(1) SECRETARY OF STATE FOR THE ENVIRONMENT and (2) TERRY HOLDING v THURROCK BOROUGH COUNCIL [2002] EWCA Civ 226

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT (Newman J.)

[2002] EWCA Civ 226

Case No Case No: 01/0647, 01/0648, 01/0849, 01/0850

Venue Royal Courts of Justice, Strand,, London, WC2A 2LL, Wednesday 27th February 2002

Between

(1) SECRETARY OF STATE FOR THE ENVIRONMENT and (2) TERRY HOLDINGAppellant

THURROCK BOROUGH COUNCILRespondent

Before

Lord Justice Schiemann

Lord Justice Chadwick

Sir Christopher Staughton

Timothy CORNER (instructed by Treasury Solicitor for the 1st Appellant)

Stephen HOCKMAN Q.C. and Kevin LEIGH (instructed by Jennings Son and Ash Solicitors for the 2nd.Appellant )

John HOBSON Q.C. and Paul BROWN (instructed by Sharpe Pritchard for the Respondent)

Date 27 February 2002

Lord Justice Schiemann :

Before

[1]the court are appeals from a judgment of Newman J. in relation to two enforcement notices served under the Town and Country Planning Act 1990 ('the 1990 Act'). They were served by the Thurrock Borough Council who are the Local Planning Authority ("LPA"). They concern land at King's Farm, Orsett, Essex. In relation to each of the notices there are two appellants - the Secretary of State and the landowner, Mr Holding. The two notices deal with entirely separate matters. One concerns a change of use and raises a point of general importance in relation to the proper approach to cases where it is alleged that the issue of an enforcement notice is time barred. The other concerns the grant of planning permission on an enforcement notice appeal. It is convenient to look at them separately. I deal first with the change of use notice. The change of use notice : The section 289 appeal

[2]Difficulties always arise in the framing of an enforcement notice alleging a material change in the use of land. A use can vary in intensity and significance. Take the sort of case with which we are concerned. To start using a field once a day for one take off and one landing might well be regarded in certain locations as not involving a material change of use. On the other hand, to start using it for more than 50 aircraft movements per day might well be regarded as a material change. What if there is a gradual escalation from 2 to 50 movements? At what stage have the aircraft movements reached a degree of frequency which should be described as involving a material change of use? There is a further complication. It may be that in a particular case the view is taken that 30 movements involve a material change of use but that there are no good planning grounds for putting a stop to aircraft movements not exceeding 50 per day.

[3]This enforcement notice was concerned with the use of some open land near a farm house. During the past 20 years from time to time aeroplanes have landed and taken off there. The degree of activity has fluctuated. In 1999 the LPA decided to take enforcement action. The landowner said they were too late. An Inspector appointed to hear the enforcement notice appeal upheld that contention. The judge, on an appeal by the LPA, held that the Inspector had made an error of law and quashed his decision. The landowner and the Secretary of State appeal to this court. The statutory Background

[4]Planning permission is required for the carrying out of development : s. 57(1). The making of a material change in the use of land is development : s.55(1). Carrying out development without the required planning permission constitutes a breach of planning control : s.171A (1). Where it appears to a LPA that there has been a breach of planning control and that it is expedient to issue an enforcement notice the LPA may do so : s.172(1). The issue of an enforcement notice constitutes taking enforcement action : s.171A(2). The notice must "state the matters which appear to the LPA to constitute the breach of planning control" : s.173(1). The notice complies with this requirement if it enables the person on whom it is served to know what those matters are : s.173(2). The notice must specify the activities which the authority require to cease in order to achieve, wholly or partly, the remedying of the breach : s.173 (3) and (4). Where an enforcement notice could have required any activity to cease but does not do so and all the requirements of the notice have been complied with then planning permission shall be treated as having been granted in respect of the carrying out of those activities : s.173(11).

[5]Provision is made for various limitation periods in respect of enforcement notices. In the case of the erection of a building the period is four years from substantial completion : s. 171B(1). We are not concerned with that. We are concerned with an enforcement notice which alleges a breach of planning control consisting of the making of a material change in the use of land. In such a case the Act provides that in general "no enforcement action may be taken after the end of a period of ten years beginning with the date of the breach" : s.171B(3).

[6]Rather than wait and see whether or not the LPA decide to serve an enforcement notice, the landowner can apply to the LPA for a certificate of lawfulness of existing use : s.191. "For the purposes of this Act uses are lawful at any time if no enforcement action may then be taken in respect of them " : s.191(2).

