the enforcement notices, and the admissibility of evidence and argument in relation to that issue. It is therefore possible to deal with the facts in less detail than would otherwise be required. Background[5]In 1989 South Oxfordshire District Council granted planning permission to Wyatt Brothers for the development of a golf course and clubhouse and environmental reserve to include a cross-country ride and ancillary uses, on land at Waterstock.[6]An 18 hole golf course was then laid out and it was opened in 1994. On 21 st January 1994 conditional planning permission was given for "the formation of a reservoir for the purpose of irrigating the golf course, extraction of clay and access to the highway." The period for excavation was subsequently extended to November 1997, and that for restoration to November 1998. But problems arose because of the importation of material on to the site, mainly if not exclusively from a nearby motor-way service area site. In 1996 to 1997 Wyatt Brothers applied on two occasions to extend the golf course by adding a further 9 holes. Both applications were refused, and in 1997 the three enforcement notices were issued in relation to the material imported on to the site. As the judge pointed out, the third related to seventy four and a half hectares which included the land which was the subject of the earlier notices, so, for present purposes, those earlier notices can be largely disregarded. The third notice alleged that Wyatt Brothers had breached planning control by – "Without planning permission, the making of a material change in the use of the Land to a mixed use as a golf course and use for the deposit of waste materials."[7]In the first and second enforcement notices the breach of planning control was- "Without planning permission the making of a material change in the use of the Land to use for the deposit of waste materials."[8]In the third enforcement notice the reasons for issuing the notice read – "It appears to the Council that the above breach of planning control has occurred within the last ten years. It is considered expedient to issue this notice because:(i) The deposit of waste requires planning permission and none has been granted. Planning permission granted for the construction of an 18 hole golf course does not authorise the deposit of waste on the land.(ii) The site lies within the Oxford Green Belt and in an area of Great Landscape Value as identified on the Oxfordshire Structure Plan and the Central Oxfordshire Local Plan. The development is contrary to the policies of those Plans which seek to protect such areas.(iii) The scale of the activity involved in the waste tipping operation and the vehicle movements associated with it give rise to noise nuisance, dust problems during dry periods and mud on the roads during adverse weather conditions to the detriment of the amenities of local residents."[9]In the first and second notices the first two reasons are the same, but the third reason reads – "The scale of the deposit of waste has a significant impact on the visual amenities of this attractive area of open countryside and obstructs the line of Footpath No 1."[10]All three notices made the same requirements of the recipient, namely – "(1) Cease the deposit of waste materials on the Land. (2) Remove all waste materials from the Land and dispose of such materials at a suitably licensed waste disposal site. (3) Prepare the surface of those parts of the Land on which waste materials have been deposited so as to be suitable for seeding. (4) After preparation of the Land as in (3) above, seed it with grass." A time was specified for compliance with each step.[11]Wyatt Brothers appealed against the enforcement notices on 5 of the statutory grounds set out in 174(2) of the Town and Country Planning Act 1990, namely– "(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; (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."[12]As the prescribed fee was not paid to the Secretary of State and to the local Planning Authority within the specified period the appeals under ground (a) lapsed, and the deemed applications for planning permission under section 177 did not have to be considered.[13]The Inquiry before the Inspector was held early in 1999, and at the outset he invited submissions from both sides in relation to the admissibility of certain evidence. Part of section 173, which deals with the content and effect of an enforcement notice reads – "(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; or(b) remedying any injury to amenity which has been caused by the breach."