Staffordshire County Council v Challinor & Anor

Planning control is the creature of statute. It is now almost exactly sixty years since Parliament, on 6 August 1947, passed the first truly comprehensive town and country planning legislation. For most of the subsequent period, since in fact August 1960, it has been a feature of the statutory scheme that, once an enforcement notice directed at a breach of planning control has been through the appeal process or the time for appeal has expired, the notice cannot be challenged in any subsequent proceedings, civil or criminal, on any ground on which an appeal against the notice lay. That prohibition is now contained in section 285(1) of the principal statute now applicable, the Town and Country Planning Act 1990 (“the 1990 Act”). The terms of the subsection are set out in paragraph 36 of this judgment.

One of the grounds on which an appeal to the Secretary of State against an enforcement notice may be brought under section 174 of the 1990 Act is that

This civil appeal raises as a principal issue the question whether and (if so) to what extent in subsequent proceedings based on an enforcement notice which has come into effect a court may go back to look at existing use rights as they existed before the issue of the enforcement notice. Does it make any difference that those earlier use rights were recognised in a Certificate of Lawful Use (“CLU”) granted before the enforcement notice?

I shall turn to the facts in more detail in the next section of this judgment, but in the present case both civil and criminal proceedings were brought by the relevant local planning authority as a result of a non-compliance with an enforcement notice. The authority, Staffordshire County Council (“the County Council”), brought two sets of civil proceedings which were eventually consolidated – one for an injunction to prevent the breach of planning control and then subsequently, after the County Council had taken direct action itself under section 178 of the 1990 Act to remedy the breach, another set of proceedings to recover from the owners of the land the expenses which they had incurred. These proceedings came before Her Honour Judge Kirkham, sitting as a High Court judge: she, by a judgment dated 23 February 2007, found against the County Council, which now appeals. Judge Kirkham’s decision was largely founded upon the existence of an earlier CLU.

At the same time a criminal appeal has been heard by this same constitution sitting as the Court of Appeal Criminal Division. This results from the prosecution on indictment of Basil John Challinor, the first defendant in the civil proceedings, on two counts of failing to comply with the enforcement notice contrary to section 179(5) of the 1990 Act. Mr Challinor eventually pleaded guilty to both counts but only after a ruling by Mr Recorder Evans, QC, that it was no defence that the use covered by the enforcement notice had been previously declared lawful by the CLU dated 15 June 1994. The judge relied in particular on the restriction contained in section 285(1) of the 1990 Act. Mr Challinor has appealed against his conviction and we deal with that appeal in a separate but brief judgment.

I would only add that it seems to me to have been eminently sensible for these two appeals, civil and criminal, to have been listed and heard together in this way. It is a procedure which has saved time and also avoided the (no doubt remote) possibility of conflicting decisions emerging from the two divisions of the Court of Appeal. I hope that a similar approach will be adopted whenever such a situation arises in future.

The enforcement notice in question, dated 16 June 1997, concerns an area of land about 2 hectares (5 acres) in extent located in a rural area at Hopton in Staffordshire. The land is known as Woodside. Within it is a smaller area, perhaps about a half-hectare in extent, the subject-matter of the CLU of 15 June 1994. I shall call this “the smaller area”. The whole site was owned for many years by Mr Challinor’s father, but he died in August 1997 and Mr Challinor and his sister, Mrs Robinson (the second defendant in the civil proceedings), are the executors of the estate. They are sued as such, insofar as the County Council seeks to recover the costs of its direct action to remedy the breach of planning control. No grant of probate has yet been made.

At one stage it seems that the land known as Woodside was all in agricultural use and its regrading to certain specified levels using appropriate fill materials was regarded in 1985 as permitted development because it was requisite for the use of the land for agriculture. However, in 1988 the County Council served an enforcement notice, alleging a breach of planning control because of operations consisting of the excavation of land and the deposit of material on land exceeding in area, volume and steepness of final profile the scheme sanctioned in 1985. Amongst the steps required to be taken by that notice was to

According to the evidence of the first defendant put before Judge Kirkham, he had been using some of the land for business purposes for some time and on 13 May 1993 he applied to the Staffordshire Borough Council for a CLU under section 191 of the 1990 Act. On the 15 June 1994 that authority issued a CLU. By it the Borough Council certified

It will be observed that this CLU was granted by the Stafford Borough Council, not the County Council who had issued the 1988 enforcement notice and who were to issue the 1997 enforcement notice which is at the heart of this case. There is a reason for this. Normally matters of planning control, whether concerned with the grant of planning permission or with the issuing of enforcement notices, were in non-metropolitan counties like this dealt with by the district council for the area, which would include a borough council. But certain matters were designated as “county matters”, for which the relevant county council would be the appropriate local planning authority. Amongst such “county matters” was the “use of land or the carrying out of operations in or on land for the deposit of refuse or waste materials”: see the Town and Country Planning (Prescription of County Matters) Regulations 1980, regulation 2(a). The 1988 enforcement notice, as its requirements indicated, was concerned with the deposit of waste and, as we shall see, so was the 1997 enforcement notice. Consequently the County Council was the appropriate local planning authority to issue these notices. The CLU of 15 June 1994 on the face of it did not relate to waste, or at least did not include any express reference to “waste” or indeed to “refuse” in the description of the lawful uses in the First Schedule. This, no doubt, was why it was thought appropriate for the Stafford Borough Council to issue it. In fact the Borough Council subsequently wrote to the first defendant on 23 November 1995, pointing out that “waste disposal which includes recycling is a planning function of the County Council and not this Borough Council” and saying that the Borough Council had no power to grant a CLU for a waste process.

