Davenport v The City of Westminster

This is an appeal by Mr Edward Davenport (“the appellant”) against a decision of Eady J dated 30 July 2010 whereby he granted to the Lord Mayor and Citizens of the City of Westminster (“the respondents”) an injunction forbidding defined uses of property known as 33 Portland Place, London W1B 1QE (“the property”). The appellant, and persons unknown, are forbidden from using any part of the property for commercial or non-residential purposes and from undertaking any development in respect of the property without an express grant of planning permission. The appellant seeks to quash the injunction. Permission to appeal, limited to specified grounds, was granted by Jacob LJ following an oral hearing.

The property was built in the late eighteenth century. It includes about 110 rooms and has a floor space of about 22,000 square metres. It is situated in an area of mixed commercial and residential use. It is has been owned by Portland Place (Historic House) Limited since 1999 and is occupied by the appellant.

The respondents have claimed that the property has been used by the appellant for commercial purposes in breach of planning control. An enforcement notice was issued on 14 June 2006 under section 172 of the Town & Country Planning Act 1990 (“the 1990 Act”). No appeal against it was brought under section 174 of the 1990 Act. On 22 December 2009, the respondents sought an injunction pursuant to section 187B of the 1990 Act. An interim injunction was granted on 13 January 2010. When Jacob LJ granted permission to appeal, he stayed the enforcement of the injunction granted by Eady J. The respondents sought to lift the stay and it was lifted on 14 February 2011 in this court (Arden LJ and Richards LJ). An order was made expediting the hearing of the appeal.

The injunction was granted under section 187B in Part VII of the 1990 Act. That provides, in so far as is material:

“(1)

Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Part.

(2)

On an application under subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach.”

Other powers under Part VII include planning contravention notices, enforcement notices and stop notices.

The respondents’ case is that the property may be used only for residential purposes. Considerable evidence was called before Eady J as to the use made of the premises by the appellant and he considered it in detail in his judgment. Eady J concluded, at paragraph 92, that parts of the premises had been used for commercial purposes that cannot reasonably be characterised as ancillary to residential use. At paragraph 96, Eady J stated:

“In my judgment, however, the evidence it [the respondents] has provided suffices to demonstrate that the activities cannot be characterised as ancillary (or incidental) to residential use – still less ‘ordinarily’ incidental to residential use. They have nothing to do with the residential use and are quite distinct from it.” [emphasis in original]

Permission to appeal has not been granted to challenge that finding. Nor has it been granted to challenge the finding that the grant of an injunction was inappropriate because other methods of enforcement have not first been tried.

A planning permission granted on 6 July 1960 has loomed large in these proceedings. It provided:

“Development:

The use of No. 33 Portland Place, St. Marylebone, for diplomatic purposes by the Commissioner of the Governments of Sierra Leone and Gambia.

Conditions:

(1)

The third and fourth floors shall not be used for any purpose other than for residential purposes.

(2)

This permission shall be personal to the Commissioner of the Government of Sierra Leone and Gambia and shall not enure for the benefit of the Land and in the event of the Commissioner ceasing to use the premises for diplomatic purposes the premises shall not be used for any other purpose than for residential purposes or for such other purpose as shall have been previously approved by the Council.”

Reasons for imposing the conditions are stated in the document granting permission:

“(1)

In order to safeguard the existing residential accommodation in accordance with the policy of the Council’s Development Plan as expressed in section 16 of the Written Statement which provides that throughout the County, permission (temporary or permanent) will not, except in very special circumstances, be given for a change from residential use of any residential building which can still be used, with or without adaptation for residential purposes of any kind.

(2)

In order that the premises should not be used for any purpose which would be unacceptable to the Council having regard to the fact that the area in which the premises are situated is zoned for residential purposes.”

In substance, the 1960 permission for the property was limited not by time but by use for diplomatic purposes and by the Commissioner. It included a restriction as to the type of use and as to the person who may use. The use by the Commissioner ended in 1999 and ownership of the property passed to Portland Place (Historic Houses) Limited.

The enforcement notice dated 14 June 2006 provided:

“ISSUED BY WESTMINSTER CITY COUNCIL

1.

THIS FORMAL NOTICE is issued by the Council because it appears to them that there has been a breach of planning control, under Section 171A(1)(b) of the above Act, at the land described below. The Council considers that it is expedient to issue this notice, having regard to the provisions of the development plan and to other material planning considerations.

2.

THE LAND AFFECTED

The building and associated land at 33 Portland Place W1B 1QE shown edged with a thick black line on the attached plan.

3.

THE BREACH OF PLANNING CONTROL ALLEGED

On 14^th July 1960 planning permission was granted for the use of no. 33 Portland Place, St Marylebone for diplomatic purposes by the Commissioner of the Governments of Sierra Leone and Gambia subject to conditions.