[14]In Annex II to Departmental Circular 10/97 it is pointed out, in paragraph 2.30, that the use of the words "wholly or partly" in section 173(3) makes it clear that the local planning authority can "under-enforce" when specifying the steps they require to be taken, or the activities they require to cease in order to achieve the purposes specified in section 173(4) If it does so then planning permission will be treated as having been granted in respect of the balance of the activities which could have formed the subject matter of the notice (see section 173(11). The Circular goes on to assert that the "or" at the end of section 173(4)(a) is disjunctive. Paragraphs (a) and (b) specify two different categories of remedial requirement and, it is said, the local planning authority must choose which route to take. In paragraph 2.31 the Circular states – "It follows from the construction of these provisions that the only type of enforcement notice open to appeal on the second element of ground (f) ('or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;') is a notice where the LPA's reasons for issuing it (paragraph 4 of the example notice) state that its only purpose is to remedy some injury to amenity caused by the breach."[15]In paragraph 2.32 the Circular points out that ground (f) is now worded so as to split the two arguments that can be deployed by the use of the words "or as the case may be". The paragraph continues – "Examination of the enforcement notice should clearly disclose exactly what the LPA sought to achieve by their notice. If it appears that the breach may be contrary to the development plan, or gives rise to a traffic hazard, or there are any objections to it other than on the sole ground of detriment to amenity, and the LPA required its total cessation, that is not considered to be a situation where "the case may be" that all that is necessary is simply a remedy of any injury to amenity that might have been caused. In such a case it is considered that the Act cannot sensibly be interpreted as allowing any appeal submission under the second head of ground (f) where the deemed application has not been considered and objections other than on grounds of detriment to amenity have not been satisfactorily resolved. The only available appeal submission in that case should be that, as a matter of fact, the requirements exceed what is necessary to remedy the breach." Inspector's decision.[16]I have cited from the Circular at some length because the inspector relied upon it when giving his reasons in paragraph 40 of his decision letter for rejecting the submission made on behalf of Wyatt Brothers that the reasons for the issue of each Enforcement Notice were directed in part at amenity, and that therefore it was appropriate to argue under ground (f) of section 174(2) that the requirements exceeded what was necessary to remedy any injury to amenity. Evidence as to what would be expedient in the interests of amenity was also said to be relevant in relation to section 176(1) which provides – "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."[17]The Inspector, as he explained in paragraph 40 of his decision letter, after hearing submissions at the start of the Inquiry, "determined that ground (f) would be decided as explained in paragraph 2.32 of Annex II i.e. whether the requirements exceed what is necessary to remedy the breach." The Inspector went on to say – "As set out in section 173(4)(a) the remedies may include discontinuing the use and restoring the land to its condition before the breach took place and it is relevant to ground (f) whether the steps would exceed that. The reasons for my decision are essentially those given in the Circular. There is no doubt that, reading paragraphs 3,4 and 5 of these notices as a whole, they are framed on the basis of section 173(4)(a). I therefore ruled that evidence not relevant to the grounds of appeal would not be heard .... All evidence was heard unless it was agreed that its only relevance was to the second part of ground (f), remedy of the injury to amenity."[18]Before I deal with the rest of paragraph 40 it is necessary to look at section 172(1) of the Act, which states that – "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; and(b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations."[19]Returning now to paragraph 40 of the Inspector's decision letter, he said – "As to the point made later in the Inquiry that a test of expediency should be applied where variation or correction of the notice is contemplated unrelated to the test in section 172(1)(b), I can see no justification for this. The provisions of the legislation must be seen as a whole and the available grounds of appeal, (a) – (g), are intended to enable the merits of any notice to be fully tested. If the test of expediency advocated is relevant when using the powers under section 176(1) it is equally applicable when those powers are not used and ground (a) and the deemed application is the means whereby expediency may be tested. If corrections or variations do not extend the scope of a notice, as would normally be the case unless made with the agreement of those affected, it is difficult to see how they would make it less expedient than when issued."