In July 1996 the County Council refused to grant a CLU relating to use of a substantial part of the Woodside site for the importation, storage, sorting, treating, processing, reclamation and recycling of soils, bricks, concrete and other demolition and construction materials, together with distribution and general treating of such materials. Nonetheless, it seems that waste materials were at around this time or soon afterwards being imported onto the Woodside site and being handled, stored, sorted, screened and treated there. Certainly that was an agreed fact by the time of the public inquiry held in December 1998 into the first defendant’s appeal against the 1997 enforcement notice. I turn to deal with that enforcement notice.

Issued by the County Council on 16 June 1997, the notice in its original form alleged that there had been a breach of planning control on the Woodside site by a change of use to use as “a waste transfer station from agriculture.” It required various steps to be taken, the first of which was to

The first defendant appealed against the notice to the Secretary of State, who appointed an inspector to determine the appeal. The grounds of appeal changed in various ways before the inquiry into the appeal took place. To understand what happened, it is necessary to set out the potential grounds of appeal available under section 174(2), apart from ground (a) – that ground asserts that planning permission ought to be granted for the development enforced against, as a matter of the planning merits, and at no time did the first defendant rely upon that ground. Some of the other grounds in section 174(2) relate to the matters said by the notice to constitute a breach of planning control. Grounds (b) to (g) are as follows:

Initially, the appeal was brought solely on ground (d), but subsequently grounds (b), (c), (f) and (g) were added. However, all except ground (b) were withdrawn about one week before the inquiry took place on 8 December 1998. The inspector records that the appeal proceeded on ground (b) only, i.e. that the matters said to have occurred had not occurred. The appellant, Mr Challinor, was represented by leading counsel and the main argument advanced was that there had been no change of use to a waste transfer station. It was contended on his behalf that, while the land was being used for the treatment of waste materials, this did not amount to use as a waste transfer station. It is unnecessary to spell out the argument in detail for present purposes. Suffice it to say that, while the inspector was not convinced that the term “waste transfer station” was a misnomer, he thought it better for the avoidance of any future doubt to correct the wording of the notice so as to reflect more fully the precise nature of the activities taking place.

As to what those activities were, he was satisfied that the land had been used for the importation, handling, sorting, screening, storage, treatment and disposal of waste materials. He took the view that the notice could be corrected without causing any injustice and so he amended the wording by deleting the phrase “a waste transfer station from agricultural” and substituting new wording so that it then defined the breach of planning control as a change of use to use

It will be clear from this summary of the appeal to the Secretary of State that Mr Challinor did not, in the end, seek to challenge the enforcement notice on the basis that part of the land enjoyed existing use rights or that such rights had been reflected in the 1994 CLU referred to in paragraph 9 of this judgment. No doubt there was some tactical or other reason for this. The inspector was, however, aware of the existence of the CLU as a matter of the site’s planning history, for he referred in paragraph 25 of the decision letter to the CLU and in particular to that part of it, paragraph 1 of the First Schedule, which dealt with use as a plant hire contractor’s yard. He commented on the absence of any evidence to suggest that such a use was still on-going at the time when the enforcement notice was issued. I shall return to the significance of that later in this judgment.

Moreover, immediately after the paragraph in which he determined the appeal, he went on under the heading of “Other Matters” to say this in paragraph 30:

Pausing there, certain points can be made at this stage. First, although the inspector amended the enforcement notice in the way I have described, no fresh enforcement notice in the amended terms was issued, nor is that normal procedure. Any person who in the future wished to know the terms in which this enforcement notice was eventually couched would have to have had recourse to the register kept by the district planning authority under section 188, though we were told in the course of argument that the decision-letter itself would normally be available. Secondly, there can be no doubt that the inspector placed a certain interpretation on the 1994 CLU and decided that the wording of this enforcement notice required no variation in the light of the CLU. Thirdly, no part of his decision, including that part to which I have just referred, was subsequently challenged in the High Court under section 289 of the 1990 Act. Fourthly, and of relevance to the injunction proceedings, the amended enforcement notice took effect on receipt of the decision-letter, 20 April 1999.

It seems that in 2001 criminal proceedings were begun against Mr Challinor for breach of the 1997 enforcement notice but these were in the event not pursued. However, on 25 April 2002 The County Council issued civil proceedings against him, seeking an injunction to restrain him from committing further breaches. An interim injunction was granted on 23 July 2002 by His Honour Judge Mitchell, restraining Mr Challinor from using the land at Woodside for importing waste, handling, sorting, screening, storage, treatment and disposal, or any of these, of waste materials and soils until trial or further order. But the County Council also took the view that he had failed to carry out the requirements of the 1997 enforcement notice insofar as that required the removal of waste materials from the land, and so in April 2003 they took direct action under section 178 of the 1990 Act to carry out such removal. This gave rise to the further civil claim by the County Council, brought in July 2004, to recover the expenses of their direct action, put at £243,685.12 plus interest. It was this claim which, having been consolidated with the injunction proceedings, eventually came before Judge Kirkham for decision.

In the meantime, two other things had happened. First, the County Council had sought an extension of the interim injunction so as to cover an additional area of land. That was refused by Mitting J on 24 March 2004. He continued the existing interim injunction, but varied it so as to add a proviso, the purpose of which was to exclude from the scope of the injunction activities on the CLU site which he regarded as falling within the second paragraph of the CLU’s First Schedule. Secondly, fresh criminal proceedings against Mr Challinor were started on 8 April 2004 in respect of the deposit of waste on the enforcement notice land, Woodside, on 12 February 2003 and 7 April 2003. These are the proceedings which have ultimately given rise to the criminal appeal.