One of those conditions was Condition 2 which states:

This permission shall be personal to the Commissioner of the Government of Sierra Leone and Gambia and shall not enure for the benefit of the land and in the event of the Commissioner ceasing to use the premises for diplomatic purposes the premises shall not be used for any other purpose than for residential purposes or such other purpose as shall have been previously approved by the Council.

It appears to the Council that this condition has not been complied with because the premises are being used for a range of commercial and other non-residential activities in breach of this condition.

4.

REASONS FOR ISSUING THIS NOTICE

It appears to the Council that the above breach of planning control has occurred within the last ten years.

The use of the premises for commercial and non-residential activities results in a loss of housing to other uses and impacts on neighbouring residential amenity to an unacceptable degree.

As such the uses are contrary to policies STRA 11, H1 and H10 of the City of Westminster Unitary Development Plan adopted 1997 and policies STRA 14, STRA 16, H1 and ENV13 of the Replacement Unitary Development Plan.

5.

WHAT YOU ARE REQUIRED TO DO

Stop using the property for commercial and other non-residential uses and use it only for residential purposes in accordance with condition 2 of the planning permission dated 14^th July 1960.

TIME FOR COMPLIANCE. One month after this notice takes effect.

6.

WHEN THIS NOTICE TAKES EFFECT

This notice takes effect on 25 July 2006 unless an appeal is made against it before 24 July 2006.”

In an annex, the respondents drew attention to the right to appeal against the notice before 24 July 2006 and the consequences of non-compliance. A correspondence address was given. Eady J rejected the submission that the enforcement notice was a nullity.

There has been some dispute about the precise scope of the permission to appeal but, in substance, the parties are agreed. The appellants may argue that the enforcement notice is a nullity and may also argue that the uncertainty created by the words “such other purpose as shall have been previously approved by the Council” in the notice create an uncertainty which renders the notice unenforceable. It may also be argued that the judge erred in considering that an actual or apprehended breach of planning control had been correctly identified in the notice for the purposes of section 187B of the 1990 Act. The appellant had accrued existing use rights pursuant to section 57(2) of the 1990 Act, it was submitted.

The respondents argue that the notice is not a nullity and, that being so, its validity cannot now be challenged. Section 285(1) of the 1990 Act provides:

“The validity of an enforcement notice shall not, except by way of an appeal under Part VII, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought.”

Section 174(1), which is in Part VII, provides a right of appeal to the Secretary of State against an enforcement notice. The grounds on which an appeal may be brought under section 174(2)(b) include a claim that, “in respect of any breach which may be constituted by the matters stated in the notice, planning permission ought to be granted” (section 174(2)(a)) and a claim that the matters stated in the notice (if they occurred) “do not constitute a breach of planning control” (section 174(2)(b)). The right of appeal under section 174 was not exercised and the enforcement notice cannot now be challenged, it was submitted.

The respondents further submit that, in the absence of a finding, or of evidence, of a commercial use prior to the 1960 grant, section 57(2) of the 1990 Act avails the appellant only to the extent of establishing a residential use, which is not in issue. Section 57(2) provides:

“Where planning permission to develop land has been granted for a limited period, planning permission is not required for the resumption, at the end of that period, of its use for the purpose for which it was normally used before the permission was granted.”

It cannot now be challenged that the use prior to the 1960 grant was residential use. The judge noted, at paragraph 84, the appellant’s acceptance that the primary use of the property had been residential, quoting, at paragraph 45, the statement in which that was accepted. The issue raised by the appellant, the judge stated, was whether what had taken place was ancillary to the residential use. The judge’s finding on that issue has already been stated. The respondents’ witness, Mr Piper, stated that the commercial use of the property was a breach of planning control whether or not the enforcement notice had been served and was valid. It is further submitted that, if existing rights were to be claimed, the only way to assert them was by way of appeal to the Secretary of State under section 174 of the 1990 Act. It is, however, conceded that, if the enforcement notice is a nullity, it may be challenged in the present proceedings.

For the appellant, Mr Lopez’s primary submission in relation to nullity is that the enforcement notice alleged a breach of planning control by reference to a planning permission which, with the conditions attached to it, no longer existed. It ceased to exist in 1999 when use of the premises for diplomatic purposes by the Commissioner ceased. Condition 2 of the permission, by reference to which the alleged breach of planning control is identified, had ceased to have effect when the notice was issued in 2006. Condition 2 was twice referred to in the notice and authority to apply for the injunction was granted on the basis of condition 2.

It is further submitted that the inclusion of the words “such other purpose as shall have been previously approved by the council” under the heading “The breach of planning control alleged” in the enforcement notice renders it a nullity because the reader does not know what other approvals may have been given and cannot therefore know whether he is in breach of planning control. The conditions no longer operate, it is submitted, upon the termination of the use specified in the permission. The condition cannot create a future limitation on use, arising on the termination of the personal permission, a use which would attach to the land and limit to use for residential purposes, it is submitted. Mr Lopez accepts that, had condition 2 been couched not as a condition but a part of the definition of the development permitted, he could not have complained, but, he submits, if an allegation of nullity is to be defeated, an enforcement notice must be clear on its face when read literally.

