Maldon District Council v Hammond [2004] EWCA Civ 1073

Case No A2/2003/2472 PTA[2004] EWCA Civ 1073
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
Buckley J
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday, 30th July 2004
Before
LORD JUSTICE BROOKEVice-President of the Court of Appeal (Civil Division)LORD JUSTICE MAY
Between
MALDON DISTRICT COUNCILClaimant/MICHAEL ROY HAMMONDDefendant/Appellant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Patrick Ground QC (instructed by Gepp & Sons) for AppellantEdmund Robb (instructed by the Solicitor, Maldon District Council) for Respondent
JudgmentLord Justice Brooke :
[1]This is an appeal by Michael Roy Hammond (“Mr Hammond”) against an order made by Buckley J on 14th October 2003 whereby he granted the Maldon District Council (“the council”) certain injunctions relating to Mr Hammond’s use of land at 8A Mill Road, Mayland, Chelmsford, Essex. The essence of the judge’s order was that he required Mr Hammond to remove from that land by 28th December 2003 “any motor vehicle whatsoever” and also “any mobile home, structure, hardstanding (except the hardstanding for the bungalow), soil and rubble brought onto the land to the level of the immediate surrounding land or container whatsoever, excepting the water storage container presently on the land, and to cease to use the land for the purposes of human habitation save as permitted by the General Permitted Development Order 1995”. In addition to the mandatory elements of these orders the judge also made certain ancillary restraining orders on which nothing turns for the purposes of this appeal.[2]On 19th December 2003 Sedley LJ adjourned Mr Hammond’s application for permission to appeal on one fairly narrow issue of law and otherwise refused permission to appeal. He stayed the execution of the judge’s order pending a hearing on notice in relation to this one issue, with the appeal to follow if permission was granted. We granted permission to appeal during the course of the hearing because the appeal clearly raised a properly arguable point of law fit for consideration by this court. Sedley LJ described the point in issue in these terms ([2003] EWCA Civ 1975):
“[W]hether by virtue of section 173(11) [of the Town and Country Planning Act 1990] Mr Hammond has, or should have been held to have, deemed planning permission by virtue of long user in breach which was capable of having been dealt with by earlier enforcement procedures but was not so dealt with.”
[3]The history of the matter runs alone these lines. Mill Road is a roughly gravelled cul-de-sac which runs north from Malden Road, Mayland. In about 1982 Mr Hammond became the tenant of a plot of land about 550 metres up the road. There is a large mushroom farm and a nursery and garden centre on either side of the road to the south, and beyond them a few houses were built before the war as dwellings which served smallholdings, each with a substantial area of land. In 1976 the former owners of Mr Hammond’s plot (which is now known as 8A Mill Road) obtained detailed planning permission to build a two-storey dwelling on the site subject to an agricultural occupancy condition. The land was then in agricultural use, and there used to be commercial glasshouses at the far end of the plot, which is 5.2 acres in area, with a frontage of 50 metres to Mill Road.[4]There is no dispute that throughout his time there Mr Hammond repaired cars on the site. In 1998 a planning inspector was to find that there was originally a building described as a stable on the site, approximately 6 metres by 3.5 metres in area, which Mr Hammond used as a garage. He also found that within the previous four years Mr Hammond had constructed a much more substantial building, about 9.7 metres by 7 metres in area, in the same place without the benefit of planning permission. It appears that Mr Hammond was in the practice of acquiring wrecked vehicles which he took to the plot, and he sometimes cannibalised their parts when carrying out car repairs.[5]He originally lived with his wife and three young children in a mobile home on the site. Between 1984 and 1986 he was engaged in building a bungalow which did not conform with the plans for which planning permission had been granted. In 1986 a planning inspector was to find that in January 1985 he had falsely informed a council representative that the concrete base which eventually supported the bungalow was in fact being built to support a garage for the storage of motor vehicles. This prompted a warning letter to the effect that such a use would constitute a change of use for the land. He was to give different false explanations about the purpose of the structure he was creating in April and July 1985. In 1985 the council served two enforcement notices which were later quashed for prematurity. They served two more in October 1986, and after a very protracted battle at planning inquiries and in the courts the bungalow was eventually demolished in 1996. In the meantime the council had served an enforcement notice requiring Mr Hammond to desist from using the mobile home for residential accommodation. This, too, was upheld on appeal.[6]There is some written evidence which relates to Mr Hammond’s use of the “garage” in those years. The owners of Nos 8, 10 and 15 Mill Road featured among those who complained to the council. In 1986 the owner of No 10 complained that Mr Hammond had removed a hedge and was storing a large number of lorries and damaged cars which were repaired in a temporary workshop. He added that the number of stored vehicles had been reduced recently following the intervention of the local planning authority. In 2003 Mr Hammond was to say that the number had been reduced at that time from 30 to 15.