Mitting J in his judgment took the view that the CLU related to the storage, distribution and general trading of certain materials and activities incidental thereto. The screening, treating and any sorting of materials was, he said, excluded. But in considering what type of materials could be stored, distributed and traded in, he differed from the inspector who had upheld the enforcement notice, in that the inspector saw the CLU as applying only to material already recovered from waste before delivery to the site, whereas Mitting J was of the view that the CLU covered materials obtained from demolition or construction sites, whether or not they had been sorted before reaching this site. As a result, he excluded the storage, distribution and general trading of such materials from the scope of the interim injunction which he was continuing until trial or further order.

He was not, of course, amending or purporting to amend the 1997 enforcement notice in the terms in which it had been approved by the inspector. He had no jurisdiction to do so. The implication of his decision was that there was a conflict between the 1997 enforcement notice as approved and the 1994 CLU. That conflict, however, was not addressed by Mitting J, and indeed he was not asked to consider the effect of section 285 of the 1990 Act and its prohibition on subsequent challenges to an enforcement notice on any such conflict. It is noticeable that there is no reference to that section in his judgment. One can only assume that it was not drawn to his attention.

To complete the sequence of events: the criminal proceedings against Mr Challinor gave rise to the hearing of certain preliminary issues in the Crown Court before Mr Recorder Evans QC on 21 June 2005. One of those issues concerned a defence which Mr Challinor wished to run, based on the CLU. The prosecution relied on section 285(1) of the 1990 Act, arguing that if he had wished to rely on the CLU, he should have raised it by way of appeal against the enforcement notice and that he was now precluded from doing so by the terms of that sub-section. The judge accepted that contention. As a result, Mr Challinor subsequently in October 2006 pleaded guilty to both charges against him.

The trial of the consolidated civil claims took place in November and December 2006, with Judge Kirkham handing down her detailed reserved judgment on 23 February 2007. In that judgment, she considered the meaning of “waste” in the European Directive 75/442/EC, referring to several decisions on that topic, and she then went on to deal with the meaning and effect of the 1994 CLU. She held that the prohibition in section 285(1) on challenging an enforcement notice which is in force did not suffice “to override the conclusive nature of the CLU”, referring to section 191(6) of the 1990 Act (see paragraph 35 below). She then said this at paragraph 81:

Having reached such a conclusion, it was understandable that she then turned to the scope of the CLU. On this she adopted the interpretation put forward by Mr Justice Mitting, concluding that Mr Challinor was entitled to bring onto the CLU area any materials obtained from demolition and construction sites. Of course, these conclusions did not mean that the entirety of the direct action taken by the County Council in April 2003 was necessarily ultra vires nor that Mr Challinor was not in breach in some respects of the enforcement notice, and Judge Kirkham accepted that up to the time of the direct action there had been a breach in respect of 18 instances. But because the County Council could not distinguish between the costs it had incurred in respect of its direct action found by her to be related to breaches of the enforcement notice and those costs incurred in doing work which fell outside the enforcement notice because of the CLU, the judge concluded that the County Council could not recover any of the costs of its direct action.

Nonetheless, she very properly went on to assess the costs which it would have been entitled to recover under section 178, had it been entitled to act as it did. After a careful and detailed analysis, she concluded that the expenses reasonably incurred would have been a total of £179,035.94.

Judge Kirkham also considered a number of arguments advanced by Mrs Robinson, the second defendant, about the validity of the enforcement notice, its service, the warrant of entry obtained by the County Council and issues under the European Convention on Human Rights. The judge ruled against Mrs Robinson on each of these matters.

So far as the County Council’s claim for a permanent injunction was concerned, the judge was influenced by the fact that she had found only two breaches of the enforcement notice after the date of the direct action, largely because other alleged breaches fell within the scope of the CLU. Because, on this basis, the County Council had demonstrated “only very limited breaches” of the enforcement notice since the direct action, she concluded that there had not been “flagrant and prolonged defiance” by Mr Challinor of planning control, and she therefore refused to grant the injunction sought.

The 1997 enforcement notice was directed against a breach of planning control consisting of the carrying out of development without planning permission. “Development” includes, by virtue of section 55(1) of the 1990 Act, “the making of any material change in the use of any buildings or other land”, and by section 55(3)(b) the deposit of waste materials on land involves a material change in its use, even if the land is comprised in a site already used for that purpose, if the superficial area of the deposit is extended or the height of the deposit is extended and exceeds the level of the land adjoining the site.

Section 171A(1) provides that carrying out development without planning permission is a breach of planning control. Planning permission may consist of an express grant of permission following an application made for that purpose under section 62, but it may also have been granted (by virtue of section 58(1)(a)) by a development order applicable generally throughout England and Wales, the current version being the Town and Country Planning (General Permitted Development) Order 1995, which means that permission automatically exists for such things as minor extensions of dwelling-houses, or hard surfaces within the curtilage of such houses for a purpose incidental to the enjoyment of the dwelling-house. Section 172(1) empowers a local planning authority to issue an enforcement notice where it appears to them that there has been a breach of planning control and that it is expedient to do so, having regard to the development plan and other material considerations. There are, however, time limits on taking enforcement action, as I indicated in paragraph 2 of this judgment: thus in almost all cases where the breach consists of making a material change of use of land without permission,

Any enforcement notice shall specify the steps which the authority requires to be taken or the activities which it requires to cease (section 173(3)). A right of appeal to the Secretary of State is provided by section 174. The grounds upon which such an appeal may be brought are contained in section 174(2), the relevant parts of which I have set out in paragraph 13 of this judgment. The time-limits on bringing enforcement action are reflected in section 174(2)(d), which enables an appellant to appeal on the ground that the time for taking such action has passed. In such a situation he is often said to enjoy existing use rights. It is to be noted that the material change of use or other form of development must not merely have taken place the requisite number of years before the enforcement notice is issued: it must also have continued during the intervening period: see Secretary of State for the Environment v. Thurrock Borough Council (No. 2) [2002] EWCA Civ. 226; [2002] JPL 1278; Fairstate Ltd v. First Secretary of State [2005] EWCA Civ. 238; Swale Borough Council v. First Secretary of State [2005] EWCA Civ. 1568. This is of significance when one comes to consider CLUs.

