Howells, R (on the application of) v Secretary of State for Communities & Local Government & Anor [2009] EWHC 2757 (Admin)

Case No CO/5508/2008[2009] EWHC 2757 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 12th October 2009
Strand
London WC2A 2LL
B e f o r e:
FRANCES PATTERSON QC
Between
THE QUEEN ON THE APPLICATION OF MICHAEL WILLIAM HOWELLSClaimantv
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendantGLOUCESTERSHIRE COUNTY COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Anthony Dinkin QC and Mr Richard Ground (instructed by Messrs Sharpe Pritchard) appeared for ClaimantMr Jonathan Moffett (instructed by the Treasury Solicitor) appeared for 1st DefendantMr Peter Wadsley (instructed by Gloucester County Council) appeared for 2nd Defendant
J U D G M E N T
[1]THE DEPUTY: This is a challenge under section 289 of the Town and Country Planning Act 1990 to a decision letter of the first respondent dated 14th April 2008. By that decision, the first respondent's Inspector dismissed, save in one respect which is not material to those proceedings, the appellant's appeal against an enforcement notice served on him by the second respondent. Factual background[2]The enforcement notice was issued on 2nd November 2006. It related to an area of land at Colethrop Court Farm, Harefield Gloucestershire. It alleged an unauthorised material change of use of land on the appeal site to use for the importation of concrete and other inert building waste materials, together with the storage, crushing and exportation of the same.[3]The appellant appealed against the enforcement notice to the first respondent. The appeal was heard at a public inquiry which lasted for four days in April 2008. As part of his decision, the Inspector amended the plan annexed to the enforcement notice so as to alter the area of land to which the enforcement notice related.[4]Colethrop Court Farm is located in open countryside to the south of Gloucester. It is within the Cotswolds AONB. The enforcement notice required the appellant to cease the importation, storage and crushing of concrete, stone and inert building waste on the enforcement notice land, to remove all of the slab concrete and other uncrushed inert material from the land, to remove all crushed concrete, stone and inert building waste and reinstate the land back to agricultural use.

(g) The decision letter

[5]In his decision letter of 14th May 2008, the Inspector dismissed the appeal and found that the inert waste activities were unpleasant, intrusive and inappropriate and resulted in an unacceptable degradation of the landscape of the AONB (DL27). He found in paragraphs 30 to 38 that the activities would not contribute to a sustainable management of waste and did not accord with waste policies. He dismissed the appeal under ground A. No issue is taken with that finding in these proceedings.[6]The Inspector extended the time for compliance with the enforcement notice and allowed a period of six months within which to restore the site to agriculture and so allowed the appeal in part under ground (g). Under grounds (b) and (d), the appellant's arguments were that the inert waste activities have been carried on for a period in excess of ten years before the enforcement notice was issued on an area of land which was different from, but which was contained within, the enforcement notice and was known at the public inquiry as the "red land". Accordingly, one of the main issues at the public inquiry was that of to what use had the land been put, over what area and over what period of time.[7]The Inspector carried out a careful analysis of the evidence on the use to which the site had been put and set out the conclusions that he drew. Those conclusions, on the detail, are mainly set out in the annex to the decision letter which is to be read as forming part of it. In summary, the Inspector's conclusions were: 1. Until 1992 the site was in agriculture use. (DL9) 2. From 1992 an area to the west of the yard and track was in use for inert waste activities. (DL13) 3. Between mid 1994 and mid 1995, the site was occupied as well by Dunmore Construction and therefore there was a material change of use to a mixed use for inert waste activities and a civil engineering contractors' depot, including the parking of vehicles and the storage of materials, plant and equipment. (DL16) 4. From January 1996, the site was occupied by Preece Contracts for lorry parking. That amounted to a material change of use to a mixed use for lorry parking, inert waste activities and a civil engineering contractors' depot. (DL 17) 5. In January 2002, Preece Contracts ceased to park their lorries on site but that did not amount to a material change of use. (DL19) 6. By November 2004, part of the site in use to the west of the yard track had been substantially extended west into a field that had previously been in use for agriculture. That created a new planning unit and opened a new chapter in the planning history of the land to the west of the track. There was a material change of use from its former mixed use for agriculture, inert waste activities and a civil engineering contractors' depot to a mixed use for inert waste activities and a civil engineering contractors' depot (DL19). 7. By mid 2005, the new planning unit was used solely for inert waste activities. That amounted to a material change of use. (DL19 to 20) 8. As a result, the Inspector found that the material change of use alleged in the enforcement notice had occurred less than ten years before the enforcement notice was used. (DL21)[8]The Inspector concluded also that the planning unit within which waste activities were taking place was different to that shown on the enforcement notice in that it was longer north to south and narrower east to west. The Inspector found that the enforcement notice plan could be adjusted without causing injustice to the appellant and therefore substituted an amended plan to which he attached the enforcement notice.