[7]In October 1987 the council’s enforcement notice requiring the removal of the bungalow was upheld on appeal, but Mr Hammond continued to live there with his wife and children, apart from one of his daughters who lived in the mobile home on the site for some of the time. In July 1992 the council served an enforcement notice requiring the removal of the mobile home. There was a dispute about the extent of car-connected activity on the site at that time. Mr Hardy, who has been acquainted with the history of this site as a planning enforcement officer since about 1989, observed only six vehicles on the land in a visit he paid at this time. Mr Hammond maintains that in fact there were 15-20 vehicles in the back land beyond a line of trees at that time. He said that he put vehicles there on a regular basis out of view of his neighbours who were constantly complaining. He would take them from there to the garage to be repaired as and when required, and he would then return them to the back land in order to limit the numbers of vehicles on view.[8]He said that in July 1992 two of his neighbours wrote letters to the council complaining about the storage and repair of vehicles on the site, and that in May 1993 his neighbour at No 8 wrote another letter of the same type. She said that she had contacted the council some months earlier because she had reason to believe Mr Hammond was carrying on a car repair business from the premises. She described how she could hear a compressor operating in one of Mr Hammond’s many sheds, and she could also smell paint when he was spraying. She realised that it would be difficult to prove that Mr Hammond was running a business, because all he had to say was that he was repairing the car of a friend or family member. She asked, however, how Mr Hammond accounted for the 12 or 13 cars he had hidden in the back field. She referred to the crashed vehicles in the back garden “with doors or bonnets etc missing”.[9]In 2001 a planning inspector was to record Mr Hardy’s evidence to the effect that after the planning authority received complaints of this kind, he and other officers did not see Mr Hammond carrying out such work, and they could not obtain any other evidence that was needed to substantiate the complaints. Mr Hammond, for his part, consistently maintained that any car repairing activity he carried out was incidental to his use of the residential accommodation on the plot.[10]The council was eventually constrained to bring committal proceedings against him. A local housing association provided alternative accommodation large enough for him and his whole family, and when the bungalow was demolished in the autumn of 1996 they all moved out. However, Mr Hammond was soon back. He said that his relations with his wife had deteriorated, and he preferred to live in a mobile home on the plot.[11]In April 1997 the council carried out a survey of the site, and noted that there were now more vehicles on the land than there had been when Mr Hammond and his family occupied the bungalow. Mr Cook, one of the council’s officers, said that there were probably 15 or 20 vehicles there then. There was a further site inspection in June 1997, and in September the chief planning officer reported to the council in these terms:
“The workshop building An existing outbuilding continues to be used as a workshop to repair and spray motor vehicles. A workshop has existed for many years and formed part of the original nursery complex. Its use by Mr Hammond as a garage/workshop has in the past been regarded as incidental to the residential use of the dwelling, but the Council’s Solicitor has advised that since the dwelling was unauthorised no normal development rights existed. The use of the building therefore falls to be considered as a possible contravention taking into account the ten year immunity rule. Mr Hammond has in the past claimed that the vehicles under repair were strictly for his family and thus outside planning control. He now claims that he has established a car repair use over the past ten years. It is not clear as to the extent to which Mr Hammond regards this use as independent of any residential use at the site, and despite the clear perception the council does not have evidence that the use is now being conducted on a commercial basis. There is the possibility that the use can be challenged on the basis of intensification, although this would imply that the present use had grown beyond a previously acceptable level.”
[12]He recommended that the council should serve an enforcement notice relating to the construction of the new building with an enlarged hardstanding, and in the event the council resolved to include this item among the seven enforcement notices it decided to issue and serve. The relevant notice required Mr Hammond to “Demolish the workshop building and hardstanding marked in blue and denoted ‘C’ on the attached plan and remove from the land all building materials and rubbish arising from such demolition.” The “attached plan”, which was identical for each notice, embraced the whole of Mr Hammond’s plot.[13]In December 1997 the owner of 10 Mill Road complained again:
“The presence of some 20 vehicles in various stages of dismantling leaves a serious hazard from fuel tanks, rubber tyres, plastics etc. The constant repair of crashed vehicles not only causes noise but presents a further hazard from the storage of paints, thinners and gas cylinders.”
