Sanders & Anor v First Secretary Of State

The appellants own land at Galley Hill Yard, Galley Hill Road, Waltham Abbey in Essex. The site is the subject of an enforcement notice issued on 15 April 2003 by Epping Forest District Council and upheld on appeal, in a decision dated 27 November 2003, by an inspector appointed by the First Secretary of State. The appellants seek to appeal under s.289 of the Town and Country Planning Act 1990 against the inspector’s decision. The case has been listed as a hearing of the application for permission to appeal, with the hearing of the substantive appeal to follow immediately if permission is granted. This means that I have had the benefit of full argument on the issues.

Planning permission is required for the carrying out of development: s.57(1) of the 1990 Act. The making of a material change in the use of land is development: s.55(1). Carrying out development without the required planning permission constitutes a breach of planning control: s.171A(1). Where it appears to a local planning authority that there has been a breach of planning control and that it is expedient to issue an enforcement notice the authority may do so: s.172(1). The issue of an enforcement notice constitutes the taking of enforcement action: s.171A(2). The notice must state the matters which appear to the authority to constitute the breach of planning control: s.173(1). The notice complies with this requirement if it enables the person on whom it is served to know what those matters are: s.173(2). The notice must specify the activities which the authority requires to cease in order to achieve, wholly or partly, the remedying of the breach: s.173(3)-(4).

Provision is made under s.171B (which was inserted into the 1990 Act by s.4 of the Planning and Compensation Act 1991) for various limitation periods in respect of enforcement notices. In the case of building works, the period is four years from substantial completion of the works: s.171B(1). Other forms of development, including the making of a material change in the use of land, are covered by s.171B(3) which reads:

“In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach.”

In certain circumstances, under what is known as the “second bite” provision, an additional four years is allowed for enforcement action. Thus s.171B(4) provides:

“The preceding sections do not prevent … (b) taking further enforcement action in respect of any breach of planning control if, during the period of four years ending with that action being taken, the local planning authority have taken or purported to take enforcement action in respect of that breach.”

A person served with an enforcement notice may appeal to the Secretary of State against it on a number of grounds set out in s.174(2), including (a) “that, in respect of the breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted”, (b) “that those matters have not occurred”, (c) “that those matters … do not constitute a breach of planning control”, (d) “that, at the date when the enforcement notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters”, (f) “that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach”, and (g) “that any period specified in the notice [for compliance] falls short of what should reasonably be allowed”.

In certain cases, of which this was one, an inspector appointed by the Secretary of State can hold an inquiry and determine the appeal. He has power to correct any defect, error or misdescription in the notice and to vary the terms of the notice if he is satisfied that this will not cause injustice: s.176(1).

An appeal on a point of law lies, with permission, against the inspector’s decision: s.289.

On 22 April 1999 the council issued an enforcement notice (“the first notice”) alleging the following breach of planning control in relation to the site:

“Without planning permission, a material change in the use of the land including subdivision from agricultural use to a mixed commercial use for purposes within Classes B1, B2 and B8 of the Use Classes Order 1987 and sui generis uses including:

(a)

Storage of plant, machinery, equipment, goods and materials including aggregate and other building materials;

(b)

Wholesale supply of goods;

(c)

Repair, storage, maintenance and parking of all types of motor vehicles;

(d)

Scrap metal recovery;

(e)

Metal work in manufacture and repair; and

(f)

Siting of portacabins in connection with the above uses.”

On appeal, in a decision dated 22 February 2000, an inspector quashed the first notice on the basis that the case as presented by the council at the inquiry represented a complete change from the allegation in the notice, and the notice could not be corrected without causing injustice to the appellants. He stated:

“8.

… However, it appears to me that the whole basis of the Council’s case has changed. The breach of control alleged in the notice, involving a material change of use from one use, agriculture, to another, albeit composite, commercial use, is in my view fundamentally different from what had seemingly become the Council’s case at the inquiry, namely a material change from some form of commercial use of the site as a whole in 1989, even if this included a number of elements, to a variety of separate and diverse commercial uses forming separate planning units in April 1999 when the notice was issued. …

9.

The change in the Council’s case has clear implications for the appellants’ ability to respond to the enforcement notice. It must be clear in relation to the ground (d) appeal what has to be compared over the 10-year period. It is therefore in my view incumbent upon the Council, having concluded that there was not a single composite use but a number of separate planning units, to spell out in the notice each of those units and the uses allegedly occupying them. This was not done. … Had these separate uses and planning units been alleged in the notice, it may have been possible for the appellants to argue, based on the enforcement officer’s report of his visits to the site, that some parts of the site had been occupied by similar uses in 1989 and were therefore immune from enforcement action. The change in the Council’s case, which became fully clear only at the inquiry, could therefore have caused them injustice.”

