Fidler v First Secretary of State Reigate & Anor

Under the heading “Assessment of changes since 1991” (para 86-93), the Inspector set out the factual conclusions relevant to the main legal issues. He considered the correct approach to be to take the unit “as it existed in March 1991” and to consider “all the physical changes since then as well as the changes in uses and occupiers”. He noted that the area used for the various uses had increased by 50% from March 1991; that “in terms of appearance” open storage had extended north of the buildings resulting in “a far larger area of open storage”; and that the size of the main building area “was basically doubled” by the erection of unit 9 in 1991, used generally for non-agricultural purposes.

In 1998, the structure of units 9 and 10 “was virtually rebuilt”, and, in the Inspector’s view “changed totally in character in my view, particularly in how it could be used”:

“88.

… What had been basically a 'Dutch barn' with open ends and some corrugated sheeting on the two side elevations of a plain steel framework was turned into a purpose built industrial type building (despite the corrugated cladding on the outside which can also be found on a modern agricultural building) with block work walls and partitions, including some first floor sections, and much of it with a proper concrete floor.

89.

The changes in the type of space offered for rent after the 1998 alterations, in my view, facilitated a change in the type of use there. It changed from a basically 'open' covered area under the roof of units 9 and 10, used for the storage of vehicles and other items which could be stored outside just as easily as inside, plus some industrial type activities including repairs to large vehicles, to one that provided secure, weatherproof storage on a large scale that would not have been possible in the old units 9 and 10.

90.

Further, it has resulted in the occupation by 2 companies specialising in the delivery of parcels which have more vehicles and staff on site than most and the establishment of a company providing the equipment for and running corporate games events which also has many staff and vehicles on site …. It was not disputed that these three occupiers had a higher generation of traffic to and from the site than others nor was the answer … that there had been more than a doubling of traffic movements at the site in the three years 1999 to 2002 …. This has also resulted, in my view, in a materially different character of use at the site….”

He acknowledged that the number of occupiers had remained fairly constant over the period; that the various uses undertaken by those occupiers had not, in principle, been different “in terms of the number of uses that have been taking place at any one time and the general description of what they did”; and that, although some uses had commenced during the 1990s, “the sorts of vehicles, materials and equipment stored at the site by them was not that different to other existing occupants …” (paras 91-2). However, the situation changed after 1998 when the major building alterations were carried out:

“Lamerack (the corporate games company) came in September 1998 and two other companies, who ran courier services amongst their uses, came in October 2000 and January 2001. These three users according to the evidence are responsible for most of the vehicles, staff and traffic movements and they were, in my opinion, a materially different type of activity on the site to what had been there in 1991 even though the first is probably a Class B1 use and the other two are B8 uses, of which there were some on the site throughout the whole 10 year period.” (para 93)

In paragraphs 94 to 100, he expressed his conclusions on the central issue whether there had been a material change in use since 1991:

“94.

In my view, there were fundamental changes at the appeal site between March 1991 and March 2001. These were the increase in the land area covered by the use; the increase in building mass and, therefore, the consequent increase in the amount of usable covered floor space; the large increase in the area of outside storage; the virtual rebuilding of units 9 and 10 almost as purpose built commercial buildings; the nature of the more recent occupiers of the site, in particular, of the buildings, and also the level of traffic associated with the various uses and occupiers of the site particularly the more recent tenants.”

He summarised the various changes over that period, and concluded:

“99.

Whilst I accept that it might not be possible to say that any one of these changes by itself resulted in the material change in the use of the site, I consider, as a matter of fact and degree, that the use at 7 March 2001 was materially different to that which had existed on 7 March 1991. It was not just a more intensive use of the site but one where the activities making up the uses, the land area used; the extent of storage, both inside and outside; the buildings in which the uses were being undertaken and the level of traffic generated, if all taken together, describe a use that is materially different in character and nature.

100.

I conclude, on the basis of the evidence that was put before me, that those changes were so significant that the mixed use there at the time the Notice was issued had, by its very different nature and character, come about through a material change of use from the use which had been there on 7 March 1991.”

Under this heading Mr Clay, on behalf of Mr Fidler, advances five points:-

I hope I will be forgiven for dealing with these points relatively shortly, since in substance I agree with the Judge, who dealt with them in considerable detail. Taking them in turn:-

Before leaving this issue, I should mention one other case relied on by Mr Clay, particularly on point (iii): Kensington and Chelsea RBC v Secretary of State and Mia Carla Ltd [1981] JPL 50. That case concerned the extension of a London restaurant from the building into the garden. The council complained that, in quashing the enforcement notice, the inspector had failed to take account of the possibility a material change by “intensification”. It was held by the Divisional Court that, under the powers of amendment then available, it would not have been open to the inspector to incorporate such an allegation in the notice. In the course of his judgment Donaldson LJ criticised the use of the term “intensification” and added:-

“If the planners were incapable of formulating what was use after intensification and what was use before intensification then there had been no material change of use.”