[7]A person served with a notice may appeal to the Secretary of State for the Environment against it on a number of grounds set out in s.174(2) each of which is allocated a letter in that subsection. Thus he can appeal on ground(a) "that, in respect of the breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted"; or on ground

(b) "that those matters have not occurred; or on ground

(d) "that, at the date when the enforcement notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters".

[8]In certain cases, of which the present was one, an Inspector appointed by the Secretary of State can hold an inquiry and himself decide the appeal. He must "notify his decision on the appeal and his reasons for it in writing" to the appellant : Town and Country Planning (Enforcement) (Inquiries Procedure) Rules 1992 rule 20. He has power to correct any defect, error or misdescription in the enforcement notice and to vary the terms of the enforcement notice if he is satisfied that this will not cause injustice : s. 176(1).

[9]Where, as in the present case, an enforcement notice is quashed by the Inspector there is a right of appeal to the High Court on a point of law : s.289(1). The Enforcement Notice

[10]On 15.7.1999 the enforcement notice was served on the landowner.

[11]The crucial parts of the notice read as follows:- 3. THE BREACH OF PLANNING CONTROL ALLEGED: without the benefit of planning permission the change use [ sic ] of the land from domestic purposes and agriculture to use for domestic purposes, [ sic ] and as an airfield and for the storage of aircraft. 4. REASONS FOR ISSUING THIS NOTICE: it appears to the Council that the above breach of planning control has occurred within the last ten years. .... The use of the Land and Buildings as an airfield in excess of the levels identified in the requirements of the Notice would give rise to damage to residential amenity and visual damage to the countryside. .... 5. WHAT YOU ARE REQUIRED TO DO:(i) There shall be no microlight movements, except in an emergency.

(ii) There shall be no helicopter movements, except in an emergency.

(iii) There shall be no training flights.

(iv) Cease all aircraft movement in excess of 4 before 7.00 hours and after 23.00 except in an emergency.

(v) Cease all movements of aircraft in excess of 50 a day.

(vi) Cease the covered storage of aircraft in excess of 11 aircraft.

(vii) Cease the outside storage of aircraft in excess of 14 aircraft.

(viii) Cease all airshows in excess of one per year.

(ix) Cease all airshow activity before 9.00 hours and after 19.00 hours

[12]It is clear that the notice is badly framed. Paragraph 3 has one or more words missing. It would have been better framed had it read "Without the benefit of planning permission, the making of a material change in the use of the land from use for domestic purposes and agriculture to use for domestic purposes and as an airfield and for the storage of aircraft."

[13]It can fairly be said that it must have been clear to the landowner from a perusal of the notice that this was what was intended and, moreover, that the LPA had no objection in principle to a fair amount of aeroplane activity in the field. Had the enforcement notice come into force, planning permission would have been treated as having been granted in respect of those airfield activities and storage of aircraft activities which did not infringe the conditions set out in paragraph 5 of the notice. This presumably was not enough for the landowner otherwise he would not have appealed the notice. What was objectionable, in the eyes of the LPA, was aeroplane activity which infringed those conditions. The Decision Letter