[14]On 1st October 1998 a planning inspector rejected Mr Hammond’s appeals against the enforcement notices. He also refused to give a determination under section 177(1)(a) of the Town and Country Planning Act 1990 (“the 1990 Act”) to the effect that the land could lawfully be used as a workshop for the repair of motor vehicles. In this context Mr Hammond had told the inspector that the work he carried out on cars was generally performed for himself and his immediate family, although exceptionally, and not more than two or three times in an average year, work was carried out for payment on behalf of other people. The inspector found that on the basis of that evidence, commercial use would appear to have been de minimis. He went on to decide that there could not be any use of the land for purposes incidental to the use either of the bungalow or of the mobile home (since the courts had found that these uses were both unlawful) and he therefore refused Mr Hammond the determination he sought.[15]In spite of this decision, more and more vehicles were placed on the land, although there was eventual compliance with the enforcement notices during 2000. In June of that year Mr Hammond told the council that car breakers were dumping vehicles on the land and asked for their help in removing them. In the event there was something of an impasse, since he was not willing to pay the council’s charges, and he alleged that he could not afford the charges of an alternative contractor. At all events, the council demolished the garage workshop in July 2000. Their officers observed 50 vehicles on the land at that time. The following month Mr Hammond told an officer of the council that he was staying in the mobile home on the plot 2-4 nights a week, and spent the rest of the time staying with his wife. He subsequently erected a replacement workshop, which he then demolished just before the trial of this action.[16]On 15th March 2000 Mr Hammond sought a further lawful development certificate in respect of his use of the land for storage and repair of vehicles, residential use of land and leisure purposes. In July 2000 the council refused this application, and in July 2001 a planning inspector dismissed his appeal. On this occasion Mr Hammond “unambiguously agreed” with his evidence to the previous inspector in 1998, and he confirmed as accurate his statement in a June 2000 letter to the effect that his income from commercial activity in 1999-2000 had amounted to no more than £15. He accepted that cars had accumulated on the land during his period of residence, but he said that these were “junk which just lay on the land.” The inspector recorded Mr Hammond’s consistent assertion that any activity in relation to the storage and repair of vehicles was incidental to the residential use, and he said that this was further supported by his evidence to the effect that he did not know whether repairs in 1997 amounted to one or two in a week or in a year.[17]The inspector concluded that there had not been a material change of use either by 1998 or 2000, and that such use as Mr Hammond described was consistent with a use ancillary to the residential use. This was supported by Mr Hardy’s evidence. The Inspector therefore dismissed Mr Hammond’s appeal against the refusal of a lawful development certificate in this regard. In due course Mr Hammond was to confirm to the judge that the evidence he gave to the planning inspectors in 1998 and 2001 was correct. The judge also received evidence that he had told an officer concerned with housing benefit fraud that he did not do up cars for a living.[18]The present action, which was commenced in May 2002, reflects the council’s determination to bring matters to a head once and for all. When Buckley J gave judgment in June 2003 he recorded that he had heard oral evidence from Mr Hammond and Mr Hardy and from two expert witnesses. He was therefore entitled to take into account the impression Mr Hammond made on him as a witness of truth. He also enjoyed the benefit of a visit to the site.[19]He said (at para 79) that this was generally a very pretty rural area, and that this particular site was essentially, or should be, an open green field leading to the estuary. Instead it was an eyesore. There were odd piles of rubble here and there, and the cars littered over the site were the most unsightly features of it. Some were simply shells or half shells dumped and left rusting away, and most of them appeared to be in a very dilapidated condition. There was also a single-decker coach sitting on the land. The judge said that from a planning point of view there was the need for a considerable degree of urgency in restoring the site to something approaching the green field that it ought to be. He described as pretty flagrant Mr Hammond’s continued use of the mobile home as a place to live in after the bungalow was demolished, and he used the same epithet to describe the way he had rebuilt the workshop demolished by the council and his use of vehicles on the site.[20]In paras 86-97 of his judgment the judge considered an argument that Mr Hammond’s use of the land for the storage and repair of vehicles was such as to constitute a change of use in planning terms, and that since this activity had continued for at least ten years up to the date of the trial, Mr Hammond was now immune from enforcement proceedings under town and country planning legislation.