Section 176(1) is the provision which empowers the Secretary of State (or more usually these days one of his inspectors) on an appeal to correct any “defect, error or misdescription” in the enforcement notice or to vary its terms, so long as he is satisfied that doing so will not cause injustice to the appellant or the planning authority. This is the sub-section used by the inspector in the present case to amend the 1997 enforcement notice. Whatever the outcome of the appeal to the Secretary of State, there is a right of appeal against the decision on a point of law to the High Court, with the leave of that court, under section 289.

The power of the planning authority to take direct action where an enforcement notice is not complied with is to be found in section 178(1). That states:

It is a criminal offence under section 179(2) for an owner of land to be in breach of an enforcement notice. He is in breach if, after the end of the period for compliance, any step required by it to be taken has not been taken or any activity required by it to cease is being carried on: section 179(1). Likewise a person who has control of or an interest in the land must not carry on an activity which is required by the notice to cease, and he commits an offence if he does: section 179(4) and (5).

CLUs are provided for by section 191 of the 1990 Act. Insofar as material to the present case, that section provides as follows:

Finally, there is the prohibition on challenging an enforcement notice in any proceedings on any ground on which an appeal might be made to the Secretary of State. This is to be found in section 285(1) of the 1990 Act, which provides:

The reference to the “validity” in section 285(1) might perhaps be thought to mean simply the formal validity of the notice. That, however, would not make sense, given the scope of the grounds on which an appeal can be brought to the Secretary of State, which include, in effect, the planning merits of the development enforced against and any existing use rights which are relevant. Thus it was that the House of Lords in Davy v. Spelthorne Borough Council [1984] 1 AC 262 noted that the word “validity” (in the predecessor section to section 285) really meant enforceability, Lord Fraser of Tullybelton saying at page 272 B-D;

The main issues in this appeal concern the relationship between the 1994 CLU and the 1997 enforcement notice, particularly in view of Judge Kirkham’s decision that section 285(1) did not override “the conclusive nature of the CLU” and that activities within the scope of the CLU were not in breach of the enforcement notice. On behalf of the County Council, Mr Dove QC contends that in so deciding the judge erred in law. It is submitted that it is well-established that, if existing use rights are not relied on as a ground of appeal to the Secretary of State under section 174(2) against an enforcement notice, they cannot subsequently be invoked on a prosecution for breach of the notice. The Divisional Court decision in Vale of the White Horse District Council v. Parker [1997] JPL 660 makes that clear, and other authorities make the same point in relation to proceedings for an injunction sought in support of an enforcement notice.

The fact that such existing use rights were reflected in a CLU in the past cannot, it is said, affect the position. Such a certificate is simply declaratory in effect. Mr Dove argues that, when section 191(6) refers to the lawfulness of the use dealt with by the certificate being “conclusively” presumed, the terminology seen by the judge as of great significance, it merely means that the certificate is conclusive as to what it states, namely that the use in question was lawful at the date of the application for it. It does not establish that the use, and hence its lawfulness, had continued up to the date of the enforcement notice subsequently issued. That is why a use specified in a CLU can be abandoned: see M and M (Land) Limited v. Secretary of State for Communities and Local Government [2007] EWHC 489 (Admin). If it is not then relied on as a ground of appeal against the enforcement notice, the latter supersedes it. This creates no unfairness, submits Mr Dove, because there was an opportunity to raise it on appeal. If that opportunity is not taken, there is no hardship or injustice in preventing the point being taken later.

In any event, in the present case the inspector who upheld the enforcement notice was aware of the CLU, even though it was not relied on as a ground of appeal, and took it into account in his decision. As a result of the interpretation he attached to the CLU, the inspector decided not to vary the terms of the enforcement notice to take account of it, because he concluded that that was unnecessary. That decision by him as to the meaning and effect of the CLU and his decision not to vary the enforcement notice in that regard were not challenged in the courts under section 289, as they could have been if he was thought to have erred in that part of his decision-letter. It is therefore submitted on behalf of the County Council that the argument accepted by the court below in these proceedings amounts to a belated and impermissible challenge to the inspector’s decision.

Mr Dove also has a subsidiary argument, if it becomes necessary, based on the 1988 enforcement notice. He emphasises that that earlier notice prohibited the importation of waste material onto most of the Woodside site, including most of the smaller area covered by the 1994 CLU. But section 191(2) expressly provides that a use is only lawful if it does not contravene a requirement of an enforcement notice in force at the time of the application for a CLU, and the 1988 enforcement notice remained in force in 1994. It is not argued on behalf of the County Council that this rendered the CLU invalid: rather, it is submitted that as a matter of construction the CLU cannot have meant that the importation of waste was lawful, and that this supports the interpretation put on it by the inspector in 1999.

On behalf of Mr Challinor, Mr Anthony Smith QC submits that section 285(1) does not apply when one has a CLU in existence. He recognises that existing use rights cannot be relied on once an enforcement notice has come into force, but it is contended that such a certificate makes all the difference. It overcomes the problem which would arise if existing use rights could be relied on as a defence to a prosecution for breach of an enforcement notice: that could well involve magistrates having to decide the difficult question of whether such use rights had been proved. But a CLU does that for them.