On 15 April 2003 the council issued the notice that is the subject of the present challenge (“the second notice”). The breach of planning control alleged in para 3 of the notice was as follows:

“Without planning permission:

Within the ten years prior to the 22^nd of April 1999, a material change of use of the land through subdivision of the planning unit, intensification, resumption of abandoned uses and introduction of new uses to use for mixed commercial purposes within classes B1, B2 and B8 of the Use Classes Order 1987 and sui generis uses including:

(a)

Storage of computers

(b)

Storage of plant, machinery, equipment, goods and materials including aggregate, drainage pipes and other building materials and equipment,

(c)

Woodworking

(d)

Repair, storage, maintenance and parking of all types of motor vehicles

(e)

Paint spraying of motor vehicles

(f)

Overnight Lorry parking

(g)

Outdoor storage of tyres

(h)

Pallet storage

(i)

Storage of Lorry container bodies

(j)

Scrap metal storage

(k)

Scrap metal recovery

(l)

Metal work manufacture and repair

(m)

Scaffolding depot

(n)

Highway repair depot

(o)

Bill posting depot

(p)

Use of the land for siting and stationing of portacabins in connection with the above uses

(q)

Use of the land for the siting and stationing of caravans in connection with the above uses

(r)

Use of lorry container bodies as ancillary accommodation in connection with the above uses

In addition there has been the creation of hardstanding and other facilities and the erection of security fences and gates to subdivide and enclose the land to facilitate the above uses.”

By para 5 of the notice, the appellants were required to do the following:

“(a)

Cease the use of the land for the purposes set out in 3 above

(b)

Remove from the land and not return all machinery, goods, plant, equipment, storage racks, caravans, portacabins, container lorry bodies and other materials or similar equipment brought onto the land in connection with the uses set out in 3 above

(c)

Remove from the land hardstanding laid down since 23^rd April 1989 in connection with the use of the land for the purposes set out in 3 above

(d)

Remove from the land subdividing fences and gates erected since 23^rd April 1989 in connection with the use of the land for the purposes set out in 3 above.

(e)

Remove from the land electricity apparatus including wires and posts installed since 23^rd April 1989 in connection with the use of the land for the purposes set out in 3 above.

(f)

Take down and remove any buildings and extensions or alterations to pre-existing buildings where the works have been carried out since 23^rd April 1989 in connection with the use of the land for the purposes set out in 3 above.

(g)

Remove from the land any resultant debris.

Time for compliance: Six Months after this notice takes effect.”

The appellants appealed to the Secretary of State against the second notice on the grounds set out in s.174(2)(a), (b), (c), (d), (f) and (g) of the 1990 Act.

At the public inquiry both the appellants and the council presented their cases on the basis that the enforcement notice was issued under the “second bite” provisions of s.171B(4)(b). After the close of the inquiry, and in the light of a judgment of mine in Fidler v. First Secretary of State [2003] EWHC 2003 (Admin), the inspector invited and received from both parties written submissions as to whether he should treat the notice as having been issued afresh rather than as a second bite notice.

In his decision the inspector first considered a submission by the appellants that the enforcement notice was invalid on the ground that the allegations in the notice were not supported by the evidence presented by the council at the inquiry. Whilst expressing considerable sympathy with the appellants, the inspector pointed out that this was not the first time the matter had come to appeal and said that the council had made a valiant attempt to take on board the criticisms levied at it previously. He would endeavour to save the notice, by drastic surgery if necessary, provided he was satisfied that no injustice to any party arose. In view of the past history leading up to the issue of the second notice, he should exercise his duty to get the notice right once and for all.

The decision letter went on:

“4.

… However, it must not be overlooked that this notice was issued under the ‘second bite’ provisions of section 171B(4)(b) of the amended 1990 Act. The recent case of Fidler v First Secretary of State of the Environment and Reigate & Banstead BC, cited in paragraph 1 above, indicates that where a second bite notice goes wider than earlier notices, and does not merely describe more accurately what has been misdescribed in the original notice, this is not a mere correction of a technicality. This is said to fall outside the range of circumstances at which section 171B(4)(b) is aimed.

5.

In comparing the two notices, both were directed at an alleged change of use to mixed commercial purposes within classes B1, B2 and B8 of the 1987 Use Classes Order and sui generis uses. However, six commercial uses are specified within these all-embracing categories in the 1999 notice while 18 appear in the schedule in the current notice. Not all of the original six appear in the more recent 18. This seems to be less of a misdescription, more of an accurate reflection of the range and nature of the uses on the site at the times that the two notices were issued. In these circumstances following the recent case in Fidler, I find that the only way to retrieve the current notice would be to treat it as having been issued afresh. In that situation, the appellants only have to demonstrate continuous usage of the site from 15 April 1993 rather than 22 April 1989 if ‘rolling immunity’ under section 171B(3) is to be achieved. Contrary to what is said in the solicitors’ letter of 31 October, I fail to see how a less onerous requirement, which might give rise to a successful appeal under section 174(d), could cause injustice to the appellants.