[21]After considering all the relevant evidence, and in particular Mr Hammond’s own evidence to the two planning inspectors and the inspectors’ findings on that evidence, the judge concluded that the evidence of use prior to about 2000 was insufficiently clear to justify a finding that Mr Hammond was involved in more than could be properly regarded as a use ancillary to the use of a dwelling-house on the site. He said (at para 97) “…[I]n the result, I would not be satisfied as a matter of evidence of 10 years’ use at the present level, or indeed at any level, sufficient to constitute a change of use. I do think that in any event I should regard myself as bound by the inspector’s very clear finding on that, based as it was on Mr Hammond’s own evidence on oath, which he confirmed before me in cross-examination.”[22]Sedley LJ did not grant permission to appeal against this finding. It is evident that the judge considered that the evidence justified the finding, so that he would have reached the same conclusion independently of the planning inspector’s decision on the matter.[23]The judge then turned (at para 98) to the issue which is at the centre of this appeal, which revolves round the language of section 173(11) of the 1990 Act:
“Where – (a) an enforcement notice in respect of any breach of planning control could have required any buildings or works to be removed or any activity to cease, but does not do so; and (b) all the requirements of the notice have been complied with, then, so far as the notice did not so require, planning permission shall be treated as having been granted by virtue of section 73A in respect of development consisting of the construction of the buildings or works or, as the case may be, the carrying out of the activities.” (a) an enforcement notice in respect of any breach of planning control could have required any buildings or works to be removed or any activity to cease, but does not do so; and (b) all the requirements of the notice have been complied with, then, so far as the notice did not so require, planning permission shall be treated as having been granted by virtue of section 73A in respect of development consisting of the construction of the buildings or works or, as the case may be, the carrying out of the activities.”
[24]Although ministerial guidance does not have the force of law it is useful to consider the terms of the relevant part of Annex 2 (“enforcement notices and appeals”) to Circular 10/97 from the Office of the Deputy Prime Minister:
“‘Under-enforcement’ and deemed planning permission 2.10. Section 173(11), as amended, corresponds substantially to the previous section 173(8) of the 1990 Act, except that, after full compliance with the requirements of an enforcement notice, the provisions apply to any remaining uses or activities on the land and to any remaining buildings or works. It deals with the situation where ‘under-enforcement’ has occurred, by providing that planning permission shall be treated as having been granted for the development or the activity, as it is in the state resulting from the owner or occupier having complied with the enforcement notice’s requirements. As the section applies to all the remaining uses or activities on the land once the enforcement notice has been complied with, LPAs should ensure that they identify all the relevant breaches of planning control involving the use of land before they issue an enforcement notice. Where the land is in mixed use, it is important that the notice should allege a change of use to that mixed use, specifying all the component elements in the notice’s allegation. The deemed application for planning permission under section 177(5), arising from any appeal against the notice, which the Secretary of State or a Planning Inspector will need to consider, should properly relate to the mixed use in its entirety, not just to those elements of the use which the LPA may have identified as being in breach of planning control and which are covered by the notice’s requirements. This is because the planning merits of a particular use of land will not necessarily be the same, where that use is only one of a number of uses taking place, as the planning merits of that use where it is the land’s sole use. For example, if the other uses were to cease and the single remaining use were to occupy the entire ‘planning unit’, to the exclusion of the others, that change would well constitute, as a matter of fact and degree, a ‘material’ change of use of the planning unit, to which different planning considerations might apply (Wipperman v Barking LBC [1965] 17 P&CR 225). Accordingly, if the LPA do not specify all the uses taking place on a planning unit in a mixed use case, the Secretary of State’s or an Inspector’s appeal decision will correct that notice, to reflect the actual situation on the land as it was when the notice was issued, before dealing with any ‘deemed planning application’ on that basis. In these circumstances, if the LPA have failed to identify any uses of the land which may not already be lawful, and to which planning objections would apply if they were to become lawful, the effect of section 173(11) could be to grant deemed planning permission for those uses if they are specified in the allegation but are not required to cease.”