To support the submission that the conditions die with the permission, Mr Lopez seeks to rely on Adur District Council v Secretary of State for the Environment, Transport of the Regions [2000] 1PLR 1, a decision of this court. The case turned on the construction of a particular planning permission and I do not find it relevant to the present issue.

As to the ground of appeal based on rights under section 57(2), Mr Lopez submits that the right of appeal conferred by section 174 of the 1990 Act does not cover section 57(2) rights. These can be asserted at this stage, notwithstanding section 285 and the absence of an appeal under section 174(2).

In support of his claim of nullity, Mr Lopez relies on the obiter remarks of Upjohn LJ in Miller-Mead v Minister of Housing & Local Government [1963] QB 196, at 226, which have achieved general acceptance as a statement of the relevant law. Having cited section 23 of the then operative Town & Country Planning Act 1947, Upjohn LJ stated:

“Now, I think, is the time to draw the distinction between invalidity and nullity. For example, supposing development without permission is alleged and it is found that no permission is required or that, contrary to the allegation in the notice, it is established that in fact the conditions in the planning permission have been complied with, then the notice may be quashed under section 23(4)(a). The notice is invalid: it is not a nullity because on the face of it it appears to be good and it is only on proof of facts aliunde that the notice is shown to be bad: the notice is invalid and, therefore, it may be quashed. But supposing the notice on the face of it fails to specify some period required by subsection (2) or (3). On the face of it the notice does not comply with the section; it is a nullity and is so much waste paper. No power was given to the justices to quash in such circumstances, for it was quite unnecessary. The notice on its face is bad. Supposing then upon its true construction the notice was hopelessly ambiguous and uncertain, so that the owner or occupier could not tell in what respect it was alleged that he had developed the land without permission or in what respect it was alleged that he failed to comply with a condition or, again, that he could not tell with reasonable certainty what steps he had to take to remedy the alleged breaches. The notice would be bad on its face and a nullity, the justices had no jurisdiction to quash it, for it was unnecessary to give them that power, but this court could, upon application to it, declare that the notice was a nullity. That to my mind is the distinction between invalidity and nullity.”

For the respondents, Ms Sheikh was minded to accept that any reversion to residential use, on termination of the personal diplomatic use, had to be expressed by way of condition. She referred to I'm Your Man Ltd v Secretary of State for the Environment [1998] 77 P&CR 251. Mr Robin Purchas QC, sitting as a Deputy High Court Judge, considered a planning application for a use “for a temporary period of 7 years”. Permission was granted “in accordance with the terms of the application”. No condition was imposed, as it could have been, under section 72(1)(b) of the 1990 Act, requiring the discontinuance of use at the end of the period. Mr Purchas held that “the permission as granted became effectively a permanent permission”. That is not claimed in the present case but Ms Sheikh relies on the principle to justify the imposition of a restriction by way of condition, which Ms Sheikh submitted is a permanent restriction.

The issue as to what limitations may be imposed in the substance of the grant, as distinct from in a condition, has not been fully argued. There is no need to make a ruling on it in the circumstances of this case. I must not however be taken to approve the decision in I'm Your Man, or hold that any general principle can be derived from it.

The respondents submit that the notice is not a nullity. That being so, it cannot be challenged in these proceedings, the right of appeal under section 174 not having been exercised at the material time. It is further argued that the validity of the injunction does not in any event depend on the validity of the enforcement notice. Any use other than residential use is a breach of planning control. It is not a prerequisite to the grant of an injunction that an enforcement notice has been served. The judge found that an injunction was appropriate, having regard to the nature and persistence of the appellant’s conduct. This court should not quash it. Eady J cited, at paragraph 103, paragraph 29 of the speech of Lord Bingham of Cornhill in South Bucks
District Council v Porter [2003] 2 AC 558 in which Lord Bingham stated the breadth of the power under section 187B.

The judge recorded, at paragraph 18, that: “Ms Sheikh takes her stand squarely on the service of the enforcement notice” but reliance on the breach of planning control alone was kept open by her witness, Mr Piper, at paragraph 61. At paragraphs 99 to 101, Eady J rejected the submission on behalf of the appellant that alternative means of enforcement should have been tried first. He stated, at paragraph 101:

“I cannot accept this. Over a number of years there has been an unwillingness either to accept the Council's determination of the planning issues (in particular, as to what constitutes change of use and/or commercial activity) or to make an application for planning permission (or, for that matter, a certificate of legal user). Moreover, assurances have not been adhered to and, more recently, the obligations imposed by the January injunction have not only been ignored but also concealed from at least some of the persons who have paid money to hire the premises [names are given]. The Council has a duty to enforce planning control and there seems to be no alternative way of achieving this effectively without the grant of an injunction.”

It is not suggested in the present case that Miller-Mead is no longer operative. The court became aware that, on the day following the hearing of the appeal, another constitution of the court handed down judgments in Trott v Broadland District Council [2011] EWCA Civ 301 where it was alleged that an enforcement notice was a nullity. Written submissions were invited and received.