[14]The relevant parts of the Inspector's decision letter read as follows. I have italicised certain passages to which I shall refer later in this judgement. 2. In this appeal the onus is upon the appellant to demonstrate, on the balance of probabilities, that the material change of use from domestic and farming use to an [ sic ] airfield and aircraft storage started more than ten years before the date of the Notice i.e. on or before 15 July 1989. The decision of the High Court in Panton & Farmer v Secretary of State for the Environment, Transport and the Regions and Vale of White Horse DC [1999] JPL 461 is a forcible reminder that a material change of use is a once-and-for-all event. There is no need to demonstrate that a use has been in continuous existence throughout a ten-year period. Unless there has been a clear-cut change in planning circumstances, such as a grant of planning permission for an alternative use, the introduction of another use incompatible with the original use or an indication of a deliberate intention to abandon the original use then the use will survive throughout ten years. On the strength of this settled law, I reach the conclusion that, if the appellant can demonstrate that the use of the appeal site as an airfield, on a scale which could not be said to be incidental to either residential or farming activities, had commenced at the appeal site before 15 July 1989, then this appeal should succeed. 3. There seems to be little doubt that the appeal site was used as the base for an aircraft advertisement banner-towing operation in the early 1980's which was a significant commercial business in its own right. I reach this conclusion in spite of the fact that it is not mentioned in the somewhat disingenuous completion of the Requisition for Information by the appellant, dated 8 July 1983. In that important legal document he described the purposes for which the premises were used at that time as "agriculture and dwelling". According to the appellant, the banner advertising operation ceased functioning as a viable commercial operation owing to the allegedly devious activities of the Civil Aviation Authority just before the legality of aircraft towing advertising material was confirmed by Statutory Instrument. The Civil Aviation (Aerial Advertising) Regulations 1983 came into operation on 7 February 1984 so that commercial advertising, in the form of banners towed by aircraft operated from this site, probably ceased shortly before that date. 4. I do not regard the flying of banners for one-off occasions, such as family birthdays or the overflying of Orsett Hall with a banner opposed to residential development on the first day of the Tillingham Hall public inquiry on 18 March 1986, as a prolongation of these activities. Nevertheless, the "Sky-Ads" flying advertising banners' enterprise operated from this site for a significant length of time, some two years, in the early 1980's. In my judgment, commercial flying on this scale could not, by any stretch of the imagination, be considered incidental to any residential and/or farm use functioning on the land at that time. I take the view that a material change use of the land to an airstrip with associated storage of aircraft took place when the Sky-ads operation was based at this site i.e. well before 15 July 1989. If there have been no clear-cut changes in planning circumstances between the end of 1983 and the middle of 1989, such as a conflicting grant of planning permission or an indication that the use has at some time been abandoned, then the appeal will be allowed on ground (d). 5. I have no evidence before me that any planning applications have been granted to nullify the unauthorised material change of use described in the preceding paragraph. The evidence, which the Local Planning Authority mustered to argue that the change of use did not occur until late 1989 at the earliest, is to my mind piecemeal in nature. Elements of this evidence include the following; the absence of planes in the 1986 aerial photograph (photo 1); the renaming of the airstrip "Thurrock" and its appearance in writing on the hangar roof; the listing of the airfield in Pooley's flight guides from 1990 onwards (Document 31); a resumption in complaints from members of the public; the addition of a fuel bowser for the sale of aircraft fuel; intensification of aircraft repairs including aircraft sales and leasing, by Mr. Alexander after mid-1989 compared with the previous activities of Mr. Franks; enlargement of hardstandings outside the appellant's private hangar. 6. This evidence was garnered to demonstrate a material change of use to a general aviation airfield some considerable time after I consider that it took place. Its overall effect is to reinforce my conviction that at no time was the airfield use abandoned after the Sky-ads operation ceased. Panton and Farmer makes it clear that once a use had ceased, its resumption would not amount to a material change of use unless that use had been abandoned. The result is that land can have a dormant use even though the unauthorised activities may not be functioning for significant periods of time. For that reason, I do not find the absence of aircraft from the 1986 aerial photograph to be conclusive evidence of abandonment. The renaming of the airfield in the late 1980's and its identification on the hangar appears to have been part of a publicity campaign by the Council to name what is now the Queen Elizabeth II Bridge at the Dartford Crossings, the Thurrock Bridge. Three of the responses to unsolicited letters from the Council to persons mentioned in the 1995 Planning Contravention Notice volunteer that they paid charges to the appellant (albeit nominal) for the keeping of their aircraft at the appeal site prior to 1989. The appearance of the airfield in Pooley's guide from 1990 onwards is to my mind no clear-cut indication of a material change of use at that time. I place greater reliance upon its status as defined by the Civil Aviation Authority's air navigation charts. This remains unchanged, except for the change of name from Orsett to Thurrock, between 1984 and 1999. Overall, I can find no clear evidence of abandonment of the airfield use since the Sky-ads operation ceased in 1983-4. As a consequence, I find, as a matter of fact and degree, that the airfield operation of 1983 is not materially different from the present usage of the site which has therefore continued for more than ten years. In these circumstances, the appeal on ground (d) against Appeal 1 succeeds. The judgement of Newman J.

[15]The essential reasoning of the judge was as follows i) The Panton case was distinguishable since that was concerned with an accrued right to use land in a particular way and how this could be lost; ii) The statute gives immunity if the breach complained of in the enforcement notice occurred more than 10 years ago; iii) The rationale of the immunity is that throughout the relevant period of unlawful use the LPA, although having the opportunity to take enforcement action has failed to take any action and consequently it would be unfair and/or could be regarded as unnecessary to permit enforcement; iv) If at any time during the relevant period the LPA would not have been able to take enforcement proceedings in respect of the breach, for example, because no breach was taking place, then any such period can not count towards the rolling period of years which gives rise to the immunity. v) It was for the landowner to show that at any time during the relevant period enforcement action could have been taken; vi) The inspector had misunderstood Panton and treated the two years of unlawful activity in the early 1980's as though this had resulted then and there in that activity being a lawful use; vii) This constituted an error of law. The submissions on behalf of the appellants

[16]It was submitted that the issue before the Inspector was whether the breach of planning control alleged in the notice had begun 10 years or more before the date on which enforcement action was taken. The Enforcement Notice as framed alleged a change of use from a use which had no aircraft element to a use which did have an aircraft element. That change had on the inspector's findings taken place before 15 July 1989, namely, during the Sky-ads operations between 1981 and 1983.