[20]In paragraph 45 of his decision letter the Inspector dealt with removal of waste from the lake, saying – "The lake as surveyed in November 1997 had a volume of some 80,000 cubic metres. Mr Lyne estimated the permitted volume as 76,000 cubic metres. Mrs Coyne believed that some 20,000 cubic metres of MSA material has been placed in the lake subsequent to the survey. It is accepted that the position and configuration of the lake is not as approved. The appellant argues that requiring the removal of waste to reinstate the lake as it was in November 1997 is neither expedient nor justified by any planning permission or other document. In part what underlies this is the view that there is no merit in the lake remaining as excavated therefore why not partially infill it. That is not relevant to the appeals before me, except in so far as ground (g) is supported on the basis of the need for further negotiations with the local planning authorities. It is not suggested that alternative requirements, such as the formation of the lake as in the relevant planning permissions for its construction, should be substituted. In the context of what has occurred here it seems to me to be in accordance with section 173(4)(a) to require the removal of waste deposited in consequence of the unlawful use."[21]At the conclusion of his decision letter the Inspector set out certain corrections and variations to the three enforcement notices. For present purposes the detail of those alterations is not material. The changes were made to clarify the notices, they were not detrimental to Wyatt Brothers, and there is no complaint about them. Ground 1.[22]Mr Alesbury, for Wyatt Brothers, submits that the word "or" at the end of section 173(4)(a) is not fully disjunctive. When specifying in an enforcement notice the steps which it requires to be taken a local planning authority can specify steps under subsection (4)(a) i.e. require compliance with an existing planning permission or restoration of the status quo, and/or specify under subsection (4)(b) steps intended to remedy any injury to amenity which has been caused by the breach. Despite the wording of the Circular Miss Robinson for the Secretary of State, and Miss Murray for Oxfordshire County Council have in this court not disputed Mr Alesbury's submission as to the relationship between the two paragraphs of the subsection, and in my judgment they are right not to have done so. Bearing in mind that the words "wholly or partly" in section 173(3) expressly enabled the local planning authority to "under enforce" it is not difficult to envisage circumstances in which a local planning authority might want to require in one enforcement notice a partial restoration of the status quo coupled with other work designed to remedy the injury to amenity caused by the breach, and in my judgment there is no reason why the word "or" should be so construed as to prevent that course. This is consonant with the phrase "any of the following purposes" at the end of subsection (3).[23]Mr Alesbury's next submission is more contentious. He submits that when, as in this case, an appeal is brought on the ground in section 174(2)(f) then it is always open to the appellant to contend that the steps required by the notice to be taken exceed what is necessary to remedy any injury to amenity which has been caused by the breach. That, he submits, is what the statute says in paragraph (f), and the court should not restrict the statutory ground of appeal.[24]Alternatively Mr Alesbury submits that when it can be ascertained by reading the enforcement notice as a whole, including the reasons for issuing the notice, that one of the purposes which the local planning authority seeks to achieve when specifying the steps which it requires to be taken is that set out in section 173(4)(b) then an appellant who relies upon ground (f) must be entitled to argue that the steps required to be taken exceed what is necessary to remedy any injury to amenity, and to adduce evidence directed to general planning considerations of that kind. In the present case Mr Alesbury submits that it is clear from the reasons given for issuing the notices and from the submissions made by the local planning authority to the Inspector that one of its purposes when specifying steps was to remedy what it perceived to be the injury to amenity caused by the breach, and, Mr Alesbury submits, the last two steps required by the notices (preparing the ground for seeding, and seeding with grass) were at least in part directed to repairing injury to amenity, so Wyatt Brothers should have been permitted to lead evidence from their expert Mr Scharf and to argue that what was required to be done would involve lorry movements, etc which could only make matters worse.[25]Miss Robinson invited us to look at earlier legislation in order to trace the evolution of those sections in the 1990 Act, as amended by the Planning and Compensation Act 1991, with which we are concerned, but I derive little assistance from that exercise in relation to this aspect of the case.