6.

Overall, I intend to use my extensive powers under section 176(1) of the 1990 Act as amended to correct any defect, error or misdescription in the enforcement notice where this does not cause any injustice to the appellants or the local planning authority. The allegation in the notice will be corrected to read “a material change in the use of the land to use for mixed commercial purposes within Classes B1, B2 and B8 of the Use Classes Order 1987 and sui generis uses including:-” following deleted reference to the use commencing in 1999 and before the schedule of uses rehearsed on page 1 of this decision. Restoring a starting use of “agriculture” to a corrected notice would seem to me to make little difference one way or another. There seems to be general agreement between the main parties that no form of agriculture has been practised on this site for a very long time. In the unlikely event of its resumption, planning permission would not be required, as agriculture is expressly excluded from the definition of development by section 55(2)(e) of the 1990 Act. The cumulative effect of these corrections would not only render the allegation in the enforcement notice far more intelligible, they would also make the deemed application and the appeals on grounds (f) and (g) much simpler to define and determine.”

On the basis of the corrected notice, the inspector then held, in paragraphs 7-8, that the appeal on grounds (b) and (c) must fail. As a matter of fact, the site was currently used for mixed commercial purposes within Classes B1, B2 and B8 of the Use Classes Order 1987 and sui generis uses. Use of land for such purposes without the benefit of planning permission must constitute a breach of planning control. Although the parties had agreed at the inquiry that the appeal on grounds (b) and (c) was parasitic on the ground (d) appeal, the inspector was firmly of the view that as a result of his recasting of the notice the failure of the appeal under grounds (b) and (c) had no impact upon the consideration of the ground (d) appeal.

In considering the ground (d) appeal, the inspector divided his analysis into two sections, headed “accrued rights” and “rolling ten-year immunity”.

In relation to accrued rights he directed himself as follows:

“9.

In Panton & Farmer v Secretary of State for the Environment, Transport & the Regions and Vale of White Horse DC … it was held that the Planning & Compensation Act 1991 did not remove already accrued immunities by introducing an entirely new basis for immunity from development control on the basis of a 10-year rolling period of use. An immunity accrued under the previous statutory provisions was not prejudiced by the 1991 Act. Further, an accrued planning use right could only be lost through operation of law, ie by abandonment, by the formation of a new planning unit and by way of a material change of use. The approach of the decision-maker should be to ask when did the material change of use alleged in the enforcement notice occur? To be lawful this should have taken place before 1 July 1948, by 31 December 1963 or [here I interpose in the judgement of Mr Lockhart-Mummery QC in the light of the subsequent judgement of the Court of Appeal in Thurrock Borough Council v Secretary of State for the Environment, Transport & The Regions and Holding …] a ten-year period prior to the coming into effect of section 4 of the 1991 Act on 27 July 1992 ie 27 July 1982.”

He went on to make the following findings of fact, at paragraphs 10-13:

On the basis of those findings he concluded:

“13.

… In these circumstances, I do not consider that the appellants had acquired any lawful rights for the uses, the subject of this notice, by 27 July 1992. Moreover, these were and are materially different from any of the established uses found in the Inspector’s report of October 1962. Consequently, I find that the uses alleged in the enforcement notice had not acquired any accrued rights by the time that section 4 of the 1991 Act had taken effect. Even if the period were advanced to the middle of 1993, when it is agreed that there was a distinct lull in the proceedings (see paragraph 15 below), I do not have any evidence of the small-scale B1, B2 and B8 uses starting on the site by mid 1983. I am satisfied that none of the uses currently on this site had become lawful in either 1992 or by 1993 at the latest.”

In relation to the rolling ten-year immunity, the inspector directed himself as follows:

“14.

I have little doubt that a composite B1, B2 and B8 use was to be found on the totality of the appeal site more than ten years before the corrected notice, the subject of this appeal, was issued. … However, the judgement at first instance in Thurrock Borough Council v Secretary of State for the Environment, Transport & The Regions and Holding, … endorsed by the Court of Appeal, indicates that it is wrong to assume that a material change of use is a once and for all event. I concur with the Council that, for the use to have become lawful, the appellants have to demonstrate that it has been carried out throughout the ten-year period prior to 15 April 2003 at a level against which an enforcement notice could reasonably have been issued.”

He then made a finding of fact, for reasons given in paragraphs 15-16 of the decison, that between summer 1993 and late 1996 the activities on site were considerably reduced, and were indeed at such a low ebb that it would have been unreasonable to have taken enforcement action against the quantum of usage then to be found on the site. He concluded:

“16.

… I am satisfied that this long period of three years, during which it would have been unreasonable to take enforcement action, is fatal to the appellants’ claim of ten-years rolling immunity, whether measured back from 22 April 1999 or 15 April 2003. Consequently, I am firmly of the opinion that the appeals on ground (d) should fail.”