In addition, reliance is placed on behalf of Mr Challinor on a line of authority beginning with Mansi v. Elstree Rural District Council [1965] 16 P and CR 153 and continuing with R v. Harfield [1993] 2 PLR 23 and Duguid v. Secretary of State for the Environment [2001] 82 P & CR 52 for the proposition that an enforcement notice cannot take away legally permitted rights. Consequently, Mr Smith argues that an enforcement notice cannot bite on a use which is lawful and that the courts should remove from the scope of an enforcement notice a use which is lawful. He accepts that if there was a total conflict between such a lawful use and an enforcement notice, such a limitation on the scope of the latter would amount to impugning the validity of the enforcement notice and be contrary to section 285(1). But it is contended that if there is only a partial conflict, there is no conflict with that sub-section because one would not be impugning the validity of the notice. It would not render the notice void.

So far as the 1988 enforcement notice is concerned, it is submitted that section 191(6) prevents the courts from looking behind the CLU because the latter is made conclusive. If the vires of the issuing of the CLU is not challenged at the time, it cannot subsequently be said that it was unlawful to issue it. Moreover, says Mr Smith, the 1988 enforcement notice must be read as a whole and its prohibition on the importation of waste was clearly aimed at preventing the deposit of waste materials on the land, not their temporary storage.

On these issues, similar arguments are advanced on behalf of Mrs Robinson by Ms Dilmitis, whom we allowed to address us as a form of Mackenzie friend. It is emphasised that the lawfulness of the use on the smaller area of the CLU had already been established by the existence of that certificate, which created a very different situation from one where someone is later seeking to raise the issue of existing use rights. In addition, reliance is placed on certain other arguments. It is said that the County Council’s direct action involved a breach of Mrs Robinson’s rights under Articles 6 and 8 of the European Convention on Human Rights and Article 1 of the First Protocol thereto. Moreover, it is argued that the County Council did not keep a proper record of the items taken from the site during their direct action and that Judge Kirkham failed to allow in her calculations for the full value of what was taken. Hence her figure of £179,035.94 is excessive.

Arguments were advanced on both sides about the justification or otherwise for the grant of an injunction to support the enforcement notice. I shall take those later as a specific topic.

It is an over-simplification and a misinterpretation of the authorities to contend that an enforcement notice cannot take away lawful use rights. It patently can have that effect in certain circumstances, and that is the undoubted result of section 285(1). Even in the absence of a CLU, a use which is within the existing use rights enjoyed by a piece of land is a lawful use: section 191(2) expressly provides that a use is lawful if it is immune from enforcement action because of the passage of time. Yet it has long been established that such lawful rights will be lost if an enforcement notice is served and the rights are not then raised as a ground of appeal. That is the result of section 285(1) and is recognised in cases such as R v. Smith (Thomas George) [1985] JPL 182 and the Vale of the White Horse District Council case (ante). In the latter, the Divisional Court found that the magistrates had been wrong in law in permitting a defendant to a prosecution to lead evidence to show that the land had been used for the purpose enforced against for a period in excess of 10 years prior to the issue of the enforcement notice. Section 285(1) prohibited any such course being adopted: see Otton LJ at page 667, applying the Smith case.

Another vivid illustration of the point is to be found in this court’s decision in North West Estates plc v. Buckinghamshire County Council [2003] EWCA Civ 719, where it was held that it was not possible in defending injunction proceedings to raise matters which could have been raised in an appeal against the enforcement notice, such as lawful use rights. It was, said Ward LJ at paragraph 35, too late to raise such arguments.

Where the courts have said that an enforcement notice cannot take away lawful use rights, it has been said in a very specific context. One obvious such situation is where the statutory rights of challenge to the issue of the enforcement notice are still being pursued, so that the notice has not taken effect: section 285(1) allows such a challenge at that stage. Consequently, lawful use rights may be raised at that stage, with or without a CLU to demonstrate them, as a ground under section 174(2), and if demonstrated will prevail. The enforcement notice will be quashed or, as happened in Mansi, will be amended. The amendment in Mansi to the enforcement notice was to allow for the continuation of retail sales on a limited scale because there were use rights to that effect.

In Harfield, it was indeed said that

Finally, there is the case of Duguid, where this court held that it was unnecessary to amend an enforcement notice so as to safeguard those use rights which arose as a result of the permission granted generally by the General Permitted Development Order 1995 (see paragraph 30, ante) for a temporary use of land for not more than a certain number of days in the year. It was in that context, and indeed in the course of a statutory challenge under section 289 to an inspector’s decision on an appeal against an enforcement notice, that Ward LJ said that such a notice could not take away legally permitted rights (see page 62). As he went on to say at page 63:

In short, what this line of cases indicates is that an enforcement notice will be interpreted so as not to interfere with permitted development rights under the General Development Permitted Order or with rights to use land for a purpose ancillary to a principal use which is itself not being enforced against. The authorities go no further than that and certainly do not establish any general right to assert existing use rights at a time when the enforcement notice has come into effect after an unsuccessful appeal or in the absence of an appeal. Such rights must be asserted at the time of appeal against the enforcement notice. If the landowner sleeps on those rights, he will lose them. There is a sound practical reason for this, in that any other course would require the courts, including magistrates courts, to delve into the planning history of a site and into the use made of it over a number of years.

Is the position any different when existing use rights have been certified in a CLU? The first thing to note is that neither section 174(2), allowing for an appeal to the Secretary of State, nor section 285(1) with its prohibition on subsequent challenge, draws any distinction between lawful use rights covered by a CLU and those which are not. Moreover, the use in question is “lawful” at a particular time, whether a CLU exists or not: see section 191(2). On the face of it, one would not expect the existence of a CLU to make any difference to the effect of section 285(1).