An inspector, hearing an appeal against the notice, had exercised powers under section 174 of the 1990 Act to correct the notice. The court found that, as corrected, the notice was formally valid on its face. However, Sullivan LJ, with whom the Chancellor and Toulson LJ agreed, questioned, in obiter remarks at paragraph 35, whether it is still appropriate to draw a distinction between those enforcement notices which are a nullity and those which are merely invalid. Sullivan LJ referred to the differences between the statutory framework in force at the time of Miller-Mead and that in force, including section 174, in the 1990 Act and earlier legislation. Sullivan LJ also noted the changing approach of the courts to issues of invalidity in the field of administrative law, citing the opinion expressed in Wade and Forsyth's Administrative Law (pages 250-253) that the terms "nullity" and "void" “have no absolute sense: their meaning is relative, depending upon the court’s willingness to grant relief in any particular situation”. It was held that the point did not arise in Trott because the notice as corrected was formally valid on its face and any challenge to its correction, if it could not be brought under section 174, would have needed to have been challenged promptly by way of judicial review (paragraphs 39 and 40).

Sullivan LJ’s view on the change of approach since the 1971 Act is demonstrated by the decision of Roch J in R v Tower Hamlets London Borough Council ex p P F Ahern (London) Ltd [1989] JPL 757. Roch J held that the inspector had power to correct a notice under section 88A(2) of the 1971 Act, as amended, enacted in 1981. The strict view taken by the Divisional Court in earlier cases was no longer appropriate. Roch J stated, at page 768:

“The second thing that this decision showed was that the law had progressed both by the enactment of section 88A(2) and recent authority from the law which had existed under the former section 87(4)(a) and the old decided cases, to the point where the pettyfogging had stopped, where artificial and nice distinctions understood only by lawyers no longer prevailed, and the Act could be read so that it meant what it said, namely that the Secretary of State might correct any defect or error in an enforcement notice if he was satisfied that the correction could be made without injustice to either party to the planning appeal.”

The word “pettifogging” emerged from the judgment of Templeman J in Eldon Garages Ltd v Kingston upon Hull CBC [1974] 1 All ER 358, where an enforcement notice was challenged. In Jarmain v Secretary of State for the Environment (unreported, transcript 12 April 2000), Brooke LJ, with whom Roch LJ and Sedley LJ agreed, stated that, if the court allowed the appeal in that case, which it did not, “we would be in danger of allowing enforcement law to return, in part, to the world of pettifoggery and arid technicality which attracted such strong judicial disapprobation in the 1970s and 1980s”.

There has of course been no correction of, or application to correct, the notice in this case. Ms Sheikh relies upon the changed approach to support her submission that the enforcement notice in the present case is not a nullity.

The court in Trott found:

On the basis of Trott, Mr Lopez submits that there had been no breach of planning control in the specific form relied on, a breach of condition 2, and the injunction fails on the same basis as that in Trott. Further, there having been no correction to the enforcement notice which could have been challenged at an earlier stage, it is open to the appellant to raise the nullity issue in the present proceedings.

Mr Lopez also relies on the approach followed by Sullivan LJ on the assumption that Miller-Mead is still correct, though the present case is distinguishable on the facts. As with the original notice in Trott, the enforcement notice does not clearly identify a breach of planning control on its face, it is submitted.

Before expressing my conclusions, I consider as a discrete issue the submission made on behalf of the respondents that condition 2 in the planning permission granted on 6 July 1960 imposed on the property a permanent restriction (unless further permissions were given) to use for residential purposes. As will appear, my conclusion on this issue does not lead me to a conclusion that the enforcement notice was a nullity.

What the permission in substance did was to acknowledge, and in effect to assert, that the existing use of the property was a residential use and to superimpose on that use a permission personal to the Commissioner to use the property (apart from the third and fourth floors) for diplomatic purposes. It was stated that the personal permission would not enure for the benefit of the land. On termination of the personal permission, only the pre-existing residential use would be permitted.

The last requirement was expressed in the form of a condition. The condition, while specifying what would happen on a termination of the personal diplomatic use, did no more than state what use could be made of the land in the absence of the personal permission.

What could not have been done by condition was to attach to a personal permission for diplomatic use, which did not enure for the benefit of the land, a condition defeating the pre-1960 use. If, for example, it had been found that there was a pre-existing commercial use, a condition purporting to exclude that use on termination of the limited personal permission would be unlawful. It would fall foul of the principle stated by each of their Lordships in the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578. At page 599F, Viscount Dilhorne stated:

“The power to impose conditions is not unlimited. In Pyx Granite Co. Ltd. v Ministry of Housing and Local Government [1958] 1 Q.B. 554 Lord Denning said, at p. 572:

‘Although the planning authorities are given very wide powers to impose 'such conditions as they think fit,' nevertheless the law says that those conditions, to be valid, must fairly and reasonably relate to the permitted development. The planning authority are not at liberty to use their powers for an ulterior object, however desirable that object may seem to them to be in the public interest.’