Having dismissed the appeal on ground (d), he went on to consider and dismiss the appeal on ground (a). He did, however, uphold a separate appeal under s.78 for a much more limited grant of planning permission, subject to various conditions.

In relation to the ground (f) appeal the inspector deleted various requirements but upheld the requirement to remove fences, for the following reasons:

“40.

As far as the ground (f) appeals are concerned, requirements (c) to (g) inclusive relate to operational development, much of it within the area that is likely to remain as a result of the implementation of the successful section 78 appeal. The only unauthorised matters relating to the eastern end of the site, which lies outside the section 78 appeal and, other than cessation of the unauthorised use, are hardstanding, fences and portacabins. In view of the contaminated nature of the site, I am loath to disturb hardsurfacing, even if some of it may have been added after the unauthorised activities commenced in the eastern half of the land. The fences would serve no useful purpose, undermine the site’s open aspect in the green belt and should go. The same considerations apply to portacabins. All of the other matters would be controlled by the conditions attached to the grant of planning permission in the western part of the site or would disappear with the removal of buildings that are the subject of valid enforcement notices. Therefore, reference to removal of hardstanding, removal from the land of electricity apparatus, including wires and posts, and taking down and removal of any buildings or extensions or alterations to pre-existing buildings will be deleted from the notice. To that extent, the appeals on ground (f) succeed.”

He did, however, allow the appeal under ground (g) to the extent of allowing a period of 9 months rather than 6 months for compliance.

In his skeleton argument Mr Dove QC, for the appellants, formulated five issues as follows:

The “second bite” issue

Mr Dove submits that the inspector was wrong in law to treat the second notice as a fresh notice rather than as falling within the second bite provisions of s.171B(4)(b). The second notice did not go wider than the first. Both were complaining about the same thing in terms of what was physically happening on the site. It is irrelevant that the first notice alleged a material change of use from agriculture and that the second alleged a material change of use from some unparticularised commercial use. It is also irrelevant that the list of specific uses in the two notices was different: the specific uses were no more than illustrations of the alleged material change to mixed commercial uses falling within the same planning categories in the case of each notice. The second notice was simply a re-description of what was covered by the first notice. Moreover, by treating the second notice as a fresh notice and causing the focus to shift to how matters stood on the site in April 1993 rather than in April 1989, the inspector caused prejudice to the appellants.

The relevant statutory provision, s.171B(4)(b), is set out above. It provides that the general rules on time limits do not prevent further enforcement action in respect of any breach of planning control “if, during the period of four years ending with that action being taken, the local planning authority have taken or purported to take enforcement action in respect of that breach”.

The leading case on that provision is the decision of the Court of Appeal in Jarmain v. Secretary of State for the Environment, Transport and the Regions [2000] 2 PLR 126. In that case it was held that the provisions are apt to cover a situation where two notices relate to the same actual breach of planning control but describe it in different ways. The intention is to overcome the problems caused by technical defects in an enforcement notice, as where it misdescribes the breach.

In Fidler I considered the application of Jarmain to a factually complex situation involving three earlier notices and a later notice, Notice I. For reasons set out at paragraphs 43-48 of my judgment, I held that the inspector had erred in treating Notice I as a valid second bite notice. In particular:

“It follows in my judgment that Notice I goes wider in substance than the earlier notices and is directed at additional facts. It does not simply describe more accurately what was misdescribed in the earlier notices; it goes further than the earlier notices. That takes the case outside the scope of the reasoning in Jarmain …” (paragraph 47).

In the present case I think it plain that the inspector followed the same approach. His reference to Fidler at the end of paragraph 4 of the decision letter was apposite and accurate. He went on to ask himself whether the second notice went wider in substance than the first notice or merely described more accurately what had been misdescribed in the first notice. In paragraph 5 he took as his starting point the fact that both notices were directed at an alleged change of use to mixed commercial purposes within classes B1, B2 and B8 of the Use Classes Order and sui generis uses. It is worth repeating how he went on:

“However, six commercial uses are specified within these all-embracing categories in the 1999 notice while 18 appear in the schedule in the current notice. Not all of the original six appear in the more recent 18. This seems to be less of a misdescription, more of an accurate reflection of the range and nature of the uses on the site at the times that the two notices were issued. In these circumstances following the recent case in Fidler, I find that the only way to retrieve the current notice would be to treat it as having been issued afresh.”

Thus he found on the facts that the second notice was wider in substance than the first notice and not simply a more accurate description of what was covered by the first notice; and this led to his conclusion that the second notice was not a valid second bite notice but had to be treated as a fresh notice.

In my judgment the inspector directed himself correctly in law and made a finding reasonably open to him in the application of the relevant principles to the facts. As to the facts, I reject in particular the appellants’ contention that the two notices were addressing the same thing in terms of what was happening on site. The inspector found that the specific uses listed in the two notices were “more of an accurate reflection of the range and nature of the uses on the site at the times that the two notices were issued”, i.e. that what was happening on site in 2003 was not identical to what was happening on site in 1999 and that the difference in the notices reflected that difference on the site. That is an unassailable finding and provided the soundest foundation for the inspector’s conclusion that the second notice was not a valid second bite notice.