(d) Legal framework

[9]Under section 172 of the Town and Country Planning Act 1990, the Local Planning Authority may issue an enforcement notice where it appears to it that there has been a breach of planning control and that it is expedient to issue such a notice. Section 173 makes provision for the content and effect of an enforcement notice. Section 174 provides for appeals against enforcement notices. It reads:
"174. Appeal against enforcement notice (1) A person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him. (2) An appeal may be brought on any of the following grounds - (a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation ought to be discharged; (b) that those matters have not occurred; ... (d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters; ... (g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed. ..." "176. General provisions relating to determination of appeals (1) On an appeal under section 174, the Secretary of State may - (a) correct any defect, error or misdescription in the enforcement notice; or (b) vary the terms of the enforcement notice, if he is satisfied that the correction or variation will not cause injustice to the appellant or the local planning authority."
[10]Section 289 of the Town and Country Planning Act provides the right of appeal from a decision on the part of the Secretary of State to the High Court on a point of law. Permission to proceed with the appeal is required. That was granted in this case by Sullivan J on 31st July 2008. The challenge[11]The claimant's challenge is put on four bases: 1. The Inspector exceeded his powers by adding an area of land to the plan annexed to the enforcement notice. 2. The Inspector acted in breach of natural justice by adding land not covered by the original enforcement notice without giving the parties the opportunity to comment. 3. The Inspector failed to consider whether the steps required to be taken by the enforcement notice should have been amended so as to preserve the lawful use as part of the planning unit. 4. Alternatively, the Inspector failed to give intelligible reasons as to why there was not a lawful use within the new area of land shown on the enforcement plan as varied. Ground 1[12]Mr Dinkin QC, who appeared for the claimant, submitted that, whilst the issue of amendment of the enforcement notice was clearly before the inquiry, the Inspector decided the appeal on a different basis to that which had been argued before him. The Inspector concluded that there were a series of material changes of use from 1992 to 2005/6 and that the planning unit was in fact different to that shown on the enforcement notice plan.[13]The claimant's case at the public inquiry was that the enforcement notice plan should be amended by way of drawing in of the western boundary to what was referred to and shown on plan as a blue line. The case of the claimant and the second respondent was summarised on this point in paragraph 45 of the decision letter as follows:
"45. The appellant's case on ground (b) is that the area enforced against is too large because there is no evidence that the western part of the notice land has ever been subject to the alleged unauthorised use. The County Council do not dispute this point but say that they drew the area more widely in order to ensure they had covered all of the affected area."
The claimant accepts that that paragraph was an accurate summary of its position.[14]The claimant's evidence was then directed to establishing a continuous use of what was referred to as the red land for waste activities over a period of at least ten years. The evidence of the second respondent was directed to the other uses that were taking place on the balance of the appeal site. Having heard extensive evidence from both parties, the Inspector amended the enforcement notice plan so as to reflect the planning unit that he found existed. The effect of the amendment was to increase the area of land covered to the north of that originally delineated on the enforcement notice plan but to contract the western boundary. The claimant submits that, as a matter of law, the Inspector is unable to extend the area covered by the enforcement notice planned.[15]Section 137(10) of the Town and Country Planning Act 1990 requires that an enforcement notice shall specify such additional matters as may be prescribed. Regulation 4 of the Town and Country Planning (Enforcement Notices and Appeals)(England) Regulations 2002 sets out that:
"An enforcement notice issued under section 172 of the Planning Act shall specify - ... (c) the precise boundaries of the land to which the notice relates, whether by reference to a plan or otherwise."
