The land at Westhorpe Farm, Little Marlow in Buckingham, has a tumultuous planning history. Innumerable attempts have been made to enforce planning controls leading to much litigation. This is another attempt. It could be the last.

On 29^th September 1952 Buckinghamshire County Council (“the Council”), as the local planning authority, the respondent to this appeal, granted permission pursuant to the prevailing Town and Country Planning Act for the “excavation of sand and gravel at Westhorpe Farm” but subject to conditions, number 4 of which was:-

There were modifications to that planning permission granted in 1969 and 1978 but the detail thereof does not matter.

Among the buildings on the site at that time was a workshop then undoubtedly used as part of the quarrying enterprise. In about 1984 Matthews & Brown Engineering Ltd. entered on the site to carry out some plant fabrication for the then mineral operator and may well have used the workshop for that purpose. It seems, however, that after some months the company took over a substantial part of the workshop for use as the base for its steel fabrication business. In 1986 the original workshop was partly demolished and a much larger self-contained rectangular building was erected solely for the use by the company in its engineering business. A very much smaller portion of the old structure was retained by the mining operator for uses ancillary to the gravel extraction business still being conducted on the site. This appeal relates to the new workshop and not to the old structure.

The Council became aware of this development and made enquiries about it. The site owner, a Mr Randall, misleadingly informed the Council that the building was being used for purposes ancillary to the mining operations being carried out on the wider area around the site. Similar false information was given by the mining operator, a Mr Dodds. The misrepresentations were repeated by the owner and the mining operator in reply to a planning contravention notice in 1993. There was, however, no evidence that either the company or its director, Mr John Brown, who are the second and third defendants in the action which concerns us, had any knowledge of such misrepresentation and so there was no evidence that either misled the authority or was a party to misinformation by others.

There is no doubt that the company began to use the old workshop from about 1984/5, that use being evidenced by the production of invoices and receipts for rent which went back to at least October 1985. There is equally no doubt that the company occupied the new rectangular workshop from the time of its erection and continued its business on the site without interruption.

Eventually on 8^th December 1995 the County Council issued an enforcement notice (“the 1995 Notice”) pursuant to s.172(1) of the Town and Country Planning Act 1990 (the Act) alleging that:-

Although that may have been an entirely accurate description of a breach of planning control which was undoubtedly taking place, Mr Brown and his company nonetheless appealed against the 1995 notice pursuant to s.174(1) of the Act. One of the grounds on which the appeal was based was that provided for in s.174(2)(d) of the Act namely:-

Mr Brown was relying upon s.171B of the Act which provides that the time limit for taking enforcement action in respect of a breach of planning control consisting in the carrying out without planning permission of building operations is four years beginning with the date on which the operations were substantially completed: see s.171B(1); and the time limit for taking enforcement action in respect of a breach of planning control such as a breach of a condition attached to a planning permission or the making of a material change of use is ten years: see s.171B(3). Thus the latest times for taking enforcement action were no later than the end of 1990 for the erection of the new workshop and 1995 for the change of use.

That appeal was first heard by the inspector, Mr Joyce, who found in his decision letter dated 27^th March 1997 that an unauthorised material change of use had taken place prior to 8^th December 1985 and had continued since that date. He treated the new workshop as a new planning unit carved out of the original Westhorpe Farm. The appeal therefore succeeded on ground (d) and the enforcement notice was quashed. He had to deal also with the contention of the Council that Mr Brown, who was the appellant, was estopped from pursuing the appeal because of the misrepresentations made to the Council by the landowner Mr Randall. He rejected that submission because:-

The Council appealed. On 19^th December 1997 Mr Gerald Moriarty Q.C., sitting as a deputy judge of the Queen’s Bench Division, allowed that appeal and remitted the matter to the inspector on the ground that Mr Joyce’s decision letter had not dealt adequately with the issue of the competency of Mr Brown personally to bring an appeal. He held that the representations made by the landowner did not concern any rights or interests created in or over the land and that no estoppel could arise.

The Council now changed tack. On 9^th January 1998 the Council issued an enforcement notice, which has been called “Enforcement Notice No. 4”, in which it was alleged that there was a breach of planning control imposed by Condition 4 of the 1952 Planning Permission which I have already recited. It was alleged that:-

It is common ground that the excavation of sand and gravel had come to an end and that further excavation would indeed be unlawful. The Council required various steps to be taken including as Step 1:-

This Notice No. 4 was then appealed but the appeal was withdrawn. The notice, therefore, stands unchallenged.