I should add for completeness that, although the use described in the two notices was in each case use for mixed commercial purposes within classes B1, B2 and B8 of the Use Classes Order and sui generis uses, it does not follow that the notices were addressing the same use on site. A change in the components of a mixed use involves a change in the mixed use itself, even if the changed components fall within the same use classes as before: see Belmont Riding Centre v. First Secretary of State [2003] EWHC 1895 (Admin) at paragraph 31. It is therefore necessary to focus on the actual mix of uses addressed, rather than on the general reference to certain use classes and sui generis uses, in order to determine whether the second notice related to the same breach of planning control as the first notice. It follows that the inspector was right to look at the specific uses identified in each notice and not just at the general description of the mixed use.

In my view the issue of prejudice to the appellant falls to be considered as part of the second issue (amendment of the notice) rather than in the context of the second bite issue. Prejudice could not affect the correctness in law of the inspector’s finding that the second notice fell to be treated as a fresh notice rather than as a second bite notice. But in any event I do not consider there to have been any prejudice. The appellants were given an opportunity to address the issue and its consequences, and the inspector took their representations into account. Moreover it was more favourable to the appellants, as the inspector observed, to hold that the second notice was a fresh notice than a second bite notice, since the starting point for the ten year rolling immunity was then 1993 rather than 1989.

Had I reached a different view about the correctness of the inspector’s finding on the second bite issue, I would not have regarded any error on this question as a sufficient reason for quashing the decision. At the end of paragraph 16 of the decision the inspector made clear that his finding on the ten year rolling immunity under s.171B(3) would have been exactly the same if the ten year period had run from 1989 to 1999 (as would have been the case if the second notice was a valid second bite notice) as it was in relation to the period from 1993 to 2003. In either case, on the inspector’s reasoning, the reduction in activities on site between 1993 and 1996 was fatal to the claim to immunity.

Correction of the notice

Under s.176(1) an inspector is empowered to correct any defect, error or misdescription in an enforcement notice if he is satisfied that this will not cause injustice. I have set out the passage in paragraph 6 of the inspector’s decision where he exercised that power to correct the second notice. Following that correction, the breach of planning control alleged in paragraph 3 of the notice was:

“Without planning permission: a material change in the use of the land to use for mixed commercial purposes within Classes B1, B2 and B8 of the Use Classes Order 1987 and sui generis uses including [the 18 specified uses and the reference to the creation of hardstanding, fences, etc.].”

Mr Dove’s submission is that the correction of the notice was unlawful because it caused injustice in the form of substantial prejudice to the appellants. In quashing the first notice, the first inspector had emphasised the need to make clear what has to be compared over the ten year period. In the second notice the council had sought to address the problems identified by the first inspector. In alleging a material change of use “through subdivision of the planning unit, intensification, resumption of abandoned uses and introduction of new uses” to use for mixed commercial purposes, the council had accepted implicitly that there was a level of commercial activity in 1989 to which it was lawful for the appellants to revert. The effect of the second inspector’s correction of the notice was to deprive the appellants of that “fall-back” position. There was no indication of what was the use from which there had been a material change. The position was similar to that which had obtained under the first notice, which the first inspector quashed. It meant that the appellants were denied an opportunity to address relevant matters.

I have found those submissions difficult to follow and wholly unpersuasive. It is evident from the inspector’s decision that close attention was given by all concerned to the uses on the site at all material times, enabling comparisons to be drawn between the uses at the beginning and end of (as well as during) any potentially relevant ten year period. This becomes even clearer when one looks at the parties’ submissions at the inquiry, in passages to which my attention was drawn both by Mr Dove for the appellants and by Mr Harrison for the council. The deletion of the words “through subdivision of the planning unit, intensification, resumption of abandoned uses and introduction of new uses” did not involve any additional allegation, nor did it render the remaining allegation of material change of use fundamentally different in character; and in my view the appellants had the opportunity to address and did address that remaining allegation. So, too, no prejudice was caused by the deletion of the date.

The contention that the correction to the notice denied the appellants a fall-back position of a use to which they could revert is in my view equally unsustainable. Neither the second notice in its original form nor the corrected notice specified the use from which a material change was alleged to have been made; but it is common ground that a notice does not have to describe the previous use (see Westminster City Council v. Secretary of State for the Environment [1983] JPL 602). In so far as it is necessary for the local planning authority to make clear what the previous use was, the council did make clear as part of its case what the uses were alleged to have been at all material times.