[17]It was submitted that when considering what material change of use was alleged in the enforcement notice it was not permissible to construe the enforcement notice as a whole and thus do what the judge had done, namely, to take into account what was set out in paragraph 5.

[18]It was submitted that once a material change of use had taken place there might well be times ("fallow periods") before the expiry of the 10 year period, when nothing objectionable was going on on the land. It was submitted that this fact in itself would not prevent time running during the fallow periods so as to form part of the 10 year period. Activities frequently cease at night times and over week ends and for a break in the summer. Sometimes activities are seasonal.

[19]It was submitted by Mr Corner that during such a fallow period enforcement action could be taken.

[20]It was submitted by Mr Hockman Q.C., though not by Mr Corner, that, even if during such a fallow period no enforcement action could be taken, nevertheless time continued to run unless there had been abandonment.

[21]It was submitted that here a material change of use had been shown to have taken place by February 1984. It was submitted that, in those circumstances, the Inspector had been correct to hold that unless the LPA could show that this use had been abandoned then, once 10 years had elapsed from February 1984, no further enforcement action could be taken in respect of it. The LPA's submissions

[22]Mr Hobson submitted that the correct approach was to identify the activity complained of in the enforcement notice and then identify what was going on 10 years before. If there was a material change of use between what was going on in year 1 and what was going on in year 10 then the limitation provisions did not help the landowner. The judge had correctly identified the rationale behind the limitation provisions. It was commonplace and desirable for LPAs not to object to changes of use which either were not regarded as material or alternatively were for one reason or another not such as to make the issue of an enforcement notice expedient. It was commonplace and desirable for LPAs before issuing an enforcement notice first to ask the landowner to cease what he was doing or to diminish its intensity. If he did so then thereafter it was inexpedient and pointless to issue an enforcement notice in respect of an activity which had ceased to be objectionable. It would be undesirable if the result of such sensible behaviour on the part of LPAs were to be that they were inhibited from issuing an enforcement notice a few years later should the activity recommence or increase in intensity. Discussion

[23]My reading of the decision letter is that the Inspector approached his task by considering whether in 1981 there had been a material change of use to a commercial use and then considering whether the LPA had satisfied him that the commercial use had been abandoned. Beyond argument, bearing in mind the passages which I have italicised that is a possible reading of the decision letter. In those circumstances, if that approach is wrong in law, then the case ought to be remitted to the Secretary of State.

[24]In my judgment it is. The problem in these cases arises from the fact that the wording of the enforcement legislation focuses on the carrying out of building operations and the making of a material change in the use of land whereas clearly what is of potential concern to the public is not primarily the process of building or the process of changing the use as such but the continued existence of the building or of the new use. That is made clear by section 173 which sets out what an enforcement notice can require as "remedying the breach". That section indicates that if the building is removed or the new activity ceases then the breach will be regarded as having been remedied.

[25]I agree with the judge as to the rationale of the immunity provisions. If there is a planning objection to the erection of a building the LPA must take enforcement action within 4 years of completion or lose the chance of taking such action. If there is a planning objection to a use which has been instituted without the grant of planning permission then again the LPA must take enforcement action within the appropriate time limit, 10 years in the present case. If the new use continues throughout that period then the LPA have lost their chance. Their position is much the same as that of a landowner who lets the world regularly walk along a path over his land. There comes a time when he has lost his right to object.

[26]The concept of abandonment, which was central to the Inspector's reasoning, is one which has been evolved in circumstances where a landowner has a right under planning law to use his land in a particular way but then either does not use it actively at all or starts to use it in a different way. Can the landowner thereafter resume without a further planning permission what undoubtedly had been a lawful use on an earlier date? This sort of situation can undoubtedly pose problems. It was that sort of situation with which Panton was concerned.