In August 1999 the appellant, North West Estates plc, showed interest in acquiring the land. Its solicitors were given a schedule setting out the enforcement notices registered as local land charges which affected the land, including Enforcement Notice No. 4. The appellant acquired the land from Mr Randall on 1^st November 1999 and thus became liable to take such steps as were lawfully required by the notices.

The inspector, this time Mr Wilkinson, conducted the inquiry pursuant to the remission to him by Mr Moriarty. In his decision letter dated 8^th November 1999 he said:-

He had also dealt with questions of estoppel by representation, treating the case which had been advanced before Mr Joyce as one based on proprietary estoppel but he too held that there was no evidence that Mr Brown was a party to any deception of the Council and on that basis he dismissed that part of the Council’s case. The Council appealed.

Taking account of the fact that there was no longer any subsisting appeal against Enforcement Notice No. 4, the Council decided that, rather than entering the land and themselves taking the steps for compliance with the notice as permitted by s.178, injunctions should instead be sought pursuant to s.187B. On 27^th July 2000 the Council issued a claim for mandatory injunctions against North West Estates plc for compliance with six enforcement notices, including No. 4, and an order was sought that the appellant permanently remove from the land all buildings, huts, portacabins and other structures that are not required for and actually used for agriculture and other lawful use of the land under a General Permitted Development Order. Mr Brown and his company Matthews & Brown Engineering Ltd. were joined in order to be bound by the order of the court.

Meanwhile the Council’s appeal against Mr Wilkinson’s decision was proceeding. The Council were again contending that the inspector was wrong to have concluded that Mr Brown was a competent appellant and that he was not estopped by the representations of the landowner. That appeal was heard by Mr Robin Purchas Q.C. sitting as a deputy judge of the Queen’s Bench Division on 31^st August 2000 and his judgment is reported as Buckinghamshire County Council v Secretary of State for the Environment, Transport and the Regions [2001] 1 PLR 38. He dismissed the appeal. In the result the 1995 Notice never took effect.

On 31^st May 2002 Jacob J. granted injunctions including as relevant for the purposes of this appeal the order that North West Estates plc remove all buildings from the land by not later than 31^st March 2003. He did, however, give permission to appeal against that order so far as it concerned the workshop building and he directed that the appellant should not be required to remove the workshop until two months had elapsed from the determination of this appeal.

He reviewed and commented on some of the authorities. Mansi v Elstree RDC (1964) 16 P & CR 158 is a well known case. The local planning authority served an enforcement notice reciting that the appellant had changed the use of a glasshouse on a nursery garden from use for agricultural purposes to the use for the sale of goods and requiring the appellant to discontinue the latter use. No reference was made in the notice to the former subsidiary use for the retail sale of nursery produce and other articles nor was there any provision for its continuance. The court held that the Minister:-

Section 285 of the Act contains an important provision as to the validity of enforcement notices. It is called a “privative provision” though it has little to do with “privation”. It provides:-

The judge held that “it may be legitimate for a condition in a planning permission to restrict an established use” and he cited Kingston L.B.C. v Environment Secretary [1973] 1 W.L.R. 1549 as authority for this proposition. There planning permission was granted for the rebuilding of a railway station on condition that the land shown allocated for car parking purposes on the drawings approved should be made available for such purposes at all times and should be used for no other purpose. The station was duly rebuilt but the car park was not provided. The local planning authority served an enforcement notice requiring compliance with the condition and it was held by Lord Widgery C.J. at p.1553 that the words of what is now s.72 of the Act are wide words which:-

The judge held that s.187B conferred a discretion on the court. It provides:-

The judge then recited paragraphs 38-41 from the judgment of Simon Brown L.J. in South Buckinghamshire D.C. v Porter [2002] 1 W.L.R. 1359 on the approach to s.187B. There the appellants were gypsies living in mobile homes on land occupied in breach planning control. They alleged that the enforcement procedure violated their right to respect for their private and family life and home protected under Article 8 of the European Convention on Human Rights. I quote more selectively from this judgment:-