As Lord Reid said in Mixnam's Properties Ltd. v Chertsey Urban District Council [1965] A.C. 735, 751, this statement of law was approved by this House in Fawcett Properties Ltd. v Buckingham County Council [1961] A.C. 636.

It follows that the conditions imposed must be for a planning purpose and not for any ulterior one, and that they must fairly and reasonably relate to the development permitted. Also they must not be so unreasonable that no reasonable planning authority could have imposed them:”

Lord Scarman accepted, at page 619A, the submission that there are three tests:

“The three tests suggested are: (1) The condition must fairly and reasonably relate to the provisions of the development plan and to planning considerations affecting the land, (2) it must fairly and reasonably relate to the permitted development, and (3) it must be such as a reasonable planning authority, duly appreciating its statutory duties, could have properly imposed.”

In Newbury, disused airfield hangars were used as warehouses. Lord Scarman stated, at page 621G

“A condition requiring the removal of existing substantial buildings was not sufficiently related to the temporary change of use for which permission was granted in this case.”

Lord Lane, at page 628C, stated:

“That a condition requiring the hangars to be demolished cannot fairly be said to relate to the use of the hangars as warehouses.”

Lord Edmund-Davies stated, at paragraph 602G:

“In the circumstances of the instant case, the condition for removal of the hangars did not fairly or reasonably relate to the permitted development.”

A requirement that on the termination of a personal use for diplomatic purposes there could be no reversion to an existing use would not reasonably relate to the development permitted. It would be beyond the power of the local authority to impose that requirement as a condition. It would not come within section 72(1)(b) set out by Munby LJ in his judgment because the discontinuance contemplated in that sub-paragraph is of a use authorised by the permission, which the existing use was not. It was a use established apart from the permission. The condition did not create the restriction but confirmed the pre-permission use of the land.

The issue is not in the circumstances crucial because the existing permission was found to be confined to residential use and the condition does not purport to restrict that use. However, I reject the respondents’ submission that a condition could of itself create a future restriction on use. The validity of the enforcement notice, with its reliance on the condition, must be considered against that background.

I accept the submission that the 1960 planning permission had ceased to have effect by 2006. I agree with the appellant’s submission to the extent of holding that condition 2 attached to the 1960 permission ceased to operate, as a planning condition, when the diplomatic use of the property ceased. As a condition attached to a personal diplomatic permission, it did not in itself create a permanent restriction attaching to the land (Newbury). The issue is whether citation of and purported reliance in the enforcement notice on a condition which was no longer operative renders the enforcement notice a nullity. That can in my view be decided on a case by case basis by reference to the requirements of section 173 of the 1990 Act.

In making its judgment, the court should have regard to the interests of the property owner. The opening words of article 1 of the First Protocol to the European Convention on Human Rights provide:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions.”

However, it is open to the state “to control the use of property in accordance with the general interest”, as provided in article 1. Deprivation is to be “subject to the conditions provided for by law”. The requirements of article 1 are reflected in domestic law.

The requirements for an enforcement notice are set out in section 173 of the 1990 Act. Section 173 provides, in so far as is material:

“(1)

An enforcement notice shall state—

(a)

the matters which appear to the local planning authority to constitute the breach of planning control; and

(b)

the paragraph of section 171A(1) within which, in the opinion of the authority, the breach falls.

(2)

A notice complies with subsection (1)(a) if it enables any person on whom a copy of it is served to know what those matters are.

(3)

An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes.

(4)

Those purposes are—

(a)

remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place; or

(b)

. . .

(5)

An enforcement notice may, for example, require—

. . .

(c)

any activity on the land not to be carried on except to the extent specified in the notice; or

. . .

(8)

An enforcement notice shall specify the date on which it is to take effect and . . . shall take effect on that date.

(9)

An enforcement notice shall specify the period at the end of which any steps are required to have been taken or any activities are required to have ceased . . .”

Section 171A(1) provides:

“For the purposes of this Act—

(a)

carrying out development without the required planning permission; or

(b)

failing to comply with any condition or limitation subject to which planning permission has been granted,

constitutes a breach of planning control.”

In my judgment, the enforcement notice complied with the requirements of section 173. The “matters which appear[ed] to the local planning authority to constitute the breach of planning control” are plainly stated in paragraph 4, that is, the use of the premises for commercial and non-residential activities. That enables any person on whom a copy of it is served to know what those matters are. The activities “which the authority require to cease” are also plainly stated in paragraph 5, that is the use of the property for commercial and other non-residential uses. The purpose is to remedy the breach of planning control by discontinuing the use. The date on which the notice was to take effect was stated, as was the time for compliance.