I do not question the correctness of that decision on its own facts, and under the limited powers of amendment then available. However, I would suggest considerable caution before applying statements from pre-1991 cases to the new statutory regime, one of the purposes of which was to give -

“… a clear signal to the courts and others that the more legalistic features of current case-law and practice can be abandoned.” (1989 report p 73)

In any event, on the facts of the present case, I have no doubt that it was open to the Inspector to find that there had been a material change in the character of the use of the site, for the reasons he gave, without needing to formulate different “before and after” descriptions of the mixed use.

In conclusion on this issue, I see no grounds for criticism in principle of the Inspector’s conclusions or the Judge’s rejection of the appeal on this ground. As has been emphasised many times in the courts, an over-technical and analytical approach to enforcement notices in such cases is inimical to the interests of justice. The inspector was fully entitled to hold that there had been a substantial change in the character of the use during the ten years, particularly following the major changes to units 9 and 10 in 1998. That case was fully ventilated and examined at the inquiry and there was no injustice in the inspector’s conclusions.

The answer to this issue depends on the interpretation of section 173(11) of the 1990 Act:

“(11)

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.”

As has been seen, the Council took enforcement action in 1995 against the McNicholas use, but not against other activities on the site. The terms of the notice are significant. The breach of planning control alleged was:

"Without planning permission, change of use of the said land from use for agriculture to a mixed use for agriculture and an engineering contractors' depot involving the storage of plant, equipment, materials, vehicles, portable buildings and machinery".

The requirement of the notice was expressed thus:

"(i)

Cease the use of the land for an engineering contractors' depot. …

(ii)

Remove from the land all plant, equipment, materials, vehicles, portable buildings and machinery used or stored in connection with the use of the land as an engineering contractors' depot …."

Mr Clay submits that this was a case of deliberate “under-enforcement” for which section 173(11) was designed. There is no doubt that the Council was aware of the range of activities on the site by that time. Indeed, one of their witnesses at the 1997 inquiry referred to a visit in 1992, where she had seen various non-agricultural activities, “such as motor vehicle repairs, the storage of coaches, lorry containers, soil screening and parts of aircraft…” Although the Council could have taken enforcement action in respect of these uses, the enforcement notice was deliberately confined to the McNicholas use. Accordingly, says Mr Clay, planning permission is deemed to have been granted for those other activities.

The Judge rejected this submission. He considered that the sub-section only applied to activities included in the description of the breach in the notice. Even if the Council was aware of other non-agricultural activities on the site, they were not referred to in the notice, which mentioned only “a mixed use for agriculture and an engineering contractors’ depot” (accepted by both parties as a reference only to the McNicholas use).

On this point, Richards J considered himself bound by the decision of this Court in Scott v. Secretary of State for the Environment (16 October 2000; apparently unreported, even though the first instance judgment was reported at [2000] JPL 833). That case concerned an enforcement notice relating to the tipping of large quantities of inert waste in a valley. One argument was that a culvert, which had been constructed to take a stream through the waste, and which was not mentioned in the notice, should be treated as having permission by virtue of section 173(11), and that the inspector had erred in failing to take that into account in considering the overall planning merits of the case. That argument was rejected. The court accepted the inspector’s view that section 173(11) only applied to works mentioned in the enforcement notice as constituting the breach. Schiemann LJ said:

“… The enforcement notice manifestly did not allege that 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 …”

Mr Clay has sought to distinguish Scott, which concerned very different facts. He has also sought support in the terms of a Departmental Circular, 10/97, which states:

“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 the enforcement notice, the provisions apply to any remaining uses or activities on the land, and 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 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 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 the 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…….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 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…” (Annex 2 para 2.10, emphasis added)

It is true, as Mr Clay says, that the first italicised passage appears to suggest that the deemed permission will apply to any uses remaining on the land once the notice has been complied with, even if not referred to in the notice. On the other hand, the second passage appears to limit the effect of the subsection to uses which are specified in the notice but not required to cease. Before the Judge, Mr Mould accepted that the paragraph was “confusing or ambiguous”. He told us that a revised Circular was in the course of preparation, subject to our decision. In any event, as the Judge said, the terms of the Circular cannot govern the construction of the section.

In my view, the Judge was right to treat Scott as definitive on this issue. That view has been confirmed by the court in a judgment given since the argument in this case (Maldon DC v Hammond [2004] EWCA (Civ) 1073, to which Brooke LJ was also a party).

However, in view of my past role it may be appropriate for me to add a few words. It is useful to remind oneself of the background of the subsection, which lay in the gradual widening of the statutory powers of authorities to “under-enforce” (following the doubts raised in Copeland v Secretary of State (1976) 31 P&CR 403). Its immediate predecessor was section 87(16) of the Town and Country Planning Act 1971 (introduced by amendment in 1981). That applied to an enforcement notice in respect of development consisting in “the erection of a building or the carrying out of works”. In such a case, it was open to the authority, rather than requiring removal of the whole building or works, to require steps simply for the purpose of “removing or alleviating injury to amenity caused by the development” (s 87(10)(b)). Once the notice was complied with, section 87(16) gave deemed permission for the “retention of the building or works as they are a result of compliance with the notice”.