[25]In the course of his powerful submissions on Mr Hammond’s behalf, Mr Ground QC has drawn our attention to a number of different decisions in the planning field where some abnormal feature of the use of land adjacent to a dwelling-house was held to have taken it outside the scope of the permission accorded to use incidental to the use of a dwelling-house as such.[26]He started by referring to four decisions concerned with the repair and maintenance of cars which are briefly summarised in the Planning Decisions Digest (2nd Edition, 1992) by Michael Purdue and Vincent Fraser at pp 66-68:(i) Decision 55-571. The repair and maintenance of four cars owned by the appellant and used either as private cars or for stock-car racing was held not to be incidental to the use of a dwelling house (see [1978] JPL 201).(ii) Decision 55-577. The repair of cars for neighbours and friends, even if payment was only made for parts, was held to exceed dwelling house use (see [1980] JPL 472).(iii) Decision 55-582. Seven cars were reported to be on the site, three of them undergoing extensive repair or innovation. The inspector held that an unusually large number of motor cars had been stored over a lengthy period of time at the site and that this use was not incidental to the use of a dwelling house (see [1983] JPL 74).(iv) Decision 55-584. The repair and maintenance of three cars used for the house owner’s hobby of grass track car racing was held not to be incidental to the use of a dwelling house (see [1984] JPL 291). So far as these decisions are concerned, the answer will be a question of fact and degree in each case. If it were in fact the case that Mr Hammond misrepresented the situation on oath to planning inspectors when it suited him to do so (and the judge observed that it was very difficult to be clear about the facts) he has only himself to blame if his story of a minimal use of the “garage” for repairing cars for anyone other than family and friends (a story which he repeated before the judge) was believed.[27]In Wallington v Secretary of State for Wales (1990) 2 P&CR 150 this court upheld a decision by a planning inspector to the effect that the keeping of 44 dogs as a hobby could not be reasonably regarded as a use “of and incidental to the occupation of the dwelling-house as such” within the meaning of what was then section 22(2)(d) of the Town and Country Planning Act 1971. Slade LJ said (at p 156):
“As drafted, the phrase must mean ‘of an incidental to the enjoyment of a dwellinghouse as a dwellinghouse’. The mere fact that an occupier may genuinely regard the relevant activity as a hobby cannot possibly suffice to prove by itself that the purpose is incidental to the enjoyment of a dwellinghouse as a dwellinghouse.”
[28]Farquharson LJ restated (at p 162) the relevant principle in these terms, which he derived from an earlier judgment:
“The fact that such a building had to be required for a purpose associated with the enjoyment of the dwellinghouse could not rest solely as the unrestrained whim of him who dwelt there, but connoted some sense of reasonableness in all the circumstances of the particular case.”
[29]These principles were applied by this court in Croydon LBC v Gladden [1994] 1 PLR 30 in which the court upheld an injunction requiring the removal of a replica Spitfire from any open land or from the exterior of any building at the appellants’ ordinary semi-detached house in a quiet residential area. Similarly, in Harrods Ltd v Secretary of State for the Environment [2002] JPL 1258 this court held that the use of the roof of the Harrods store in Knightsbridge as a helicopter pad was not permitted as a use incidental to a shop. In that case Schiemann LJ said (at para 23):
“A person who moves next door to a shop can expect normal shopping activities to go on there without there being a requirement for planning permission. A person who moves next door to Harrods can expect things, which are normal there and in other emporia of that sort of size. But if what an appellant wants to introduce is not generally associated with what goes on in shops then it seems probable that Parliament intended that neighbours should have the chance to object to the grant of planning permission and thus force the owner to go through the appropriate procedures to get his planning permission.”