One of the consequences of the plan attached to enforcement notice is that it defines the area in respect of which planning permission is sought if there is an appeal under section 174(2)(a) and defines the area of the deemed planning application.[16]The claimant relies on an extract from the Planning Encyclopaedia, Vol 2 P173.25, where it says:
"The Secretary of State may correct or vary a notice so as to direct it to the correct planning unit, though only to cut it down (and therefore probably not so as to bring within the requirements of the notice land not within the original notice) and only if there would be no injustice in so doing."
[17]The difficulty with that submission is that all three cases set in the Encyclopaedia to support the proposition relied upon relate to the earlier provisions of section 88 of the Town and Country Planning Act 1971. The wording of that section is different from that contained in section 176 of the Town and Country Planning Act 1990. It read:
"88(4) On an appeal under this section - (a) The Secretary of State may correct any informality, defect or error in the enforcement notice if he is satisfied that the informality defect or error is not material..."
Under section 176 of the Town and Country Planning Act 1990, the requirement of materiality has disappeared. Previously also, amendments could only be made in favour of the appellant. That requirement too has gone.[18]I was referred to various cases on powers of correction in relation to enforcement notices. The case of R v Secretary of State for Environment v Ahern [1989] 2 PLR 96 was relied upon by all parties. In reviewing the previous statutory provisions Roch J said at page 109:
"The second thing that this decision shows, in my judgment, is that the law has progressed, both by the enactment of section 88A(2) and recent authority from the law that existed under the former section 87(4)(a) and the old decided cases, to the point where the pettifogging has stopped, where artificial and nice distinctions understood only by lawyers no longer prevail, and the Act can be read so that it means what it says, namely that the Secretary of State may correct any (which is my emphasis) defect or error in an enforcement notice if he is satisfied that the correction can be made without injustice to either party to the planning appeal."
That would suggest that, even under the amended section 88A(2) of the Town and Country Planning Act 1971, any deficiency in the notice could be corrected subject to a requirement of injustice.[19]The three cases set out in the Encyclopaedia, are, as I have said, all under earlier and different legislative provisions. I do not therefore find them of any great assistance. For completeness though, the case of Burdle v Secretary of State for the Environment [1972] 3 All ER 240 considered whether the Secretary of State exceeded his powers in ordering the scope of the enforcement notice to be cut down from the whole site to a lean to annex. Bridge J could not accept that the minister had exceeded his jurisdiction. The case of Dunton Park Caravan Site Ltd v Secretary of State for the Environment and Basildon District Council [1981] JPL 511 concerned a reduction in the area to which the enforcement notice related. The Divisional Court held that the variation had prevented the appellant from arguing his case properly and so the amendment had not in fact been in the appellant's favour. In TLG Building Materials v Secretary of State for the Environment [1980] 41 P&CR 243, it was held that an error in an enforcement notice which required the enlargement of the area covered would be material. As I have set out, materiality has no part to play under the current legislative provision under section 176.[20]Although not directly on the point, in the case of Patrick Lynch v Secretary of State for the Environment [1999] JPL 354, Mr George Bartlett QC, sitting as a Deputy High Court Judge, rejected a submission that an Inspector never has power to extend or increase the requirement of an enforcement notice.