Such a certificate may have the practical effect of reducing the amount of investigation into the past use of the land required of a court in subsequent proceedings, as Mr Smith argues. But it would not necessarily avoid such a requirement. A CLU only certifies that the use in question was lawful on the specified land at a particular point in time, namely the date of the application for the CLU: see section 191(4) and (5)(d). The conclusiveness of the presumption in section 191(6) relates only to the lawfulness of the use at that date. It will not always be an answer to a subsequent enforcement notice, even if it is raised on appeal, because the use may not have continued until the date of the issue of the notice: see the cases referred to in paragraph 31 of this judgment. That appears to have been the view of the inspector in the present case in respect of the use of the land as a plant hire contractor’s yard, even though that had been the first of the two uses covered by the CLU.

Indeed, it has been held in the M and M (Land) Ltd case that a use certified by a CLU can be abandoned, despite section 191(6). It was held there that

That decision in the High Court seems to me to be right and to accord with the other authorities to which I have just referred. It indicates both that the existence of a CLU does not necessarily overcome the problems facing a court if a subsequent challenge to an enforcement notice could be mounted and also that a CLU is only “conclusive” in a limited sense. The purpose of section 285(1), namely to resolve issues such as existing use rights as part of the process of appeal to the Secretary of State, could still be undermined if a CLU could be relied on at a later stage. There could be a considerable interval of time since the issuing of the CLU, during which time a site may have undergone a complex sequence of uses.

For my part, therefore, I conclude that the judge erred in regarding the activities covered by the 1994 CLU as exempt from the 1997 enforcement notice insofar as they took place on the smaller area of the CLU. The enforcement notice would prevail if there were any conflict between the two.

That takes me to Mr Dove’s further argument which also seems to me to have merit, namely that the inspector in upholding the enforcement notice had to construe the CLU and that his construction of it was not challenged, as it could have been, in the courts. It was a construction which avoided any conflict between the CLU and the enforcement notice and it was relevant therefore to how the enforcement notice was ultimately worded as a result of the appeal. Whether the inspector’s construction of the meaning of the CLU was right as a matter of law is not now an appropriate question. He expressly declined to vary the notice because he saw no conflict, and that decision is not now open to challenge in the courts, because the only statutory avenue of challenge was not followed. It is therefore unnecessary to decide now whether Mitting J’s interpretation of the CLU is to be preferred if one were dealing with that issue in isolation from the enforcement notice. One is not, and that disposes of the point.

It follows that it is not strictly speaking necessary to decide whether the County Council’s argument about the effect of the 1988 enforcement notice on the CLU is correct or not. I would only say two things. First, in my view Mr Smith is right to assert that once the CLU has been issued and the time for challenge, presumably by way of judicial review (see R v. Sheffield City Council, ex parte Russell [1994] 68 P and C R 331) had passed, one cannot seek to question the vires of its issue on the ground that it breached section 191(2)(b). Indeed, Mr Dove does not argue strongly to the contrary. Secondly, though the 1988 enforcement notice did require the importation of waste to an area which included most of the CLU land to cease, Mr Smith seems to me to be correct in arguing that this meant importation for the purpose of deposit in a permanent sense. That was the context of that requirement. So the judge below was right on this aspect of the case. However, for the reasons I have already indicated, it does not assist the defendants.

As I have said, Mrs Robinson argues that the direct action by the County Council in April 2003 to remove waste materials from the Woodside land was in breach of her rights under the European Convention on Human Rights. On this part of the case, I agree with Judge Kirkham’s conclusion that no such breach was involved. Article 6(1) was not engaged. Whether or not the County Council should have given a warning before acting under section 178, which is what is now complained about, the action by the County Council did not involve a determination of the civil rights and obligations of either defendant. Moreover, recourse to the courts to challenge the legality of the action was available. As for Article 8, the right to respect for private and family life was not breached by the County Council’s action. The right to peaceful enjoyment of property, provided for by Article 1 of the First Protocol, is of more obvious relevance. However, the action taken by the County Council was undoubtedly lawful under our domestic law and, given the duration of the breach of the enforcement notice, cannot be said to have been disproportionate. The enforcement notice had taken effect on or about 20 April 1999 and had been largely ignored by those in control of this land during the four years between then and the date of the direct action by the County Council. It is said on behalf of Mrs Robinson that that action was disproportionate because the County Council was aware of the CLU. No doubt it was, but it was also well aware of the 1997 enforcement notice and the inspector’s decision on the limited effect of the CLU.

A point is taken on Mrs Robinson’s behalf about the signing of the enforcement notice and of the warrant of entry. Those matters were dealt with by Judge Kirkham at paragraphs 74 and 89 of her judgment. She rejected Mrs Robinson’s arguments on the basis of the evidence put before her. I see no reason for disturbing the judge’s findings on this aspect of the case.

I was for a time troubled by the contention that the judge had not properly allowed in her calculations of the County Council’s expenses for the resale value of the materials removed from the site. She allowed for the resale of plant and equipment, but it is said that she failed to do so in respect of soil and other materials which were removed. Having looked with care at the judgment, I am not persuaded that the judge erred in this respect. Her analysis of the sums due to the County Council, if they were entitled to anything, is lengthy and meticulous and produces a sum about £71,000 less than had been claimed. It is right that the defendants alleged that the material removed had certain values, but it must be implicit in the judgment that the judge could find no adequate evidential basis for those values. I conclude that the eventual figure at which she arrived was the best assessment she could achieve in the light of the evidence put before her by both sides. Consequently I would accept her figure of £179,035.94 as the County Council’s proper expenses under section 178.