Further, the legal position is that where an enforcement notice has been issued in respect of development of land, planning permission is not required for use of the land for the purposes for which it could lawfully have been used if the development had not been carried out: s.57(4) of the 1990 Act. It seems to me that on the facts of the present case the inspector was right in saying that "[t]he net effect … of my findings in paragraphs 9 to 16 inclusive is that, as a result of its past history, the appeal site has no lawful use to which it can revert in the event of the enforcement notice being upheld" (paragraph 24) - subject to the possibility of resumption of agricultural use which does not require planning permission (paragraph 6) and, of course, to any development for which planning permission might be granted in the future, such as the limited development for which planning permission was granted pursuant to the s.78 appeal (paragraph 45). None of this needed to be specified in the enforcement notice, whether in original or corrected form.

The application of s.171B(3)

The appellants' case on this issue arises out of the passage in paragraph 9 of the decision letter in which the inspector, having referred to the decision of the Court of Appeal in Secretary of State for the Environment v. Thurrock Borough Council [2002] JPL 1278, states that the change of use alleged in the enforcement notice would be lawful if it took place in a ten year period prior to the coming into effect of section 4 of the 1991 Act on 27 July 1992 (it was s.4 of the 1991 Act which inserted s.171B into the 1990 Act). Mr Dove submits that this was a clear misstatement of the law. Section 171B(3) simply states that "no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach". The approach the inspector should have adopted was to identify the date of the breach and to ask himself whether ten years or more had elapsed between that date and the date of the enforcement notice. On the inspector's own findings (paragraph 13) the date of the breach was 1984. Since more than ten years had elapsed between that date and the date of the enforcement notice (whether one takes for this purpose the 1999 notice or the 2003 notice), the use was immune from enforcement action.

A further aspect of the argument is that the lull in activity between 1993 and 1996 was irrelevant to the question of immunity from enforcement, so that the inspector erred in regarding it as fatal to the appellants' claim. To the extent that this appears to be in conflict with Thurrock, it is submitted that the gloss applied in that case arises only where it is not clear when the breach took place.

In order to assess those submissions, I start with the decision in Thurrock itself. The factual position in that case was in summary that an enforcement notice had been issued in 1999 alleging a change of use to use as an airfield. The inspector held that if the use as an airfield had commenced before 1989 the appeal under ground (d) should succeed: it was not necessary to demonstrate that the use had been continuous throughout the ten year period. He found on the facts that there had been use as an airfield for some two years in the early 1980s, that there had been no abandonment of such use and that the use in the early 1980s was not materially different from that alleged in the enforcement notice. On that basis he allowed the appeal. The Court of Appeal held that the inspector’s approach had been wrong in law.

In paragraph 15 of the judgment, Schiemann LJ summarised the essential reasoning of the judge at first instance, including:

“(ii)

The statute gives immunity if the breach complained of in the enforcement notice occurred more than 10 years ago;

(iii)

The rationale of the immunity is that throughout the relevant period of unlawful use the LPA, although having the opportunity to take enforcement action has failed to take any action and consequently it would be unfair and/or could be regarded as unnecessary to permit enforcement;

(iv)

If at any time during the relevant period the LPA would not have been able to take enforcement proceedings in respect of the breach, for example, because no breach was taking place, then any such period can not count towards the rolling period of years which gives rise to the immunity.”

In paragraph 25 Schiemann LJ expressed agreement with the rationale of the immunity provisions, stating that the authority loses its chance to enforce if the new use continues throughout the ten year period. He continued:

“26.

The concept of abandonment, which was central to the Inspector’s reasoning, is one which has been evolved in circumstances where a landowner has a right under planning law to use his land in a particular way but then either does not use it actively at all or starts to use it in a different way. Can the landowner thereafter resume without a further planning permission what undoubtedly had been a lawful use on an earlier date? This sort of situation can undoubtedly pose problems. It was that sort of situation with which Panton was concerned.

27.

In the present case, had the activities which took place on the land between 1981-1983 continued unabated until 1992 and had the landowner then ceased to use the land for aircraft activities for 3 years and then sought once more to use it for aircraft activities that type of problem would have arisen. But the inspector did not find that the commercial use continued unabated. If anything, he found the contrary. He approached his task by asking whether the LPA had shown that the commercial use which existed in 1981 and 1982 had been abandoned and applying a presumption that in the absence of clear evidence to the contrary the unlawful commercial activity continued throughout the period 1981-1989. Thus instead of deciding whether the landowner had shown that the unlawful activity had continued throughout the relevant period he asked himself whether the LPA had discharged some burden of proof in relation to that period. He apparently held that the landowner’s own declaration in the Requisition for Information that on 8 July 1983 the land was being used for agriculture and a dwelling was not sufficient. He did not ask himself whether enforcement action could have been taken throughout the period 1981-1991 or any other clearly defined 10 year period. That is a question which should in my judgement have been addressed by him and should be addressed by the Secretary of State if this appeal is dismissed and the case is remitted to him.

…

29.