[27]In the present case, had the activities which took place on the land between 1981 -1983 continued unabated until 1992 and had the landowner then ceased to use the land for aircraft activities for 3 years and then sought once more to use it for aircraft activities that type of problem would have arisen. But the inspector did not find that the commercial use continued unabated. If anything, he found the contrary. He approached his task by asking whether the LPA had shown that the commercial use which existed in 1981 and 1982 had been abandoned and applying a presumption that in the absence of clear evidence to the contrary the unlawful commercial activity continued throughout the period 1981 1989. Thus instead of deciding whether the landowner had shown that the unlawful activity had continued throughout the relevant period he asked himself whether the LPA had discharged some burden of proof in relation to that period. He apparently held that the landowner's own declaration in the Requisition for Information that on 8 July 1983 the land was being used for agriculture and a dwelling was not sufficient. He did not ask himself whether enforcement action could have been taken throughout the period 1981- 1991 or any other clearly defined 10 year period. That is a question which should in my judgment have been addressed by him and should be addressed by the Secretary of State if this appeal is dismissed and the case is remitted to him.

[28]I accept Mr Corner's point that an enforcement notice can lawfully be issued notwithstanding that at the moment of issue the activity objected to is not going on - because it is the week-end or the factory's summer holiday, for instance. The land would still be properly described as being used for the objectionable activity. However, I would reject Mr Hockman's submission that enforcement action can be taken once the new activity which resulted from the material change in the use of land has permanently ceased. I accept that there will be borderline cases when it is not clear whether the land is being used for the objectionable activity. These are matters of judgment for others.

[29]Nor did the Inspector clearly address the question whether there had been a material change in the use of the land within the 10 years prior to the issue of the enforcement notice. He did not examine what in 1989 the facts were on the ground. It may be that it was open to him to come to the conclusion that what was going on in 1989 was similar to what was going on 10 years later and that nothing which should be described as a material change of use had occurred between those dates. However, I am not persuaded that this was the way that he approached his task.

[30]I would therefore uphold the decision of the judge in relation to the enforcement notice alleging a material change of use. The building operations notice : The section 288 appeal

[31]The second enforcement notice was against the laying of a hardstanding and concrete base and the erection of a metal frame building on the concrete base. No limitation point arose in respect of this. There were two grounds of appeal. The first, on ground (c), was that the development was permitted development by reason of Class E of part 1 of Schedule 2 of the Town and Country Planning (General Permitted Development ) Order 1995. The second, on ground (a), was that planning permission ought to be granted for the development. The Inspector dismissed the appeal on ground (c) and it is not before us. He however allowed the appeal on the second ground and granted planning permission. The judge held that in so doing the Inspector had fallen into error and quashed the grant. The landowner and the Secretary of State appeal to this court.

[32]The following development is permitted under Class E : The provision within the curtilage of a dwelling house of any building or enclosure, swimming or other pool required for a purpose incidental to the enjoyment of the dwelling house as such ...

[33]When considering the appeal on ground (c) the Inspector said this. 8. Planning permission is not required for the provision, within the curtilage of a dwellinghouse, of any building or enclosure, swimming or other pool required for a purpose incidental to the enjoyment of the dwellinghouse as such, or the maintenance, improvement or other alteration of such a building or enclosure, under the terms of Class E of Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995. This is subject to a number of conditions including a requirement that the height of a building with a ridged roof does not exceed 4m and the total area of ground within the curtilage covered by buildings does not exceed 50% of the curtilage's total area. It is generally agreed that none of the conditions of Class E is infringed by the structures the subject of these appeals. Nevertheless, the question remains whether the building is within the curtilage of the dwellinghouse on the appeal site and, if so, whether it is put to a use that is incidental to the enjoyment of a dwellinghouse as such. If the answer to either of these questions is "no" then planning permission is required and both appeals will fail.

[34]The inspector dismissed the appeal on ground (c) on the basis that the existing building was not within the curtilage of the dwelling house. In consequence, it was not necessary for him to decide whether or not that building was required for a purpose incidental to the use of the dwelling house as such and he expressed no decision as to this. All this is uncontroversial.

[35]The Inspector then went on to consider the appeal on ground (a), namely that planning permission ought to be granted for the development. He wrote this 14. the building, the subject of this appeal, is a substantial structure in its own right, while its use for the keeping of the appellant's private aircraft, used for business as well as domestic and pleasure purposes, is not a sporting or recreational activity. In these circumstances I am satisfied that the laying of a hardstanding and concrete base is not development which is appropriate in the Metropolitan Green Belt.