It is, however, accepted by the County Council that, as the defendants are sued for these expenses in their capacity as executors, their liability should be limited to the extent of the value of the estate. That would seem to be right, and any order of this court should reflect such a limitation. Whether or not it would have any practical effect on the County Council’s recovery of the sum referred to in the previous paragraph has not been disclosed to the court.

Since the hearing of this appeal concluded, Mrs Robinson has written to complain that she was put at a disadvantage during that hearing because she did not have all the documents at the outset to which reference was then made. She also says that she was given lengthy additional documentation at the end of the first day’s hearing, and that she was prejudiced by the civil and criminal appeals being dealt with together when she was not involved in the criminal appeal.

I can well understand a litigant in person, even with a Mackenzie friend to assist, finding some of the legal arguments in this case difficult to follow. However, I for my part cannot accept the points now being made. Virtually no reference was made during the hearing to the documents involved in the criminal appeal, it being accepted by all parties and the court that the main issues in the civil appeal were to all intents and purposes the same as those in the criminal. At no stage was any application made for an adjournment because of any problems in digesting any new documents. The court allowed Ms Dilmitis to speak on Mrs Robinson’s behalf, which she did very ably, at some length and with apparent complete familiarity with the documents in the case. Sympathetic though one is to someone in Mrs Robinson’s position, I cannot accept that she was in any way prejudiced by the way in which the hearing proceeded.

A permanent injunction is sought only against the first defendant, Mr Challinor. The principles on which the grant or refusal of an injunction in support of an enforcement notice will be determined are not controversial. Section 187B makes it clear that an injunction may be granted to restrain an actual or apprehended breach of planning control, whether or not the local planning authority have exercised any of their other statutory powers, and in South Bucks District Council v. Porter [2003] 2 AC 558 it was held that the court in considering whether to grant an injunction should take into account all the circumstances of the case. It should, however, not examine afresh matters of planning policy and judgment. Personal considerations may well be relevant, but so will the need to enforce planning control in the general interest. The House of Lords endorsed a statement made by Simon Brown LJ in the Court of Appeal in those proceedings, where he had said

Judge Kirkham in the present case refused a permanent injunction largely because of her decision about the effect of the CLU. Since I regard that decision to have been in error, the refusal of the injunction requires reconsideration. It is open to this court to arrive at its own decision on the application for an injunction, and Mr Smith on behalf of Mr Challinor welcomes a decision by this court, rather than a remission to the court below.

The County Council emphasises the length of time during which there has been non-compliance with the enforcement notice, which came into effect in April 1999. The activity prohibited by the notice persisted for four years until the County Council took direct action in early April 2003. Mr Dove points out also that it has never been suggested that the prohibited use was in any way acceptable in planning terms or did not cause significant damage to amenity. Mr Challinor has never sought planning permission for the use of Woodside for this purpose, not even when he appealed against the 1997 enforcement notice and could have easily raised the planning merits of the use under ground (a) of section 174(2).

In response, Mr Smith and his junior Mr Darby make a number of points. It is argued that the breaches of the enforcement notice have been more limited in recent times, with the judge finding that there had only been two breaches outside the smaller area of the CLU after the taking of direct action by the County Council in early April 2003. It cannot therefore be said that there has been a flagrant disregard of the enforcement notice during the more recent period. It is also emphasised that after March 2004 Mr Challinor was entitled to rely on Mitting J’s judgment about the CLU.

I take that last point, but I do not find this general line of argument persuasive. There are a number of reasons for that. First, between the direct action in April 2003 and Mitting J’s judgment almost a year later, the legal position remained as it had been since the inspector’s decision in 1999, when the inspector had given his unchallenged ruling on the meaning and effect of the CLU and had refused to vary the enforcement notice. No court had ruled that that notice did not apply fully to the whole of the Woodside site. So one cannot confine one’s attention to the breaches on that part of it outside the CLU area. It seems from the judgment below, paragraph 105, that there were some 21 breaches of the notice on the site as a whole after the taking of direct action in early April 2003. Secondly, even on Judge Kirkham’s view of the legal effect of the CLU, there were still on her findings a number of breaches of the enforcement notice in April and June 2006: see paragraphs 155 and 157 of the judgment below. Thirdly, while the recent record of this defendant in respect of enforcement notice breaches is important, it must be remembered that there was an injunction already in force, albeit an interim one, after 23 July 2002, varied to some extent in March 2004 but still continued. The conduct of Mr Challinor while the subject of such an injunction can only provide very limited evidence as to his likely conduct, were an injunction not to be in place.

Finally, one must not lose sight of the extent and flagrancy of the breaches which occurred before the direct action in April 2003. That was a time when (a) there had been an interim injunction in force for over 8 months and (b) there was no court ruling suggesting that the CLU sanctioned the breaches. Yet the scale of the past activities on the Woodside site can be appreciated from the expenses of nearly £180,000 incurred by the County Council in removing waste from that site.

I conclude that there had been a flagrant non-compliance with the 1997 enforcement notice up until the interim injunction was imposed in July 2002 and that there has been a significant, if lesser, non-compliance since that date. A permanent injunction appears to be necessary if compliance by Mr Challinor with the enforcement notice is to be secured, and it is in the public interest that such compliance should be secured. None of the points raised nor any other circumstance seems to me to outweigh the need for, and the public interest in having, such an injunction. Its precise terms may need to be the subject of submissions, but provisionally I would favour wording along the following lines:

It follows that I would allow this appeal, would grant an injunction against the first defendant in the above terms, subject to any further argument on those terms and would order that judgment be entered against both defendants and each of them for £179,035.94, that amount to met from the estate of which they are the executors.