[30]Mr Ground argued that the question the court has to decide is not whether the seven enforcement notices dated 14th November 1997 in fact required the cessation of the storage and car repair activities on the land but whether they could have done so. In order to decide this question he said it was necessary to consider whether one or more of the notices could have been amended by the inspector or the Secretary of State under section 176(1) of the 1990 Act so as to require the cessation of those activities. He relied heavily in this regard to the judgments in this court in Tandridge District Council v Verrequia [2000] 1 QB 318 to which I must now turn.[31]In this case the land-owner was using land both for dumping waste materials (“the dumping use”) and for parking motor vehicles on a commercial basis (“the car parking use”). The planning authority in respect of the dumping use was the county council, while the planning authority concerned with the car parking use was the district council.[32]In June 1991 the district council served an enforcement notice in respect of the car parking use, and the validity of this notice was still in issue before the courts in April 1993 when the county council served an enforcement notice in respect of the dumping use. When this second enforcement notice was challenged, the planning inspector added the car parking use to this notice by amendment, but the amendment failed to specify any steps to remedy the car parking use. The land-owner then sought to rely on section 173(11) of the 1990 Act by arguing that because the second notice, as amended, could have required him to cease the car parking use, he must be treated as having been granted planning permission for its use by reason of its failure to do so.[33]It was against this complicated background that Sir Richard Scott VC said (at p 335):
“Moreover, section 173(11) only applies if the enforcement notice could have specified remedial steps which were not, in the event, specified. What remedial steps in respect of the car-parking use could the inspector have added by an amendment to the enforcement notice? To have specified any steps at all would, in my view, have been an injustice to the defendant who had already gone through a previous inquiry and court proceedings in dealing with the district council’s enforcement notice. In my opinion, no remedial steps in respect of the car-parking use could have been added in May 1994 when the amendment to the county council’s enforcement notice was made by the inspector. It follows, in my judgment, that section 173(11) never came into play so far as the parking use was concerned.”
[34]In his judgment Chadwick LJ set out at pp 340-342 the reasons why he considered that the inspector could not have properly amended the second notice so as to require the car-parking use to cease on the particular facts of that case.[35]Mr Robb, for the council, encouraged us not to look at dicta in that peculiar case as establishing any point of principle in relation to the proper interpretation of section 173(11). He said that we ought to follow the line of reasoning adopted by Schiemann LJ (with whom Mance LJ and Potts J agreed) in Scott v Secretary of State for the Environment, Transport and the Regions (CAT 16th October 1990). In that case the court was concerned with a challenge to an enforcement notice which required the removal of a very large quantity of inert wastes which had been used to level the ground across a small valley. A culvert had been constructed on the land, and because the enforcement notice did not require its removal, it was said that its construction must be taken to have been granted “deemed planning permission” through the operation of section 173(11).[36]Schiemann LJ, however, rejected this submission. He said (at para 15):
“The enforcement notice manifestly did not allege that the construction of the culvert had been carried out in breach of planning control. In those circumstances the enforcement notice could not have required the removal of the culvert. In those circumstances section 173(11) is not in play and there is no question of any deemed planning permission for the culvert and therefore the comparison does not fall to be made between the physical situation, including a culvert which the appellant has a right to keep there, and a physical situation with some or all of the waste material in place. The question of a comparison with a fall-back position only arises where the landowner has a right to adopt such a fall-back position. This landowner has no such right.”
[37]This decision was followed at first instance by Richards J in Fidler v First Secretary of State [2003] EWHC 2003 (Admin). That case was concerned with a former farmyard and adjacent land in Surrey, and Richards J said (at para 1) that it was not in issue that there were now three planning units on the site, including one comprising essentially agricultural land at the northern end. In 1996 the local planning authority served an enforcement notice, expressed to relate to the whole of the site, which complained of a change of use from use for agriculture to a mixed use for agriculture and an engineering contractor’s depot. An appeal against that notice was eventually withdrawn on the ground that this change of use had now ceased. The land-owner maintained, however, that the effect of section 173(11) was to confer a deemed planning permission on all the other uses of the site that existed at the time of the 1996 notice.[38]Richards J held that the decision of this court in Scott represented an insuperable hurdle so far as that submission was concerned. He said (at para 104):
“That decision makes clear that s 173(11) applies only to uses of the land which are alleged by the enforcement notice itself to be in breach of planning control. If a use is not alleged to be in breach of planning control, then the notice cannot require the use to cease and deemed planning permission cannot arise out of the failure of the notice to require the cessation of that use. The provision therefore has no application to uses that are not alleged by the notice to be in breach of planning control.”