That information having been given, the notice was not in my judgment “waste paper”, within the meaning of Miller-Mead. It is not rendered waste paper by the references to condition 2 of the 1960 planning permission and the restriction it contains. Those references to the condition were inappropriate but do not detract from the plain statement that “the premises shall not be used for any other purpose than for residential purposes”. That was the limit of the permitted use after 1999, the permission arising from the use to which property was normally put before the permission was granted in 1960.

The reference in the notice should have been to section 57(2) of the 1990 Act and not to the condition attached to the 1960 permission but the notice was accurate as to what permission existed for use of the property and that use, and the local planning authority’s requirement, was plainly stated in the notice. Though wrongly expressed as a breach of condition 2, the notice accurately conveyed the extent of the use to which the property could be put.

Nor do I consider that the notice was a nullity because it included the expression of “opinion” that the breach alleged was of failure to comply with a condition (section 171A(1)(b)). The opinion may have been faulty in that the wrong label was attached but the requirement was clearly stated and, on the present statutory scheme and approach, the notice is not a nullity because reference is made to a condition purporting to restrict to residential use rather than to the limit of the permitted use. The permitted use is accurately stated in condition 2 but the restriction arises after 1999 not by reason of the condition but the accurate statement on the facts of the effect of section 57(2). The condition accurately stated what would happen on termination of the permission granted to the Commissioner even though, as a condition attached to a planning permission, it no longer operated. The accurate legal position was in fact stated under the heading “condition”.

The remaining challenge arises from the presence of the words “such other purpose as shall have been previously approved by the council” in condition 2, a clause clearly intended to make clear the respondents’ power to grant further permission. The presence of those words do not, in my judgment, render the notice a nullity. Any further permission granted would have appeared on the face of the record. The requirement in the notice is clear and it plainly assumes that there is no permission beyond a residential permission. It would be read in that way.

Having regard to the clarity of the notice in its requirement, I would hold that, on the judge’s findings of fact, already summarised, an injunction would in any event have been appropriate to end blatant infringements of planning control. The notice was not a pre-requirement of an injunction and the nature of the objections to the notice is such, and the judge’s findings of fact are such, that the granting of an injunction was appropriate even if the notice had been a nullity on the basis claimed. The judge put it very strongly in the concluding paragraphs of his judgment, including in the last sentence of paragraph 101, already cited, with its reference to the absence of an alternative way of enforcing planning control.

The appellant could have attempted to regularise the position by way of a statutory appeal against the enforcement notice but declined to do so. Planning permission for commercial use could have been sought or it could have been claimed on appeal that the pre-1960 use included a commercial element. That course was not followed. It is now submitted that claims under section 174(2)(c) of the 1990 Act, (“those matters if they occurred do not constitute a breach of planning control”) or section 174(2)(d) (“at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters”) need not be asserted by way of appeal under section 174 if section 57(2) is to be relied on. No authority has been cited to support that proposition and it is entirely contrary to the scheme provided by sections 173, 174 and 285 of the 1990 Act. I see no merit in the submission. The permitted use of the property is clear and the claim to an injunction cannot now be defeated by an assertion that broader uses are permitted.

I would dismiss this appeal.

I agree with both judgments.

I agree with Pill LJ as to the proper outcome of this appeal and with his reasons for arriving at that conclusion.

In Miller-Mead v Minister of Housing and local Government [1963] 2 QB 196, 226, Upjohn LJ said that the test for validity of an enforcement notice was “does the notice tell [the person on whom it is served] fairly what he has done wrong and what he must do to remedy it?” For a long time, however, that simple truth was overlooked or evaded. The case-law abounded with hair-splitting technicalities of the kind which led to a characteristic explosion from Templeman J (as he then was) in Eldon Garages Ltd v Kingston-upon-Hull County Borough Council [1974] 1 All ER 358, 375. The result of a submission, which he declined to accept, would, he said, be that an enforcement notice “is a kind of spell by a witch doctor and unless the witch doctor gets the exact words of the incantation right, then the spell does not work.” He said it was time “that the pettifogging was stopped.”

Even before section 176(1) was amended in 1991, the tide had turned decisively: see Epping Forest District Council v Mathews [1987] JPL 132, R v Tower Hamlets LBC ex p P F Ahern (London) Ltd [1989] JPL 757 and Hammond v Secretary of State for the Environment (1997) JPL 724. In Ahern, Roch J (page 768) could refer to Mathews as showing that:

“the law had progressed … to the point where the pettifogging had stopped, where artificial and nice distinctions understood only by lawyers no longer prevailed, and the Act could be read so that it meant what it said, namely that the Secretary of State might correct any defect or error in an enforcement notice if he was satisfied that the correction could be made without injustice to either party”.

In Hammond, Brooke LJ (page 732) said that he completely agreed with Roch J. He returned to the same theme in Jarmain v The Secretary of State for the Environment (2000) when, endorsing what Roch J had said, he added (transcript page 13) that one of Parliament’s main purposes in 1991 had been to spare the courts “the pain of returning to those arid technicalities.”