[21]In my judgment, it follows from the case of Lynch that, if there is the power to extend the requirements of the enforcement notice, the corollary is that there is the power to enlarge the area shown on the plan attached to enforcement notice. More particularly, it flows from the plain wording of section 176 of the Town and Country Planning Act 1990 itself that an Inspector has the power to amend both the enforcement notice and the plan attached to it. That power is not constrained to reducing the area to which the plan relates. There is nothing in the words of the statute that support that interpretation. In my judgment, the power can be used to extend and enlarge the area to which the enforcement notice plan relates. The fundamental constraint is whether that can be done without injustice to either party. It follows that ground 1 fails. Ground 2: whether there was any injustice or breach of the requirements of fairness[22]The claimant submits that by making the amendments to the enforcement notice plan the Inspector acted unfairly to the claimant. That unfairness arose through not being able to address the Inspector on his powers of amendment in relation to the enforcement notice plan and the lack of opportunity to address the Inspector on his findings of the serial material changes of use which he found occurred during the period in respect of which evidence was given at the inquiry.[23]As the first respondent submits, there is nothing in the first point as the claimant cannot complain about an opportunity to make representations that would be wrong as a matter of law. As to the second point, the first respondent submits that section 176(1) has made the Inspector the primary gatekeeper of whether the requirement of injustice is satisfied. He has to be satisfied under section 176(1) that there is no injustice as a result of his intended course and he has to be satisfied generally that the common law duty of fairness is discharged.[24]It is quite clear from paragraphs 22 and 23 of the decision letter that the Inspector had the question of injustice at the forefront of his mind. He expressly considered and set out in those paragraphs the reasons why no injustice would be caused to the appellant. He was mindful that it was his duty to get the enforcement notice right if it could be done without injustice. The claimant submits that the Inspector's conclusions were different from how the case was put to him by either party at the public inquiry. That is not the point. As Ouseley J said in Castleford Homes v Secretary of State for the Environment, Transport and the Regions and the Royal Borough of Windsor and Maidenhead [2001] EWHC Admin 77 at paragraph 65:
"Whilst an Inspector can reasonably expect parties at an Inquiry to explore and clarify the position of their opponents, if an Inspector is to take a line which has not been explored, perhaps because a party has been under a misapprehension as to the true position of its opponents, as in my view happened here, fairness means that an Inspector give the party an opportunity to deal with it. He need not do so where the party ought reasonably to have been aware on the material and arguments presented at the Inquiry that a particular point could not be ignored or that a particular aspect needed to be addressed."
[25]It is self evident that, at an inquiry where the heart of the evidence is about activities on site over a protracted period of time, that there may be different conclusions on the totality of the evidence to that which each of the main parties was urging on the Inspector. After all, the main point in issue is what has been going on, where and for how long. The question is whether findings that there have been a series of material changes of use could have been anticipated. In my judgment, it could. The evidence was extensive and there were a range of different conclusions to which the Inspector could have come and which it was foreseeable that he may come to. In a case in which the claimant was alleging immunity from enforcement due to more than ten years user, the Inspector was entitled to assume that the appellant had put in all the evidence that he wanted to rely upon.[26]It was suggested by the claimant that the Inspector could have either asked for further submissions or sent out provisional findings as to the series of material changes of use. I reject both submissions in the circumstances of this case. What the Inspector had done was to reach conclusions on the evidence that he had heard. That was his job to do. It was not his job to share his provisional findings with the parties in the circumstances of this case. That would extend the appeal process and make it more unwieldy, as well as being burdensome on both the Inspector and the parties. It follows that ground 2 fails also.