I agree that the plain purpose of the statutory scheme, and of section 285 in particular, is to prevent any challenge to the enforcement notice on grounds which can be raised before the Inspector under section 174, in any place other than before him, with appeal from him to the High Court and beyond on a point of law. If the Certificate of Lawful Use did provide an answer to the Enforcement Notice, that was a ground of challenge which could and should have been the subject of an appeal under section 174, invoking grounds (c) and/or (d). That is enough to conclude this appeal. In short, section 285 prevails over section 191(6). The latter establishes conclusively the lawfulness of the certificated use at the time of the CLU, but the issue must be raised in the manner prescribed by the statute, namely before the Inspector.

It is certainly possible to envisage rare cases in which this law may work some injustice. They will be confined to those in which both (a) there is a defect in the Enforcement Notice which can irrefutably be established, and (b) the landowner had an understandable reason for omitting to pursue a section 174 appeal. The coincidence of those factors will, I think, be rare. But it is not entirely unknown for administrative errors to lead to the issue of an Enforcement Notice when there is an existing planning permission, or Certificate of Lawful Use, and the chance of such error is no doubt increased if there are two different authorities concerned in the case. It is no doubt possible that a landowner might be absent abroad, ill, illiterate or simply may wrongly think that his CLU provides an answer and he need take no advice and do nothing. There is, we are told, no power even in an exceptional case to extend time for bringing a section 174 appeal. So in such a case, rare as it may be, the landowner could perhaps find himself with a cast iron defence to a prosecution under an Enforcement Notice, which he is prevented by section 285 from advancing.

I do not think that Mr Dove’s analogy with limitation is a sufficient justification for treating this possible scenario as simply irremediable. It is one thing to impose a limit upon the time in which a man may bring an action against someone else. It is another to deprive him of the power to advance a cast iron defence so that he ends up convicted of an offence of which he is legally guilty but of which he ought not to be convicted.

It needs clearly to be said that the theoretical scenario which I am presently envisaging is not the present case. The CLU in this case did not provide a cast iron defence. On the contrary, its meaning and extent was very much in question. But quite apart from that, Mr Challinor did not reasonably omit to make a section 174 appeal against the Enforcement Notice. He lodged such an appeal. He then added ground (d) but not ground (c). And then he abandoned ground (c), and indeed all grounds other than (b) and ran the appeal solely on the meaning of ‘waste transfer station’. He was represented by extremely experienced leading counsel with special skill in planning, and by a planning consultant. His decision not to run the CLU as a challenge to the Enforcement Notice was plainly deliberate. Likewise, his decision not to appeal to the High Court on the grounds that the Inspector’s limited adjustment of the Enforcement Notice involved a wrong construction of the CLU, must also have been a considered one. There is in this case no question of Mr Challinor having any excuse for not raising the CLU point in the statutory appeal. Mr Dove is right to say that his consequent inability to raise it in the civil and criminal cases which followed is a self-inflicted wound.

It follows that we are not concerned with a case such as I have envisaged in paragraph 2. If such a case were to arise, then the courts do, as it seems to me, have limited capacity to address it. Firstly, so long as the court retains the rarely exercised but important power to stay a prosecution on the grounds that it is an abuse of the process of the court, under the second limb of the law as explained by the House of Lords in R v Horseferry Road Magistrates Court ex p Bennett [1994] 1 AC 42, the criminal court has available the means of preventing the gross injustice of a conviction. Secondly, the civil court plainly retains a discretion whether or not to grant an injunction if one is sought, and it might be very relevant if the scenario were that envisaged. Whether, if direct action had also followed without the error being appreciated, there would exist any defence to a claim for expenses incurred, for example on the basis that they were not reasonably incurred (s 178(1)(b)) is a question which can safely be left for the day it happens, improbable as it plainly is.

Since the case is concluded by section 285, we do not get to the issue of what is the correct construction of the CLU. For myself, if the issue were one which had to be resolved, I would see some force in the reasoning of Mitting J and Judge Kirkham. A CLU can of course be refused, but if granted it will often be granted in the terms in which the application is framed. I am by no means convinced that in 1994 Mr Challinor’s father, who framed this application, had in mind the highly technical law of waste and the specialised meaning which ‘recovered’ bears within it. Of course, it is more possible that a planning officer who granted the CLU addressed such technical meaning, but I am unpersuaded that he did; if he had, he would surely have told Mr Challinor what he meant. I acknowledge also that the meaning of the CLU, and any other public planning document, is a matter for objective construction rather than for resolution simply according to what those concerned with its production thought they were saying. Thus the question is not a simple one. But all that is irrelevant, and for two reasons. First, section 285 means that the CLU cannot be raised, whatever it means, in either the civil action or the criminal prosecution. Second, the Inspector’s decision on the ambit of the Enforcement Notice, and any re-wording to allow for the uses permitted by the CLU, was never appealed, as it could have been if Mr Challinor wanted to say it was wrong. This is precisely the kind of question which is, by section 285, for the planning appeal structure, informed by the planning history and the often rather arcane expertise of that discipline, and not for a later criminal or civil court. It is too late to advance Mitting J’s alternative construction now.

If the construction of the CLU had been in issue, I would not have been persuaded that the 1988 Notice was in this case of any significant help. Of course, section 191(2)(b) means that a CLU ought not to be granted if the uses certified would conflict with the requirements of an existing EN. But if nevertheless such a certificate is granted, section 191(6) makes its terms conclusive as to what is lawful. No doubt a CLU subsequent to an EN will be construed, so far as it properly can be, as consistent with the earlier EN. But in this case, I simply do not think that the 1988 EN and the 1994 CLU really addressed comparable issues.

I respectfully agree that this appeal must be allowed for all the reasons given by Keene LJ. Subject to any additional submissions, I also agree with his proposed formulation of the injunction.

I agree with both judgments.