[26]Her more telling submission, supported by Miss Murray for the County Council, was founded on the structure of the present legislation. She submits that when exercising its powers under section 173(3) and (4) a local planning authority can require restoration of the land to its condition before the breach took place. That was the route which, as the Inspector found, this planning authority chose to follow. The local planning authority confined itself to the purposes specified in section 173(4)(a), even though, as is clear from the enforcement notices themselves, its reasons for issuing the notices included general planning and amenity considerations. In that situation the recipient of the notices had a choice. He could, if he wished, pursue his appeal on ground (a) and under section 177(5) of the statute, and thus open up the whole question of injury to amenity, including the detrimental effect of the restorative work. But where, as in the present case, the appellant chose not to pursue his appeal under ground (a) then, unless section 176(1) has the wider meaning for which Wyatt Brothers contend in response to the appeal by the Secretary of State, he cannot introduce under ground (f) general planning considerations or arguments in relation to amenity, because under that ground the Inspector will only be concerned with whether the steps required by the notice to be taken or the activities required by the notice to cease exceed what is necessary to remedy the breach of planning control. As all three counsel agree, logically ground (f) will never fall to be considered until after grounds (a), (b) and (c) have been considered, and if the appeal is successful on any of those grounds then ground (f) will not have to be considered at all, so it will only be considered in a situation where a breach of planning control is established and planning permission ought not to be granted. In such a situation ground (f) cannot sensibly be interpreted in such a way as to enable the appellant to present in support of that ground evidence and arguments as to planning merits which, if not already rejected, should have been presented in support of ground (a).[27]The arguments presented to us were similar to those presented in the court below, and in paragraph 50 of his judgment Judge Rich said – "An appeal on the ground of exceeding what is necessary to remedy injury to amenity is available, in the absence of a deemed planning application, only if the steps required by the notice are solely for the purpose of removing or alleviating injury to amenity which has been caused by the development."[28]For the reasons I have given the use of the word "solely" renders that proposition too restrictive, but having regard to the unassailable finding that in this case all of the steps required were for one of the purposes specified in section 173(4)(a) I agree with the judge's conclusion in relation to ground 1, namely that the Inspector's ruling was right and I would therefore dismiss the cross-appeal. Mr Alesbury's submission that the last two steps in each of the enforcement notices were at least in part directed to repairing the injury to amenity put him in this difficulty – that, in accordance with the Inspector's ruling and in reliance on their ground (f) Wyatt Brothers could have submitted that those steps went beyond what was necessary to restore the land to its condition before the breach took place, and they did not do so. It was thus tacitly accepted before the Inspector that, as he found, all four steps required by the enforcement notices were for the purposes specified in section 173(4)(a). That was probably right, and certainly it is too late to open that issue now. Ground 2.[29]I turn now to ground 2 where the roles are reversed and the Secretary of State is the appellant. Miss Murray submits that ground 2 is parasitic on ground 1 and there is something to be said for that view, but it is necessary to look at it in a little more detail. The question which arises is whether, in this case, the Inspector took too narrow a view of his power under section 176(1)(b) to vary the terms of the enforcement notices by refusing to have regard to general planning considerations in relation to the question of whether Wyatt Brothers should be required to remove material which they had put into the lake. Undoubtedly the words of section 176(1), which I have set out earlier in this judgment, give to the Secretary of State, and thus to his Inspector, a wide power to vary the terms of an enforcement notice if satisfied that the variation "will not cause injustice to the appellant or the local planning authority". It is noteworthy that injustice to other interested parties does not expressly have to be taken into account. No doubt as the power to vary is discretionary, their interests should not be overlooked, but their non-inclusion in the subsection points to a legislative intent that variation should be more a matter of form than of substance.[30]The judge's reasons for allowing the appeal on ground 2 are to be found in paragraph 61 of his judgment where he says – "Where there is no appeal before the Secretary of State on the ground that planning permission should be granted, it is, perhaps, unlikely that the Secretary of State could be satisfied that an application to vary, which raises the same issues and nothing more, will not cause injustice. On the grant of a planning permission the Secretary of State can impose conditions. A deemed planning permission under section 173(11) arising from a variation from the requirements of the enforcement notice would be unconditional. It is however, in my judgment a matter for the Secretary of State or in this case his Inspector to decide. He is under an obligation in appropriate cases to consider whether a variation can be made without injustice and if it is expedient to make it. It is, therefore, in my judgment an error of law not to consider the exercise of the power at least when asked."