[27]During the course of argument it became clear that the claimant was now contending that the amended enforcement plan was bad because it was insufficiently precise in that it was impossible to identify the land on the ground. That was no part of the grounds of appeal upon which Sullivan J gave permission to proceed but, in any event, Mr McDonic's witness statement on the part of the claimant does not say that it is impossible to identify the land, the subject of the enforcement notice on the ground, merely that the new plan is confusing because it cannot be reconciled in scale with the original enforcement notice plan. Accordingly, if it had been necessary, I would have found that there was nothing in this point. Grounds 3 and 4[28]The claimant's case at the public inquiry was that part of the area of hard standing to the west of the farm track had been used continuously for the waste use enforced against since 1992. The Inspector found as a fact that land to the west of the farm track was probably from July 1994 (DL16) and almost certainly no later than mid 1995, in a mixed or composite use by the appellant for the alleged inert waste activity and by Dunmore Construction as a civil engineering contractors' depot, including the parking of vehicles. The Inspector went on to find that the material change of use alleged in the enforcement notice, namely the sole use of the enforcement land for waste use, had taken place no later than mid 2005.[29]The claimant submits that the Inspector erred in law because, first, he did not conclude that the change of use to mixed or composite use, including the waste use, occurred more than ten years before the material change of use alleged in enforcement notice. Second, to the extent that the land was used for waste use as part of a mixed or composite use, it was immune from enforcement action and therefore lawful by virtue of section 191(2) of the Town and Country Planning Act 1990. Third, by virtue of section 57(4) of the Town and Country Planning Act 1990 the appellant is entitled to use the land to that extent.[30]The claimant accepts that there is a potential fundamental flaw in its argument in that the Inspector found that with the parking of lorries on the site by Preece Contracts there was a further material change of use. As a consequence, the claimant attacks the Inspector's finding that such a material change of use occurred in January 1996. The claimant contends that parking a few extra vehicles could not amount to a material change of use given that there was parking on the site in any event. Further, the claimant submits that such a finding is inconsistent with the Inspector's later conclusion that in January 2002, when Preece Contracts ceased parking their vehicles, there was no material change of use.[31]Findings on the evidence before the public inquiry are matters of fact and degree for the Inspector. He found that the parking use of the site by Dunmore Construction was ancillary to their primary use of the site as a civil engineering depot. When Preece Contracts arrived on the site in 1996, their sole use of the site was for lorry parking. The Inspector sets out the relevant part of his reasoning in paragraph 72 as follows:
"The addition of lorry parking after January 1996 would have created a change in the character of the previous mixed use because, though both Dunmore Construction and the appellant also used this land to park vehicles, their parking appears to have been one ancillary element within an overall depot use. It was thus materially different to the primary vehicle parking use by Preece Contracts. I consider that because it caused a change in the character of the use of this land, the parking by Preece Contracts would have triggered a further material change in the use of the land after January 1996."
[32]The Inspector was clearly entitled to conclude as he did, as is evidenced from the witness statement of Robert Preece, who gave evidence to the public inquiry and confirmed that his use of the site had been for the parking of his vehicles. The Inspector therefore gave clear reasoning for his conclusion. There was clear evidence to support it. It cannot be said that his finding was irrational in any way. As to the alleged inconsistency on the part of the Inspector when Preece Contracts departed from the site, he found that the cessation of one use within a mixed or composite use did not as a matter of fact and law precipitate a material change of use and relied upon the case of Wipperman and Buckingham v London Borough of Barking and Ministry of Housing and Local Government [1965] 17 P&CR 225. The judgment of Widgery J made it clear that:
"Merely to cease one of the component activities in a composite use of the land would not by itself, in my judgment, ever amount to a material change of use."
Later on he said:
"But whether or not in the circumstances of the particular case there was a material change of use would be essentially a question of fact and degree."
