Fowles v Heathrow Airport Ltd

Not far from the new Terminal 5 at Heathrow Airport lies a site once known as Robb’s Nurseries. It is now owned by Heathrow Airport Ltd (“HAL”). It used to consist of orchards and piggeries; but since the late 1970s it has been used for industrial purposes. Most of the commercial activity on the site is carried on by Mr Timothy Fowles and companies that he controls. He first came to the site as a tenant in 1978. His tenancy was terminated by a notice served under section 25 of the Landlord and Tenant Act 1954 in July 1990. The notice said that the landlord would oppose the grant of a new tenancy. Now, some 18 years later, I have to decide whether that ground of opposition has been established.

That is not the only question. Mr Fowles says that little by little he has expanded the area on which his commercial operations take place. Some of the land on which he carries out his operations does not fall within the part of the site which is expressly let to him. He says that he has enclosed the whole site by erecting new gates across its only access, as a result of which he has acquired title by adverse possession to that land (“the Green Land”). HAL dispute this; but say that if he establishes adverse possession he has not acquired a freehold title, but has acquired only an accretion to his tenancy.

Many issues were raised and debated. However, I will only decide those that are necessary for the disposal of the case. I will, however, make all necessary findings of fact in case this case goes further.

The original nursery and piggeries occupied a site of approximately 7 hectares (17 acres). Its southern boundary is a dual carriageway called Airport Way (A3113). Its western boundary is the River Colne. Round most of the northern and eastern boundaries is a watercourse. There is also a hedge on the northern, western and eastern boundaries. The whole site lies in the Metropolitan Green Belt. Access to the site is via Spout Lane North, which abuts the eastern boundary of the site. From the access at the south-eastern end of the site the visitor proceeds up a curving access way running along the eastern boundary, as far as gates which Mr Fowles has installed. Adjacent to the gates there are some portacabin offices, a welding shop and a workshop. Beyond the gates there is a weighbridge. Proceeding along the access way the visitor next encounters (to the north) a car park and (to the south) a lorry park. Next to the car park (and on the northern side of the access way) there is an area for the storage of miscellaneous machinery (including excavators, diggers, dumper trucks and a fire engine) and next to that there is an area for the storage of large bins (rather like oversize skips). Next to the lorry park (on the southern side of the access way) there is an area for the storage of demolition plant and equipment and next to that there is an area for the storage of skips. The visitor has now turned though 90 degrees since passing through the gates, and the site now opens up. To the right (north) lies a mound of raw materials for processing, shaped roughly like the continent of Africa. The mound is 12 to 15 metres high and the raw materials consist of debris and rubble from demolition sites. At the foot of the mound there are two mobile concrete crushers which crush the concrete into small aggregate. Metal reinforcing bars are extracted by magnets, collected in a bin, and sent elsewhere for recycling. To the left (south) lies a kidney shaped mound of processed materials; while straight ahead (on the western edge of the site) lies a mound of soil for screening.

The north eastern third of the site is rough scrubland. A diagrammatic representation of the site follows.

There are no physical divisions between the various parts of the site; and the mounds which occupy areas F, G and H vary in extent from time to time, according to the volume of material on site.

The whole site is clearly visible from the upper levels of Terminal 5. The mounds themselves would not, I think, be particularly striking from that distance; but the plant used for the various operations is brightly coloured, and does catch the observer’s eye.

Some of Mr Fowles’ activities are carried on by him personally trading under a trading name. Others are carried out by companies that he controls. It is common ground that all these various activities may be treated for the purposes of the Landlord and Tenant Act 1954 as being the activities of Mr Fowles.

Mr Fowles says that he now carries on the following business activities on the site:

A haulage business;

The reception of concrete waste for crushing and the crushing of that waste for recycling of aggregate;

The importation of soil for screening and sale;

A demolition business. Although the demolition itself is carried on at other places, the site itself is used for the storage of plant and machinery;

A bin and skip hire business;

A plant hire business.

HAL dispute Mr Fowles’ account of these businesses, but for the moment I summarise what Mr Fowles says about them.