[36]He then went on to consider whether there were any very special circumstances that could warrant the retention of inappropriate development in the green belt. It is common ground that this was the right question for the Inspector to ask himself. He continued :15. It was argued forcibly on the part of the appellant that, if this enforcement notice were upheld and the building were demolished, the appellant could erect a building, within the generally agreed curtilage of the dwellinghouse, of the same size in a more prominent and therefore less desirable location without the need for planning permission. For such a "fall-back" position to be a material consideration, there has to be a realistic prospect of that alternative scenario being put into effect. It is clear from the judgment in New Forest District Council v Secretary of State for the Environment and Shorefield Holidays Ltd. [1996] JPL 935, where a number of earlier authorities were reviewed, that only where there is a real possibility of the fall-back situation being carried out does this become a material consideration to be taken into account by the decision-maker.

16. There is no argument that, within the terms of Class E of Part 1 of Schedule 2 to the Town and Country Planning (General Development Procedure)[ sic ] Order 1995, a substantial building covering up to 50% of the generous rear garden of the dwellinghouse at the appeal site could be erected to an overall height of four metres with a ridged roof without the need for planning permission. I have little doubt that any such structure would be visually less desirable than the present unauthorised building, as it would not be seen against the back-drop of the original barn when viewed from the east. In normal circumstances I would consider the likelihood of a structure of this type being erected to be remote, but the appellant is clearly a man with considerable financial resources at his disposal. In this particular situation, I have every reason to believe that he would carry out such a threat.

17. If it is the case that the harm to the green belt is relatively slight, then that situation could itself be part of the very special circumstances, albeit that the appellant has to demonstrate that there are benefits stemming from the development which, in this instance is already in existence.

18. To my mind it can be argued that the harm caused by the unauthorised building is relatively slight. at the inquiry the appellant was able to offer some benefits to the green belt, which would be a direct consequence of allowing this building to remain. First, he indicated that he was prepared to accept a condition taking away his Class E permitted development rights, so that the LPA would have control over the possible erection of large obtrusive structures or the formation of wide areas of hardsurfacing in the rear garden of the dwelling house. 20.

(a) planning permission will be granted

[37]The Inspector's decision to grant planning permission thus proceeded on the basis that if permission was not granted and the landowner was forced to pull the existing building down then he would be entitled under the General Permitted Development Order to erect a new building in a position which would harm the Green Belt more than the existing building and that there was a realistic prospect that he would do just that.

[38]There is no attack by the LPA on the Inspector's conclusion that a fall-back position is potentially relevant to a decision as to whether or not planning permission should be granted for an existing building. Nor, for their part, do the appellants contend that the Inspector was not entitled to conclude that in normal circumstances the likelihood of a structure of this type being erected in the curtilage of this farmhouse would be remote.

[39]The LPA has submitted from the very beginning of the judicial review proceedings that there was no evidence before the inspector from which he could come to a conclusion favourable to the appellants on this limb of the appeal. The inspector's report refers to none. No evidence has been filed on behalf of the Secretary of State exhibiting any evidence put before the inspector or any notes made by the inspector suggesting that there was such evidence.

[40]The judge identified two errors in the Inspector's approach. The first was that it was not clear that there was material in front of the inspector from which he could conclude that there was a realistic prospect of an aircraft hanger being erected in the curtilage of the farmhouse if the enforcement notice were upheld. The second was that it was not clear that the Inspector had concluded that the aircraft hanger was indeed required for a purpose incidental to the use of the dwelling house as such.

[41]The appellants submit that, the inspector having in paragraph 8 identified the correct legal basic material and applied it to the existing building, it would be surprising if he had not applied it to the notional building. Therefore, it is submitted, he must have been satisfied that, if the enforcement notice were upheld, there would be a realistic prospect of 1. a hangar being required for a purpose incidental to the enjoyment of the dwelling house as such and 2. Such a hangar being in fact erected. If he had not been so satisfied, he would not have granted permission.

[42]For my part, while I concede that the Inspector may have been so satisfied, I consider that it is far from clear that he was. The Inspector undoubtedly did not expressly address the question whether a hardstanding and hangar were "required for a purpose incidental to the enjoyment of the dwelling house as such" any point in his decision letter.