Having reviewed the law the judge turned to the issues raised in connection with the several enforcement notices with which he was concerned. Dealing with Enforcement Notice No. 4, which is the only one the subject of this appeal, the first point taken by Mr Lindblom was that the area of land called “the spoon” and the relevant buildings the council want removed are all outside the plan to which Condition 4 of the 1952 Permission related. He rejected that submission and there is no appeal against that finding. This is, in my judgment, important because we have to approach the appeal on the basis that the new workshop is on land covered by the enforcement notice and is not outside it or excluded from it. Consequently compliance with the enforcement notice as it stands requires removal of the workshop. Mr Lindblom Q.C. had, therefore, to persuade the judge, as he has to persuade us, that the workshop can be excluded from the operation of the notice.

The judge then dealt with Mr Lindblom’s “second and third points” which related to the past planning history of the workshop. He said:-

Mr Lindblom Q.C. submitted that the result of the erection of the new workshop as long ago as 1985/6 and the carrying out in that new building of engineering works which were not ancillary to the use of the land for mineral working or agriculture was that this new workshop, being physically separate and distinct and being used for substantially different and unrelated purposes to the main unit of occupation, henceforth had to be considered as a separate planning unit. He relied on Burdle v Secretary of State for the Environment [1972] 1 W.L.R. 1207, 1212G. I am prepared to accept the first step in his argument.

So he argues, given the findings made in the 1995 enforcement notice proceedings, this established use for the new workshop must be treated as lawful. Again I am prepared to accept that. In the light of the use of the workshop for more than ten years, enforcement proceedings could no longer be taken. Section 191(2) then applies and it follows that:-

Building upon this foundation, Mr Lindblom then argues that upon a proper construction of Condition 4 of the 1952 Permission and the breach alleged in Enforcement Notice No. 4, the “buildings” referred to in both should be read in such a way that the enforcement notice only takes effect with reference to the remains of the old buildings and does not “bite” upon the new workshop, the erection of which and the current use of which have become lawful. The scope of a condition must always be understood in such a way as not to impinge more upon lawful use then is fair and reasonable. He submits that if that construction can be given, then s.285 does not arise at all.

He also submits that the judge was wrong in treating the principle in Kingston, defined as “a condition can touch an established use”, to be “all that is happening here”. He submits, to quote from his skeleton argument:-

Mr Sefi counters these arguments by submitting first that a purposive construction must be given to “buildings”. The purpose was, and, because Condition 4 operates prospectively, still remains to restore the land to the meadowland it was before the quarrying began. It is about “taking away minerals and leaving green fields”. I find this argument attractive. “Buildings”, unless there is some other reason for not giving the word its literal as well as its purposive effect, means all the buildings on the affected land and that includes the new workshop.

Secondly even if separate lawful use is established for the new workshop, this use is co-terminous with the existing use of the land out of which it has been carved. The lawful use he submits “does not trump the existing planning permission”. Thirdly, if I correctly summarise his submission, just as in Kingston a condition can interfere with the user of land which is outside the site to which the permission being granted relates, so any new planning unit created by the established use should be treated as subject to the condition which affects the whole site of which it was once part.

He submits, however, that none of these arguments call for decision because they should all have been raised in a challenge to the validity of the enforcement notice and that not having been appealed, s.285 precludes the court from questioning its validity now.

In my judgment Mr Sefi is correct to submit that it is too late for the appellant to raise these arguments. Mr Brown withdrew his appeal against Enforcement Notice No. 4 but the appellants acquired the land with notice that it was affected by that enforcement notice. An appeal would have been the proper means to challenge the notice’s application to the new workshop and to seek to exclude the notice operating upon it, as well to assert that this established use was free from Condition 4. All of Mr Lindblom’s arguments above could have been and therefore should have been raised by way of appeal on any one or more of the following grounds permitted by s.174(2), namely:-

I conclude, as the judge did in paragraph 29(1) of his judgment:-

As Lord Fraser of Tullybelton noted in Davy v Spelthorne B.C. [1984] 1 A.C. 262, 272:-

I agree, therefore, that it is strictly unnecessary to answer the questions raised by Mr Sefi (or attributed by me to him) in paragraph 33. My tentative view is that he is right. The appellant was lawfully entitled to use the new workshop for its engineering business but only so long as some quarrying operation was still being conducted there. The appellant knew or must be taken as knowing that the terms of the 1952 permission which ran with the land stipulated that the quarrying operation had a finite duration and that upon its coming to an end the land should be restored to green fields. The company entered upon the land and carried on business there knowing full well it could only lawfully use the land so long as the mineral extraction was continuing.