Despite the attractive way in which Mr Lopez put his case, the plain fact is that were we to accede to his submissions we would simply be returning to the bad old days. I decline to do so. There is, happily, no need to.

The facts, reduced to essentials, could hardly be simpler and clearer.

Prior to the grant of the planning permission on 6 September 1960, the permitted use was residential. The appellant was clear in his evidence to Eady J that he had never denied or disputed that the primary use was residential. The 1960 planning permission, expressed as being personal to the Commissioner of the Governments of Sierra Leone and Gambia, authorised use for diplomatic purposes by the Commissioner. The second limb of condition (2) was very clear: “in the event of the Commissioner ceasing to use the premises for diplomatic purposes the premises shall not be used for any other purpose than for residential purposes.” The qualifying words which immediately followed – “or for such other purpose as shall have been previously approved by the Council” – merely spelt out explicitly what would in any event have been implicit, namely that any use would be lawful if pursuant to some future planning permission given by the Council. There has never been any further planning permission. So the permitted use is residential. The appellant claims that his use is lawful, his admittedly business and commercial use being, he says, merely ancillary to the primary residential use. That was a bold contention. It was unsurprisingly rejected by Eady J, whose finding on the point has not been challenged.

The enforcement notice issued on 14 June 2006, a significant time after the cesser of the use of the premises for diplomatic purposes, told the appellant what he had done wrong: “the premises are being used for a range of commercial and other non-residential activities in breach of this condition.” It told him what he must do to remedy it: “Stop using the property for commercial and other non-residential uses and use it only for residential purposes.” The appellant has never sought to appeal under section 174. Had he done so, the Secretary of State would have had power under section 176(1)(a) to “correct any defect, error or misdescription in the enforcement notice … if … satisfied that the correction or variation will not cause injustice to the appellant or the local planning authority.” The consequence of the appellant’s failure to appeal is spelt out in section 285(1):

“The validity of an enforcement notice shall not, except by way of an appeal under Part VII, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought.”

What could be clearer? What possible answer does the appellant have? In my judgment, he has none. I agree with Ms Sheikh, and essentially for the reasons she gives, that the submissions put before us by Mr Lopez fail at each step of the argument.

His starting point is that the combined effect of sections 171A(1), 172(1)(a) and 173(1)(b) is, first, that an enforcement notice can be issued only if there has been either (section 171A(1)(a)) the carrying out of development without the required planning permission or (section 171A(1)(b)) failure to comply with a condition or limitation in a planning permission, and, second (section 173(1)(b)), that the enforcement notice must state which paragraph of section 171A(1) is being relied on. There is no doubt that the enforcement notice with which are here concerned was issued in reliance upon section 171A(1)(b). But, says Mr Lopez, the stipulations set out as ‘Conditions’ in the planning permission, and in particular the critical stipulation in the second limb of paragraph (2) – “in the event of the Commissioner ceasing to use the premises for diplomatic purposes the premises shall not be used for any other purpose than for residential purposes” – are, as a matter of law, incapable of operating as conditions, at all events after the cesser of the use of the premises for diplomatic purposes. So on that ground, he submits, the enforcement notice is a nullity. I do not agree.

There are two separate propositions which Mr Lopez is here asserting, the first being that it was no longer open to the council in 2006 to rely upon the conditions set out in the 1960 planning permission. Mr Lopez took us to the decision of this court in Adur District Council v Secretary of State for the Environment, Transport and the Regions and another [2000] 1 PLR 1 and the decision of Beatson J in Avon Estates Ltd v The Welsh Ministers and Ceredigion County Council [2010] EWHC 1759 (Admin), as providing what he said was authority for the proposition of law he was relying upon. They do not. Adur proceeded, quite explicitly, on the basis that the relevant issue for the court was a matter of construction of the condition. Avon also turned on the question of construction, but not before Beatson J had rejected a submission very similar to that put before us by Mr Lopez, namely (see paras [17]-[18]) that after the relevant date the planning permission, which in that case was for a defined time, had “expired”, and with it the condition. As Beatson J said (para [42]), “the planning permission does not cease to exist. What has expired is the time within which the use should have ceased and the restoration should have occurred.”

I turn to sections 70 and 72. Section 70(1)(a) authorises the grant of planning permission “either unconditionally or subject to such conditions as [the local planning authority] think fit.” Section 72 is headed ‘Conditional grant of planning permission.’ Section 72(1) provides that:

“Without prejudice to the generality of section 70(1), conditions may be imposed on the grant of planning permission under that section –

(a)

for regulating the development or use of any land under the control of the applicant (whether or not it is land in respect of which the application was made) or requiring the carrying out of works on any such land, so far as appears to the local planning authority to be expedient for the purposes of or in connection with the development authorised by the permission;

(b)

for requiring the removal of any buildings or works authorised by the permission, or the discontinuance of any use of land so authorised, at the end of a specified period, and the carrying out of any works required for the reinstatement of land at the end of that period.”