[43]A conclusion that an aircraft hanger is required for the purpose of the dwelling house as such is surprising. There may at some point be litigation as to whether that could in any circumstances be a permissible conclusion. In any such litigation no doubt the phrase which appears in section 55(2)(d) of the Act (a section which sets out activities which shall not be taken to involve development) - "the use of any buildings or other land within the curtilage of a dwelling house for any purpose incidental to the enjoyment of the dwelling house as such" will also be considered. So no doubt will cases such as Wallington v Secretary of State for Wales [1991]J.P.L. 942 C.A. and Croydon L.B.C. v Gladden [1994] 1 P.L.R.30 C.A. which indicate that a landowner's truthful evidence as to what he personally requires is not necessarily conclusive as to the answer to the question is the provision of this hangar required for a purpose incidental to the enjoyment of the dwelling house as such. Further, although the point was not raised in front of us, there may be room for an argument that Class E would not authorise the erection of a building used for commercial purposes even though it was also required for a purpose incidental to the enjoyment of the dwelling house as such.

[44]It seems to me that the inspector should have asked himself : Has the landowner shown that there is a realistic prospect of a hangar of a particular size within the limitations of the Order being required for a purpose incidental to the enjoyment of the dwelling house as such? If he answered that question in the affirmative, he should then have asked himself : Has the landowner shown that there is a realistic prospect of such a hangar being erected if the existing hanger is demolished? He should then have explained on the basis of what evidence or reasoning he had come to his answers to these two questions.

[45]It is common ground that the parties to an enforcement notice appeal are entitled to a decision which sets out the inspector's reasoning with adequate clarity. In my judgement the decision letter does not reveal its reasoning with adequate clarity and there are grounds for doubting whether the Inspector gave adequate consideration to the questions which I have identified.

[46]I would dismiss these appeals. Chadwick LJ:

[47]These four appeals comprise(i) appeals by the landowner, Mr Terry Holding, and the Secretary of State (2001/0647 and 0849) against so much of the order made by Mr Justice Newman on 22 February 2001 as allowed the appeal of Thurrock Borough Council under section 288 of the Town and Country Planning Act 1990 against the decision of the Secretary of State, contained in his inspector's decision letter dated 10 March 2000, to grant planning permission under section 177 of that Act and

(ii) appeals by the landowner and the Secretary of State (2001/0648 and 0850) against so much of the same order of 22 February 2001 as allowed the Council's appeal under section 289 of the 1990 Act against the decision under section 176 of the Act, contained in the same decision letter, to quash a second enforcement notice served by the Council on 15 July 1999.

[48]I agree that the appeals against the orders made under section 288 of the Act should be dismissed, for the reasons given by Lord Justice Schiemann.

[49]I agree, also, that the appeals against the orders made under section 289 of the Act should be dismissed. It is because those appeals raise a point of more general importance that I add some observations of my own to the reasons already given.

[50]Section 172(1) of the 1990 Act empowers a local planning authority to issue 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. In that context "a breach of planning control" includes the carrying out of development without the required planning permission see section 171A(1) of the Act; and the issue of an enforcement notice constitutes "taking enforcement action" see section 171A(2). Section 171B(3) provides that, where there has been a breach of planning control (not falling within subsections (1) and (2) of that section) "no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach." Section 173(1)(a) of the Act requires that an enforcement notice shall state the matters which appear to the local planning authority to constitute the breach of planning control.

[51]The relevant enforcement notice was issued on 15 July 1999. The breach of planning control alleged was stated in these terms:

"Without the benefit of planning permission the change [of] use of the Land from domestic purposes and agriculture to use for domestic purposes, and as an airfield and for the storage of aircraft."

The "Land" was identified in the notice as land at King's Farm, Parkers Farm Road, Orsett.

[52]The landowner appealed against the notice under section 174 of the Act, as he was entitled to do. The grounds upon which an appeal can be brought under that section are set out in sub-section (2).

(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 [the matters stated in the notice]."

[53]In those circumstances the question which the inspector appointed by the Secretary of State to determine the appeal (under the powers conferred by schedule 6 of the Act) was required to address, in relation to ground (d) of section 174(2) of the Act, was this: had the breach of planning control stated in the notice of 15 July 1999 that is to say the change of use of the land from use for domestic purposes and agriculture to use for domestic purposes, and as an airfield and for the storage of aircraft taken place more than ten years before the issue of the notice?

[54]The correct approach to that question, as it seems to me, was to ask whether there had been a change of use of the land from use for domestic purposes and agriculture to use for domestic purposes and as an airfield and for the storage of aircraft within the period of ten years immediately preceding 15 July 1999 that is to say, since 15 July 1989. If there had been a change of use from use for domestic purposes and agriculture to use for domestic purposes and as an airfield and for the storage of aircraft since 15 July 1989, then it was irrelevant, for the purposes of ground (d), that there might have been use as a commercial airfield in the past that is to say, between 1981 and 1984. Different considerations would arise where an earlier use had given rise to an "established use" under the provisions formerly contained in section 94 of the Town and Country Planning Act 1971 and section 191 of the 1990 Act (as originally enacted); but that was not this case.