Nor did the inspector clearly address the question whether there had been a material change in the use of the land within the 10 years prior to the issue of the enforcement notice. He did not examine what in 1989 the facts were on the ground. It may be that it was open to him to come to the conclusion that what was going on in 1989 was similar to what was going on 10 years later and that nothing which should be described as a material change of use had occurred between those dates. However, I am not persuaded that this was the way he approached his task.”

Chadwick LJ agreed that the appeals should be dismissed but added some observations of his own:

“56.

In those circumstances the question which the inspector appointed by the Secretary of State to determine the appeal (under the powers conferred by schedule 6 of the Act) was required to address, in relation to ground (d) of section 174(2) of the Act, was this: had the breach of planning control stated in the notice of 15 July 1999 – that is to say the change of use of the land from use for domestic purposes and agriculture to use for domestic purposes, and as an airfield and for the storage of aircraft – taken place more than ten years before the issue of the notice?

57.

The correct approach to that question, as it seems to me, was to ask whether there had been a change of use of the land from use for domestic purposes and agriculture to use for domestic purposes and as an airfield and for the storage of aircraft within the period of ten years immediately preceding 15 July 1999 – that is to say, since 15 July 1989. If there had been a change of use from use for domestic purposes and agriculture to use for domestic purposes and as an airfield and for the storage of aircraft since 15 July 1989, then it was irrelevant, for the purposes of ground (d), that there might have been use as a commercial airfield in the past – that is to say, between 1981 and 1984. Different considerations would arise where an earlier use had given rise to an “established use” under the provisions formerly contained in section 94 of the Town and Country Planning Act 1971 and section 191 of the 1990 Act (as originally enacted); but that was not this case.

58.

In order to decide whether there had been a change of use from use for domestic purposes and agriculture to use for domestic purposes and as an airfield and for the storage of aircraft since 15 July 1989, the inspector needed to ask whether use as an airfield and for the storage of aircraft had been continuous since 15 July 1989.”

Chadwick LJ went on to distinguish the case of Panton on which the inspector had relied. In that case there was evidence of an accrued established use capable of giving rise to the right to an established use certificate under the provisions then in force. The deputy judge in Panton “could not … have intended to suggest that there was some presumption of continuance in planning law in respect of a use which had commenced as a result of a material change of use but which had ceased to be an active use before any accrued planning right had arisen” (paragraph 59).

Sir Christopher Staughton expressed agreement that the appeals should be dismissed, without any additional observations.

I accept Mr Litton's submission that the approach urged on the court by Mr Dove in the present case is similar to the approach adopted by the inspector in Thurrock - an approach that the Court of Appeal held to have been unlawful.

To my mind the judgments in Thurrock make it clear that, in order to gain immunity from enforcement under s.171B(3), it is necessary to show that the use alleged to be in breach of planning control began more than ten years before the date of the enforcement notice and that such use was continuous throughout the ten year period. That is just how the inspector approached the matter in this case. Even if, which I do not accept, he is to be taken to have found that the use in 1984 was the same as the use in 1999 or 2003 and that the breach alleged in the enforcement notice therefore began more than ten years before the date of the notice, his finding that activities on the site fell to such a low ebb that no enforcement action could reasonably have been taken during 1993-1996 meant that the use had not been continuous throughout the ten-year period. That finding was, as he said, fatal to the claim to the ten-year rolling immunity under s.171B(3) whether one works back from 1999 or from 2003.

In addition to looking at the period of ten years immediately preceding the date of the enforcement notice, it is necessary also to consider whether rights have accrued in the past in respect of the use in question (and, if rights have accrued, whether they still remain or have been lost through abandonment or otherwise). This ties in with s.191 of the 1990 Act, concerning certificates of lawful use, which provides in subsection (2)(a) that for the purposes of the Act uses and operations are lawful at any time if “no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason)”. A use may therefore be lawful if it has been carried on continuously in a prior ten year period, such that enforcement action could not then be taken against it.

In the present case the inspector dealt with that aspect of the matter under the heading of “accrued rights”, in accordance with the approach set out in paragraph 9 of his decision. No complaint is made about his analysis of uses prior to 1948 or 1963. As regards the possibility of a subsequent ten-year period of continuous use, I agree that the inspector was wrong to express the point solely in terms of a ten year period up to the time when s.4 of the 1991 Act came into force on 27 July 1992. I can see nothing in Thurrock to justify that particular limitation: the court seems to have envisaged the possibility of established use rights accruing in respect of any ten year period. But the inspector’s error on that point was immaterial, since in practice he did not limit himself to the ten year period up to 27 July 1992. His conclusion at the end of paragraph 13 was not only that the uses alleged in the enforcement notice had not acquired any accrued rights by the time when s.4 of the 1991 Act came into force, but also that no such rights had accrued by the middle of 1993 when the “lull” commenced. Again, his findings were fatal to any claim by the appellants that the uses enforced against were the subject of accrued rights.