[39]When his attention was drawn to para 2.10 of Annex 2 to Circular 10/97 (see para 24 above) Richards J said that some of the language in that paragraph suggested that deemed planning permission was conferred by section 173(11) on “all the remaining uses or activities on the land” apart from those the cessation of which was required by the enforcement notice. This could be taken to indicate a broader construction of the provision than that adopted in Scott. Counsel for the Secretary of State, however, had accepted that the paragraph was confusing or ambiguous in part, but the judge added that he had rightly submitted that the circular could not affect the construction of section 173(11) or detract from the decision in Scott. He suggested that no doubt consideration would be given to improving the text of the circular so as to reflect the decision in Scott more clearly. An appeal against Richards J’s judgment in Fidler was pending at the time we heard argument in the present appeal.[40]In analysing the issues that arise on this appeal, it is worth examining the position as it was seen from the council’s perspective in September 1997. By this time it had taken enforcement action successfully against the bungalow, which had been demolished. It was aware that Mr Hammond had been using the “garage” for repairs, but it was unable to obtain evidence to prove that he did anything there apart from repairing vehicles for his friends and family, this being regarded as a use ancillary to his use of the dwelling-house, which came to an end by necessity when the dwelling-house was demolished. It was against this background that the council deliberately decided not to issue an enforcement notice in respect of any change of use to a car repair use, because it did not appear to it that the existing use involved a breach of planning control.[41]Its view was that the enforcement notice in respect of the breach of planning control which related to the construction of the new workshop building and the enlarged hardstanding (see para 12 above) could not have required a car-repairing activity to cease because it did not consider that car repairing constituted a breach of planning control prior to the demolition of the bungalow (except in so far as the use of the bungalow as a dwellinghouse and any uses incidental to the use of that dwelling house as such constituted a breach of planning control against which enforcement action had been successfully taken), and it considered that the demolition of the newly constructed workshop building and hardstanding would ipso facto bring any lingering car repair use to an end, since it has never been suggested by anyone that car repairing could be conducted in the open air.[42]It follows that unless the language of section 173(11) of the 1990 Act has the wide meaning suggested by Mr Ground, Mr Hammond could not by virtue of that section have obtained deemed planning permission for his car related activities.[43]I do not consider that the language of that section is apt to bear the wide meaning for which Mr Ground contends. The enforcement notice in question could not have required car repairing activity to cease because car repairing could not be carried on in the abstract, and the notice required the workshop (which was the venue for car repair activity) to be demolished. Furthermore, it did not appear to the council that a breach of planning control was involved in this use. I regard the interpretation Schiemann LJ placed on section 173(11) in Scott as correct, and I do not consider that the section obliges a local planning authority to scour a planning unit for potential breaches of planning control (whether or not it has sufficient evidence to prove those breaches) for fear that planning permission for any such breaches might otherwise be deemed to be granted. If and in so far as the guidance in Circular 10/97 might suggest that the section bears a wider meaning than this court was willing to allow it in Scott, I agree with Richards J in Fidler that the guidance goes too wide in this respect, and I note that counsel for the Secretary of State accepted in that case that the paragraph was confusing or ambiguous in part. The language of this paragraph of the guidance certainly ought to be reconsidered. The focus should be on the particular breach of planning control identified in the enforcement notice and nothing else.[44]The purport of the guidance seems to have been to warn local planning authorities of the risks they might run in a “mixed use” case if they did not include all the matters which appeared to them to constitute a breach of planning control at the outset, and if their notice was subsequently amended or corrected on appeal without explicitly requiring the effective cessation of all the features of the uses that had now been identified on the corrected notice.[45]In the upshot I do not consider that this is an unjust result. The judge made an express finding of fact (see para 21 above) that the evidence was not sufficiently clear to justify a finding that Mr Hammond was involved in anything more by way of car-repairing activities than he told the inspectors in 1998 and 2001. Whatever may have been said by different people from time to time over the years, this was the judge’s finding, and in so far as there were wrecked vehicles on the site Mr Hammond described them to the planning inspector in 2001 as “just junk that lay on the land”. He did not assert at any time that the depositing of this junk that lay on the land was a change of use qualifying for planning permission in its own right. What he was essentially seeking permission for was a car-repair use in a workshop which he should not have built and which the council required him to demolish. He was not seeking permission for the storage of junk in the abstract. I do not consider that the caselaw relating to replica Spitfires or large quantities of dogs or a helipad on the roof of Harrods is of any assistance to him.[46]I would therefore dismiss this appeal on the grounds that the judge was not wrong to require the removal of these wrecked vehicles from the land. I would also remove the stay which Sedley LJ placed on the judge’s order. Lord Justice May:[47]I agree that the appeal should be dismissed for the reasons given by Brooke LJ, and that the stay should be removed.

ORDER

48. Appeal dismissed. Stay imposed by Sedley LJ lifted; no order as to costs save for assessment of applicant’s legal service commission fund costs

Cited in 1 later judgment