Mr Fowles began his haulage business with a single lorry that he bought in 1978. Mr Robb, who was originally the freeholder of the site, orally agreed with Mr Fowles that he could use part of the site for parking his lorry. Mr Fowles began by transporting other people’s loads. He did not himself store anything. But in the 1980s he was asked to move a large quantity of concrete and take it away for crushing. He found that the crushing companies would not take the load because it had too much metal reinforcement in it, and so he asked Mr Robb whether he could deposit it on one of the orchards. Mr Robb agreed. Mr Fowles continued to run his haulage business alongside another company which was also using Robbs Nursery. The other company was owned by Mr Brown and traded as Cox’s Transport. Mr Fowles took over the operations of Cox’s Transport and Mr Brown became his transport manager. In his first witness statement Mr Fowles dated this to 1983. In his third witness statement he dated it to 1979/80. Mr Fowles says that it was at this time that he moved into the car parking area in the middle of the site. The area in question is area C on the diagram.

Some administration takes place in the portacabin offices (area M) and vehicles are refuelled in the open area in front of the portacabins. They are repaired and maintained in the workshop and welding shop (areas A and B).

In his third witness statement Mr Fowles placed his involvement with concrete crushing in 1986. In his first witness statement he had placed it in the early to mid 1980’s. In his first witness statement he said:

However, in his third witness statement he said:

He continued by saying that it was Fowles Haulage equipment and staff who process the material and who sometimes, but not always deliver it. The equipment is owned by Fowles Haulage rather than Fowles Crushed Concrete Ltd. The only staff needed to run the crushed concrete business would be himself, a bookkeeper, five men and a fitter. The necessary equipment would be one loading shovel, two excavators and a maximum of five 32 ton lorries. He would also need the workshop and weighbridge.

Mr Fowles says that he has undertaken demolition work since the late 1980’s and that this grew to a meaningful business in the first half of the 1990’s. In 1997 he acquired a demolition contractor called Lowery for the accreditation necessary for him to bid for and win large demolition contracts. The plant necessary for this business is stored, repaired and run from the site. The kind of plant that is used includes portable crushers, excavators with various attachments, bobcat shovels and cherry pickers, dump trucks and so on.

The demolition plant is stored in area D when it is not in use on demolition sites. Some maintenance and repair takes place in the workshop and welding shop (areas A and B).

In his third witness statement Mr Fowles says that he has imported screened and sold soil from the site since 1982. The soil is accepted onto site and sifted through specialised machinery. By a process of removing unwanted elements and mixing the remainder with high quality soil, marketable soil is created and sold. In a statutory declaration dated 12 June 2007 and attached to his second witness statement Mr Fowles says of this business:

The impression created by his first witness statement is that this activity did not begin until Quicks left the site leaving “all their heaps of soil and rubbish on the site”. He continued in paragraph 13 of his first witness statement to say that from 1990 he had moved into the areas of the site previously occupied by Quicks and removed all the waste they had left there. He continued:

The area that Quick Ltd had used for storing soil is area H on the diagram. The areas that Quick Ltd had used for parking and storage is roughly areas J and K. Equipment is maintained and repaired in the workshop and welding shop (areas A and B).

Mr Fowles says that he has occupied a covered yard using it as a workshop for lorry repairs, welding and metalwork both for his businesses and also for repair work that he undertook for third parties when requested. He took possession of another brick workshop and he has occupied that ever since for similar purposes. These buildings, sometimes referred to as buildings 9 and 10, are areas A and B on the diagram. He says that he has also used a covered yard to the south of area B on the diagram. Mr Fowles has given various dates for his takeover of these parts of the site, ranging between 1985 and 1990.

Mr Fowles says that he began the skip and bin hire before 1992. He supplies bins to third parties who fill them and then have them collected for emptying. He uses specialised lorries for the transport of the skips and bins. He now specialises in roll on/roll off bins. This business is run from the site. The bins are stored in area I. Skips are stored in area E.

The plant hire business has been running for 18 years, and is more closely associated with the demolition business than any other. In effect he hires out the demolition equipment when it is not in use for his own demolition contracts. The plant is stored in area D.

As I have said, Mr Robb was originally the freeholder. According to Mr Fowles’ evidence in cross-examination Mr Robb kept a tight grip on the occupiers of the land. As Mr Fowles put it:

On 24 November 1989, Mr Robb sold the land to Malmain Property Developments Limited (“Malmain”). Malmain were registered as proprietors on 7 March 1990. They had bought the land with borrowed money and so a charge in favour of Lloyds Bank plc dated 11 December 1989 was also registered.

On 26 July 1990 Malmain served a notice under section 25 of the Landlord and Tenant Act 1954 terminating Mr Fowles’ tenancy. The property comprised in the tenancy was identified on a plan. Roughly speaking it included areas D, F, G and L. It did not include any other part of the site. Mr Fowles took a point about the validity of the section 25 notice on the ground that the name of the landlord was incorrectly given. So another notice (with the correct name of the landlord) was served on 18 February 1992. It attached the same plan. It is now accepted that the first notice was valid; and the court has so declared.