I must deal with the Kingston point. True it is that there are factual differences between Kingston and this case. True it is also that the judge was quite cryptic in commenting that what was happening in Kingston was all that was happening here. Reading the judgment as a whole, however, one sees that he identified the principle to be drawn from it to be that “it may be legitimate for a condition in a planning permission to restrict an established use”, see paragraph 21 of his judgment. We see from paragraph 47 how he was applying that with reference to one of the other enforcement notices before him. He said:-

The position at this stage of the argument is therefore this. The buildings are on the spoon-shaped parcel of land which is the subject of the enforcement notice. The enforcement notice was not appealed. Even if it had been open to the appellant to appeal against the enforcement notice and submit that because the established use in the new workshop is lawful, therefore the enforcement notice should be amended to exclude the workshop from its operation (the Mansi-type defence) it is now too late to run that argument. The enforcement notice stands. The appellant should comply with it.

Thus Mr Lindblom is thrown back to submitting that when the court comes to consider how to exercise the discretion conferred by s.187B, the court must have regard to the Mansi-type defence that would have been available to it. The established use is lawful, it runs with the land, so he argues, and so the court cannot ignore that which is lawfully being done.

Section 187B undoubtedly gives the court a wide discretion. South Buckinghamshire D.C. v Porter is an authority which would permit the planning history of the site to be considered. The relevant feature of the planning history upon which Mr Lindblom relies is, of course, the findings made in the 1995 enforcement notice appeals that there was established use for the engineering operations being conducted from the new workshop. That may be a matter of history. As a feature of the background the court can note it. But it cannot be elevated into a disguised challenge to the validity of the enforcement notice itself. It is too late for that. South Buckinghamshire D.C. v Porter must be read with caution. Article 8 rights for the gypsy families were there engaged and that is a factor which weighs heavily in the scales to counter the weight which giving effect to the enforcement notice has. Moreover, no arguments appear to have been addressed to the court about s.285 and the ban on questioning the validity of the enforcement notice. I do not see that the judge erred in concluding that the Mansi-type defence cannot be regarded “as an absolute defence in any event” since “the enforcement notice stands unquashed and unchallenged and is protected by s.285. The most that Mr Lindblom can ask is that the alleged established use be taken into account in exercising the court’s discretion”. But by now it is coinage which has depreciated in value.

Next Mr Lindblom attacks the judge’s taking account of the fraud of the appellant’s predecessor in title, the “downright lie by the landowner” that the rebuilding of the workshop was for uses ancillary to the quarrying activity. He submits that the fraud should only operate as against the wrongdoing landowner and should not be used to override or alter the accrued rights under the statute for the lawful established use however obtained. He stresses again that it now runs with the land. That is as may be but the court is exercising its civil jurisdiction to grant an injunction, an equitable remedy. The judge was fully entitled to take that fact of the planning history into account and to hold it against the appellant. He would not have had a ghost of a defence of established user if the truth had been told. A court of equity would be bound to take the dishonesty into account and I see no error on the judge’s part at all.

Then Mr Lindblom complains that the judge fell into error when observing that there was no evidence that the enforcement would affect Mr Brown or his company. What was relevant for consideration, he submits, is the obvious adverse affect the injunction would have on the appellant. I cannot accept that the judge did not appreciate that the consequence of granting the injunction would be to close down the business of the appellant. That may be unfortunate. But it is the consequence of his acquiring the property knowing that there was an enforcement notice in force which required the workshop to be removed. The appellant cannot complain.

I can find no error of principle in the judge’s approach. He accepted the validity of the enforcement notice at face value. The workshop is within the land specified in the enforcement notice. That which the enforcement notice says has to be done to comply with it, must be done by the landowner. That requires the removal of the workshop. The next question is whether there is any good ground for not exercising discretion to enforce the notice. I can see no good reason for not enforcing it and every good reason why this long sorry chapter should now be brought to a conclusion. I would dismiss the appeal.

I agree.

I also agree.