In my 1989 report I recommended that section 87 should be clarified and expanded, to make clear that under-enforcement was permissible in relation to all types of breach, and that authorities should have “a broad discretionary power to deal with the effects of a breach” (p 73). In that connection I added that section 87(16) –

“… needs to be extended to cover any case of under-enforcement to make clear that permission is deemed to be granted for the works or use as they are left as a result of compliance with the notice” (p 75).

In retrospect, I can see that this brief comment required further elaboration. It gave insufficient weight to the important practical distinctions in this respect between operational development on the one hand, and uses on the other. In relation to operational development, the requirements of the notice will normally be defined in physical terms (for example, the removal of part of a building); and there should be little difficulty in identifying “the building or works as they are a result of compliance with the notice”. In relation to uses, as this case shows, the position may be much less clearcut. Some other means is required to define what is and is not within the scope of the deemed permission.

The draftsman of the new provision was more precise. He introduced the pre-condition that the activity must have been one which the particular enforcement notice could have required to cease. It is not enough that it could have been the subject of enforcement action under a differently drafted notice. As Schiemann LJ observed, an enforcement notice cannot require an activity to cease, unless it is part of the breach of planning control identified by the notice itself. Not only is this interpretation supported by the wording of the section, it also makes practical sense for all parties. It ensures that the authority does not give deemed permission by an oversight; and, for those interested in the land, it provides clarity as to what is and is not permitted.

Accordingly, I reject the appeal under this issue also.

Finally, I would add one comment on a point which may become relevant to the appeal under ground (f).

During the hearing I expressed concern that the requirements of the notice might be too drastic, in that they appeared to exclude activities which seemed on the evidence to have been carried on for more than ten years, and to which in any event the authority had apparently no objection at the levels of use which prevailed for a large part of that period. Ground (f) enables the appellant to argue that the requirements of the notice exceed what is necessary either to remedy the breach of planning control or any injury to amenity caused by the breach.

Mr Clay referred us to the notice of appeal, in which, under ground (f), it had been contended that it would be excessive to uphold all the requirements of the enforcement notices since -

“Some commercial activity has taken place on the site for many years, without the LPA considering that enforcement action was necessary… There can be no justification for reducing the scope of uses to less than the LPA presumably though were sufficiently harmless not to warrant enforcement action in 1995 and 1997.”

It is not clear to me how far this aspect was pursued by Mr Fidler at the inquiry. The inspector did give some consideration to the extent of activities which should be regarded as lawful. He noted that the council’s witness had accepted that the use of the site for hay and straw dealing and agricultural contracting was lawful having been commenced more than ten years before July 1992; and that Mr Fidler himself in evidence had only referred to those two uses as being lawful in his questions to his own planning witness and to the council’s planning witness (paras 104 to 105). He did not refer to any point having been taken by Mr Fidler as to other non-agricultural uses. In his conclusion under ground (f) the Inspector simply commented that he did not regard the requirements as excessive.

Since the matter is to be remitted to the Secretary of State by virtue of the order of Richards J, it will (as Mr Mould concedes) be open to Mr Fidler to take any relevant arguments under ground (f) in the re-opened appeal.

I would, however, draw attention to the width of the powers available to ensure that the requirements are tailored to the harm which the authority is seeking to control. The difficulty, in the case of a mixed and fluctuating use such as the present, may be to define with any precision what is permissible or acceptable. In the 1989 report I referred by way of illustration to the case of Lee v Bromley LBC (1982) 45 P&CR 342. In 1976, the Secretary of State had upheld an enforcement notice requiring the discontinuance of the current use of a site for scrap metal collection. The use had begun on a more limited scale before 1964 (which under the legislation then current gave it immunity from enforcement). The Secretary of State sought to protect this position by a proviso in the notice to the effect that the notice should not apply to prevent the use so far as it was found to have existed before 1964. The court upheld the notice, while expressing concern at the difficulty for the landowner of discovering precisely what he could or could not do under it. In my report I commented -

“… it would be desirable to include an express power not only to discontinue a use, but also to impose limits within which it may be carried on. This may help to enable a clearer benchmark to be provided in some cases of intensification, or in fluctuating uses (for example by reference to numbers of vehicles, noise limits, parts of the site.)” (p 74(v))

Section 173(5)(d), as I understand it, gives effect to that recommendation by enabling the notice to prohibit the carrying on of an activity “except to the extent specified in the notice”.

I make no criticism of the way the authority or the inspector approached the matter against the confused factual background of this case, and the arguments as presented. Under ground (f), it was open to Mr Fidler to propose specific limits on his activities, to bring them within levels acceptable to the authority. He does not appear to have done so. The burden was on him. I mention the point only to indicate that there may be realistic alternatives to requiring the complete cessation of commercial uses on the site.

For these reason, I would dismiss the appeal, and confirm the Judge’s order that the matter be remitted for reconsideration, in the light of his judgment and that of this court.