[31]Miss Robinson submits that in order to understand what can and cannot be done pursuant to section 176(1)(b) it is necessary to have regard to the history of that provision and to the other sections of the current Act. Ever since 1947 it has been possible to vary an enforcement notice to give effect to a decision in favour of an appellant in relation to one of the statutory grounds of appeal (e.g. if the requirements of the notice are found to have exceeded what is necessary to restore the land to its condition before the development took place – see section 23(4)(b) of the Town and Country Planning Act 1947). That power is now to be found in section 176(2A) of the 1990 Act which provides – "The Secretary of State shall give any directions necessary to give effect to his determination on the appeal."[32]Quite separate from the power to vary a notice to give effect to a decision on appeal there has, for about 40 years, been a power vested in the Secretary of State to amend an enforcement notice, as Miss Robinson put it "to prevent it from failing on a technicality because of an error in the formulation of the notice as served" (see Miller-Mead v Minister of Housing Local Government [1963] 2 QB 196 , and later statutes and authorities reviewed by Roch J in R v Secretary of State for the Environment ex parte P.F. Ahern (London) Ltd [1989] 2 PLR 96.) It is this latter power which, Miss Robinson submits, is now to be found in section 176(1) of the 1990 Act. It is a wide power of correction, a generously expressed slip rule, it is not a power which can properly be used to attack the substance of an enforcement notice. So, for example, a notice which requires the recipient to return the land to its condition before the breach cannot, by reliance on section 176(1)(b), be turned into a notice which requires something less. If the recipient of the notice wishes to achieve that result he can do so by appealing on the grounds set out in section 174(2)(a) and pursuing the deemed application for planning permission under section 177. If he is unwilling to pursue that route or unable to do so because he has not paid the required fee then, as Miss Robinson points out, if the same arguments which would have been advanced in support of the appeal under ground (a) can be advanced in order to persuade the Inspector to exercise his powers under section 176(1)(b) the sanction in 177(5A) loses much of its force.[33]On behalf of Wyatt brothers Mr Alesbury submits that the words of section 176(1), which first became part of the Act in 1991 should be read as they are without reference to earlier statutory provisions. If that exercise is undertaken he submits that it is clear that section 176(1)(b) gives to the Secretary of State a power which is different from that which he exercises when correcting defects pursuant to section 176(1)(a) or deciding an appeal under ground (a). It is a power which may be used on the grounds of "expediency" (a word only found in section 172(1)(b) in relation to a local planning authority's decision to issue an Enforcement Notice) to avoid a nonsense or some unsatisfactory over-technical result arising from confirmation of the Enforcement Notice as it stands. In other words if it is a power to require the local planning authority to under-enforce.[34]In my judgment Miss Robinson, supported by Miss Murray, is right for the reasons that she gave. Section 176(1)(b) does not stand alone. It is one of a group of sections which set out an appellate structure. If that structure is not to be undermined section 176(1)(b) does have to read in such a way as not to afford a remedy obtainable by pursuing an appeal under ground (a) in section 174(2), and the Inspector was right so to read it. Having so read it he was right to restrict evidence and argument in the way that he did. Mr Alesbury described it as a bold and unusual decision, but it was a decision I would commend. Parties to planning appeals should not be permitted to spend time and incur expense in support of arguments which are bound to fail. Conclusion[35]I would therefore dismiss the cross-appeal in ground 1, allow the appeal on ground 2, set aside the decision of the Judge, and restore the decision of the Inspector. Lord Justice Mummery: I agree. Lord Justice Sedley: I also agree.

Order

Appeal allowed on ground; cross appeal on ground dismissed; decision of judge set aside; decision of Inspector restored; Secretary of State to recover costs here and below; costs of Oxfordshire County Council to lie where they fall; permission to appeal to the House of Lords refused. (Order does not form part of approved judgment)

Cited in 5 later judgments