There is nothing in these provisions to prevent a condition attached to a planning permission, if otherwise effective, having a continuing legal effect after the cesser of the use permitted by the planning permission. On the contrary, section 72(1)(b) contemplates the possibility of conditions which will operate after such cesser.

So the mere fact that there has been a cesser of the use of the premises for diplomatic purposes does not of itself, in my judgment, take Mr Lopez where he would have us go. The question is whether the second limb of condition (2) was ever good as a condition capable of surviving the cesser of the use of the premises for diplomatic purposes. Newbury District Council v Secretary of State for the Environment [1981] AC 578, to which my Lord has referred, shows that it was not.

The technicality of the point on which Mr Lopez relies is shown by his concession that if the relevant text in the second limb of condition (2) had not been expressed as a condition but inserted a little higher up the page under the heading ‘Development’ and as part of the description of the permitted development, he would not have an argument. Technical or not, however, the question is whether the point has substance. I agree that it does. However, though accepting that Mr Lopez is correct on this part of his argument, it breaks down entirely at the next stage.

Mr Lopez argues that, the condition being no longer enforceable, the enforcement notice is a nullity because it refers to and is founded on alleged breach of the condition. In short, he accepts that the council could have framed an enforcement notice in accordance with section 171A(1)(a) to which, he accepts, the appellant would have had no answer. But the fact is that it chose to frame the notice under section 171A(1)(b) and that, he submits, is a fatal defect. I do not agree.

At this point I must return to Epping Forest District Council v Mathews [1987] JPL 132 and R v Tower Hamlets LBC ex p P F Ahern (London) Ltd [1989] JPL 757. Those cases are, in my judgment, authority for two propositions which are determinative of the outcome here: first, that a defect, error or misdescription in an enforcement notice which is capable of correction by the Secretary of State under section 176 is not such a defect, error or misdescription as is capable of making the notice a nullity in accordance with the doctrine in Miller-Mead; second, that if the defect, error or misdescription is the statement that the notice is given under section 171A(1)(a), when in fact it should have said 171A(1)(b) – or vice versa – that is an error capable of correction by the Secretary of State under section 176. So even if Mr Lopez is correct in the first part of his submission it avails him nothing, for the defect upon which he relies would not on any view make the notice a nullity. I repeat: the notice told the appellant what he had done wrong and told him what he must do to remedy it.

All this assumes that the validity of the notice was a pre-requisite to the proper grant of the injunction of which the appellant now complains. But it was not. My Lord has referred to section 187B. A local authority is not confined in seeking injunctive relief to cases where it has issued an enforcement notice. It can seek such relief whenever it “consider[s] it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction”. I agree with everything my Lord has said on this aspect of the appeal. I add only that the appellant’s attempt to argue that the formal authorisation for the commencement of proceedings pursuant to section 187B given by the council’s head of legal services in a document dated 22 December 2009 was inapt to cover any application other than one founded on the enforcement notice – a technical point if ever there was one – is quite hopeless. The authorisation is expressed in quite general terms and refers to what is said to be a breach of both “planning control” and “the requirements of the enforcement notice.”

Eady J was fully entitled to grant the injunction. The appeal must be dismissed.

I add two final observations. We were pressed by Mr Lopez with the well-known words of Lord Scarman in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132, 140-141. I accept, of course, that one cannot look outside the statutory scheme for some principle or rule whose application might be thought to produce a fairer solution. Our duty, as Lord Scarman said, is “to give effect to the intention of Parliament as evinced by the statute, or statutory code, considered as a whole.” That we have done. Our duty is to apply the statutory code according to its language, sensibly construed and as Parliament intended. It is not our duty to seek for technical or pedantic reasons why, as a pettifogger might argue, someone as obviously in breach of planning control as the appellant should be enabled to buy further time and to postpone the inevitable day of reckoning, all the time making money out of his unauthorised use of the land. The statutory code is not some game of ‘snakes and ladders’. It is a feature of an immature system of law that form is everything: the slightest error of procedure invalidates the proceedings, the merest verbal slip is fatal. A mature system of law, however, is concerned with substance rather than form, justice rather than technicality.

The other point relates to Miller-Mead and the very recent decision of this court in Trott v Broadland District Council [2011] EWCA Civ 301. I have assumed throughout this judgment that the concept of nullity as explained in Miller-Mead is still part of the law. For my own part I share Sullivan LJ’s doubts in Trott as to whether it is still appropriate to draw the traditional distinction between mere invalidity and nullity. But what is clear, in my judgment, is that, even assuming (without deciding) that Miller-Mead remains good law on this point, the circumstances in which an enforcement notice can ever be a nullity are likely to be fairly few and far between. At most, arguments of nullity will arise only in cases – which given the amplitude of the power conferred by section 176(1) are likely to be comparatively rare – where the defect, error or misdescription in the enforcement notice is so gross that it cannot be corrected without causing injustice. That said, the drafting of an enforcement notice is an important step which always requires care and thought. I should not wish to give any encouragement to carelessness or sloppy drafting.