Accordingly I take the view that there was no material error in the inspector’s approach. Subject to one immaterial point he asked the right questions and he made findings of fact that provide a complete answer to the appellants’ claim under s.171B(3). The appellants’ case on the third issue is in my view based on a complete misreading of Thurrock.

Findings of fact in respect of the early 1980s

If, as I have held, it is necessary for the appellants to show that the use alleged in the enforcement notice had been carried on continuously for a ten-year period, there are two factual findings that stand in their way. One is the finding about the “lull” in activities between the middle of 1993 and 1996; the other is the finding that uses within the B1, B2 and B8 classes had not commenced on the site by the middle of 1983. Mr Dove accepts that he cannot challenge the first of those findings. He does, however, seek to challenge the second, on grounds of irrationality. It is submitted that the findings in paragraphs 12-13 of the decision are incoherent and that it was perverse to conclude that there was no evidence of the relevant uses on site by mid-1983.

I reject that submission. I see no incoherence in the inspector’s reasoning. In paragraph 11 the inspector describes the evidence of Mr Sanders and Mr Wickham regarding activities on the site during the early 1980s, other than scrap metal, as “very sketchy”. In paragraph 12 he refers to a report dated 6 February 1984 which lists the activities that an enforcement officer found on the site at that time. As the report itself shows, the visit to the site followed a complaint by a councillor on 30 January 1984. Paragraph 12 goes on to say that on the strength of the evidence in that report the appellants’ planning witness asserted that “by an unspecified time in the early to mid 1980s” the site comprised a single planning unit with mixed commercial uses. In paragraph 13 the inspector said that he accepted that as a reasonably accurate summary of the situation at that time. But he went on to look carefully at specific activities and dates. He pointed out that most of Mr Sanders’s activities seemed to have been in breach of a valid enforcement notice as things stood in July 1982, and that there was little or no evidence of other relevant activities on any part of the appeal site until 1984. It followed that those activities had not been carried on for a ten year period by mid-1992 or mid-1993. The process of reasoning was sound.

Beyond that, the best point Mr Dove could make was that the only sensible inference was that the activities found on the site in February 1984 had been there for some time and that it was perverse not to find on the balance of probabilities that they had been there since at least mid-1983. For my part, however, I think it plain that the inspector was reasonably entitled not to draw that conclusion. Although there was one obscure reference to an earlier visit, the February 1984 report gave no indication of how long the activities found on site had been there. The complaint that prompted the visit was a recent one, albeit relating to mobile homes on the site rather than to other activities. Taking the report together with the other “very sketchy” evidence, it was entirely reasonable for the inspector not to be satisfied that the relevant activities had commenced by at least mid-1983.

Removal of fences

The appellants submitted to the inspector that the fences had been on site since prior to 1989 and, as operational development, were subject to a four-year limitation and were therefore immune from enforcement action. Complaint is now made of the inspector’s decision to uphold the requirement to remove the fences. It is said in Mr Dove’s skeleton argument that the inspector made no finding of fact that the fences had been erected after 1989 or that their use was integrally linked to an unlawful use of the site; and that in the absence of such findings it was unlawful for him to uphold the requirement to remove them. In his oral submissions, Mr Dove submitted only that paragraph 40 of the decision fails to explain why the fences should not remain.

Mr Litton’s response for the Secretary of State is that paragraph 3 of the enforcement notice, as corrected by the inspector, identified the breach of planning control as including the erection of security fences and gates to subdivide and enclose the land and facilitate the other alleged unlawful uses of the land; and the requirements in paragraph 5(c) of the notice included “remove from the land the subdividing fences and gates erected since 16 April 1993 in connection with the use of the land for the purposes set out in 3 above”. Furthermore, at paragraph 40 of the decision the inspector found in the context of the ground (f) appeal that the fences served no useful purpose, undermined the site’s open aspect in the Green Belt and should go. Read as a whole and in the light of his considerations on the ground (d) appeal and the requirements of the notice, it is plain that in the inspector’s view the fences had not been erected independently of the unlawful uses and that he was entitled to conclude as he did that they should be removed. Where operational development is part of a material change of use, it is lawful to require its removal when requiring the unlawful use to cease: Murfitt v. Secretary of State for the Environment [1980] JPL 598.

In my judgment Mr Litton’s submissions are well founded. Although the inspector did not cover this very well in paragraph 40 of the decision, he must have accepted the council’s case that the fences were related to the unlawful uses. What the notice was addressing is illustrated by photographs to which Mr Harrison took me, which show the existence, within the site, of subdividing fences erected after 1996. In my view the inspector was fully entitled to reach the conclusion he did.

For the reasons I have given, I have reached the clear view that the appellants’ challenge to the inspector’s decision is unfounded. I have hesitated about whether I should simply refuse permission to appeal. But since I have heard full argument and I reserved my judgment in order to give further consideration to the case, I think that the right way of dealing with it is to grant permission to appeal but to dismiss the substantive appeal.