[55]In order to decide whether there had been a change of use from use for domestic purposes and agriculture to use for domestic purposes and as an airfield and for the storage of aircraft since 15 July 1989, the inspector needed to ask whether use as an airfield and for the storage of aircraft had been continuous since 15 July 1989. I agree with Lord Justice Schiemann that, on the basis of the inspector's decision letter, it is impossible to be confident that he did ask himself that question; or what answer he would have given to it. The inspector seems to have thought that he was required, by the decision in Panton and Farmer v Secretary of State for the Environment, Transport and the Regions and Vale of the White Horse District Council [1999] JPL 461, to hold that "if the appellant can demonstrate that the use of the appeal site as an airfield, on a scale which could not be said to be incidental to either residential or farming activities, had commenced at the appeal site before 15 July 1989", then the appeal must succeed unless it could be shown that that use had been abandoned.

[56]The Panton and Farmer case is not authority for that proposition. The issue in that case (so far as material in the present context) was whether the landowner was entitled to a certificate of lawful use for business and storage purposes on an application made in April 1997, under section 191(1)(a) of the 1990 Act (as amended), in circumstances where there was no evidence of any relevant business or storage use since 1987 but where there was evidence (which the inspector accepted) of such use from before 1964 until 1987. There was, therefore, evidence of an accrued established use capable of giving rise to the right to an established use certificate under the statutory provisions in force before the amendments made to section 191 of the 1990 Act by the Planning and Compensation Act 1991. It was to that right that the deputy

judge was directing his observations, at [1999] JPL 461, 467-8, when he said that:

". . . in accordance with long established principles, such an accrued planning right could only be lost in one of three ways, by operation of law. First, by abandonment, secondly by the formation of a new planning unit, and thirdly, by way of a material change of use. . . . . . . During the hearing I suggested the term "dormant use", as representing a use which had arisen by way of a material change of use, but was now inactive, possibly for a long period of time. Such decline, even cessation, of physical activity could, of course, occur in countless different circumstances. The dormant use would still exist in planning terms, in the sense that the use right had not been lost by operation of law by one of the three events referred to above."

The deputy judge could not, I think, have intended to suggest that there was some presumption of continuance in planning law in respect of a use which had commenced as a result of a material change of use but which had ceased to be an active use before any accrued planning right had arisen.

[57]The observation in the Panton and Farmer case which, for my part, I find more difficult to accept is that at [1999] JPL 461, 469:

"An enforcement notice is no less properly served in relation to a dormant use than in relation to one which is being carried on in an active or physical sense."

[58]The difficulty, as it seems to me, is that if by the phrase "dormant use" in that context the deputy judge meant an established use in relation to which there was an accrued planning right, then the breach of planning control at the time when that use had first commenced would not be one in respect of which an enforcement notice could be "properly served". If, on the other hand, the deputy judge intended to suggest that an enforcement notice could and should be served in respect of a use which had commenced as a result of a material change of use in breach of planning control but which had ceased to be an active use before any accrued planning right had arisen, then I am unable to follow his reasoning; or to see how an enforcement notice could be appropriate in those circumstances. It is important to keep in mind that an enforcement notice must specify the steps which the local planning authority require to be taken, "or the activities which the authority require to cease", for the purpose of remedying the breach see section 173(3) of the 1990 Act. There is, I think, force in the editorial comment at [1999] JPL 461, 471, that, if the deputy judge is to be taken to suggest that the notional continuation of a use which had ceased to be an active use before any accrued planning right had arisen could be sufficient to establish its own lawfulness:

". . . this would mean that a local planning authority might have to issue an enforcement notice to require the sleeping use to stop: this would surely be a nonsense."

[59]The "nonsense" can be avoided by recognising that the deputy judge did not intend to suggest, in the Panton and Farmer case, that there was any need to serve an enforcement notice in respect of a use which had ceased to be an active use before any accrued planning right had accrued. Sir Christopher Staughton: I also agree

Order

Appeal dismissed; appellants to pay Respondent's costs; costs summarily agreed at £10,500; application by a Appellants for permission to appeal to the House of Lords refused. (Order does not form part of the approved judgment)

Cited in 11 later judgments

and 2 more of the most senior