[33]The Inspector was thus quite entitled to conclude that the cessation of the use by Preece Contracts in 2002 did not precipitate a material change of use of the land. He was not acting inconsistently in doing so. It follows, as Mr Dinkin quite properly accepted, that grounds 3 and 4 must fail as he cannot demonstrate an uninterrupted continuous use of land for a period of ten years. In those circumstances, there was no obligation on the Inspector to consider whether the steps required on the enforcement notice should be varied to preserve the right to use any part of the area on the enforcement notice plan for lawful inert waste activities as the issue did not arise.[34]In any event, by November 2004, land to the west of the yard had been substantially extended westwards into the adjacent field, thereby forming a new and enlarged planning unit, as I have set out. That resulted in a material change of use from the former mixed use for agriculture, contractors' depot and inert waste activities for mixed use for a contractors' depot and for inert waste activities. The Inspector was uncertain as to when Dunmore Construction ceased to operate and whether that was before or after the expansion onto the adjacent field, but his decision letter is clear, that there were, as a matter of fact, two material changes of use, one, with the enlargement of the planning unit and, two, with the cessation of Dunmore Construction (DL19 and 20).[35]There is no finding on the part of the Inspector that the two material changes of use occurred simultaneously and there is a clear inference to be drawn from the decision letter that two material changes of use did not occur at the same time. For the claimant to establish a Mansi claim, the claimant would have to establish that the two changes of use occurred simultaneously and in my judgment he is unable to do so. In those circumstances, even were I to be wrong in relation to Preece Contracts, the claimant would still fail in his challenge.[36]It follows that I dismiss this application.[37]MR MOFFETT: My Lady, we are very grateful for that. That being the court's judgment, I would ask for an order that the claimant pay the Secretary of State's cost. A schedule of costs were provided. I do not know if your Ladyship has it.[38]THE DEPUTY: No. I have not seen any costs from any party.[39]MR MOFFETT: I apologise about that. (handed) My Lady, as I understand it, there is no objection in principle to an order that the claimant pay the Secretary of State's cost -- or the amount.[40]THE DEPUTY: That is right, Mr Ground?[41]MR GROUND: Yes, that is right. But we were, this morning, handed a schedule from Gloucester. I do not know if you have a copy of Bolton to hand.[42]THE DEPUTY: I have not, but I am very familiar with it. Can we just deal with the first respondent's costs first, as there is no issue as to that? I order that the claimant pays the first respondent's costs in the agreed sum of £10,276. Right, yes, Mr Wadsley?[43]MR WADSLEY: My Lady, there is an application for the second respondent's costs. I appreciate entirely that that has to be based upon Bolton. I have copies of the judgment, if your Ladyship wants to see them, but I suspect you --[44]THE DEPUTY: Well, I am very familiar with it. I am happy if you want to direct me to a particular part of the judgment, then of course I will refresh my memory.[45]MR MOFFETT: No, indeed, I do not think so, save to make two points. The first point is that --[46]THE DEPUTY: I do not as yet have any schedule of costs from you.[47]MR WADSLEY: I do beg your pardon. There is a schedule. I am so sorry. (handed)[48]THE DEPUTY: Yes.[49]MR WADSLEY: I make two points only. The first point is, as Lord Lloyd said in Bolton, that the only rule about costs is that there is no rule and that the costs are entirely in the discretion of the court. The second point I make in relation to this case is that it was -- as is acknowledged, both by the appellant in his grounds and acknowledged also in the Inspector's appeal decision, a complicated series of interlocking issues about the area of the planning unit about the uses that would carry on, where they would carry on and so on.[50]In my respectful submission, the evidence put in by the County Council in Mr Boucher's witness statement on those issues did materially assist your Ladyship -- I would like to think it did in any event, did materially assist the court in coming to a conclusion and that, in the slightly unusual circumstances of this case, there is justification for a second order.[51]THE DEPUTY: Right, thank you. Mr Ground?[52]MR GROUND: Yes. I did not follow actually whether you did get a copy of Bolton.[53]THE DEPUTY: I have not, no.[54]MR GROUND: Can I just pass one up, just so you are able to see as I understand my learned friend. I know it will be very familiar with you, but it may be just to have the exact words in front of you is helpful.[55]THE DEPUTY: It is whether there is a fresh point, is it not, or something which the Secretary of State could not have raised.[56]MR GROUND: Your Ladyship is absolutely right and the key part I think is at H on page 1178 and the developer in that case would not normally be entitled to his costs unless there is a separate issue on which he was entitled to be heard and here I do not need to labour the point, but your Ladyship will be well aware that there was not a separate legal issue that the Council made. The three points that they made following on from the Secretary of State were really that, three points, but they were not separate legal issues, and, as to the witness statement, I mean, I think my learned friend did not even refer to it in his submissions and the factual context of the decision letter was sufficient.[57]THE DEPUTY: Right. Thank you very much.[58]So far as the second respondent's claim for costs are concerned, I am not going to order costs of the second respondent. It seems to me that they were here in a supportive role to the Secretary of State and did not raise any separate issues.

Cited in 1 later judgment