On 18 November 1992, Malmain went into liquidation; and on 23 August 1993, the liquidator disclaimed the property. Since the property disclaimed was a freehold interest, it is common ground that the property passed to the Crown by escheat.

On 21 April 1995, Lloyds Bank plc, as mortgagee, transferred the site to HAL, who were registered as proprietors on 16 May 1995. HAL remain the freeholder.

Within 10 days HAL had contacted Mr Fowles by letter to make arrangements to visit the site and to meet him. A meeting, attended by Mr Fowles, took place on 23 May, as foreshadowed in a letter from Mr Fowles’ solicitor on 18 May. In his cross-examination Mr Fowles insisted that HAL had bought the land secretly and that he had not found out about it for some time. But when confronted with these letters, he had (inevitably) to accept that his evidence had been inaccurate. This episode made a serious dent in Mr Fowles’ reliability as a witness.

Mr Fowles and the various planning authorities have fought a long campaign about the use of the site. So far it has lasted for nearly twenty years. Despite, so far, losing every battle, Mr Fowles has done spectacularly well. With the aid of an extremely competent and determined professional team he has managed to keep alive a non-conforming use within the Green Belt, despite the best efforts of no less than three planning authorities to stop him. Since his average annual profits between 1992 and 2006 have exceeded £330,000, it is not surprising that he has fought tenaciously to keep going.

On 19 May 1988 Spelthorne Borough Council served an enforcement notice on Mr Fowles and others. It alleged breaches of planning control. The breaches alleged included the laying out and construction of hardstanding, the erection of a workshop; and a material change of use. The change of use alleged was described as follows:

Mr Fowles and others appealed against the notices. A public inquiry lasting 6 days was heard by a planning inspector, Mr Morgan, between 12 and 16 September 1988 and on 3 October 1988. Mr Fowles and the other occupiers were represented by leading and junior counsel and gave evidence. Evidence was given on oath. They argued that enforcement in respect of some buildings, and some uses, was time barred, and that planning permission ought to be granted in any event, even though the land is in the Green Belt. On 20 October 1988, Mr Morgan wrote a long report following the inquiry, recording the evidence and his findings. Having described the site with which he was concerned, which he had inspected, Mr Morgan continued:

Building 11 was in what is now area C; and building 14 was adjacent to what is now the weighbridge in area L. The inspector recorded that the concrete crushing was “rapidly expanding” and that the extent of the workings was readily visible from the surrounding area. Mr Fowles gave evidence to the inspector. The inspector recorded parts of that evidence as follows:

Mr Fowles had six lorries. He did general haulage work but concentrated on moving used concrete material;

He had the use of buildings 11 and 14, the latter being his offices. He had the use of hardstanding 10 for repair purposes on occasion;

A substantial part of his business activity took place on the concrete crushing site at area 21;

He rented buildings and land from Mr Robb on a verbal agreement. There was no specific boundary to the land and his use was mixed up with Quick Ltd.

It will be noted that Mr Fowles said nothing to the inspector about importing and screening soil, which according to his current evidence had begun some six years before the inquiry. In the course of his cross-examination Mr Fowles attempted to distance himself from the evidence that he gave to the inspector, and in particular the extent to which his use of the land was mixed up with its use by other operators, and also the extent of his use of the land. He claimed that Mr Robb was in charge of the appeal, and that in effect he (Mr Fowles) said whatever Mr Robb wanted him to. This claim does not reflect well on the seriousness with which Mr Fowles regards giving evidence. Either he gave untrue evidence to the inspector, or he gave untrue evidence to me. I reject Mr Fowles’ attempt to distance himself from the evidence he gave to the inspector; and find that the evidence he gave then is accurate. But this was another serious blow to Mr Fowles’ reliability as a witness.

Mr Robb also gave evidence to the inspector. He confirmed that building No 11 was used by Mr Fowles and that No 10 was occupied by him and was used by Mr Fowles for occasional repairs. He also said that Mr Fowles paid £50 a week to use building No 11. The inspector found as a fact that building 9 was in use for vehicle body construction and painting by Grace & Co. Mr Brown (who was Mr Fowles’ transport manager) also gave evidence. He said that he had traded as a haulage contractor but had ceased trading in 1983. Mr Fowles took over most of his parking area.

The inspector held that none of the developments complained of in the enforcement notice had acquired immunity from enforcement. He also held that it would be wrong to grant planning permission for those developments, because the site was in the Green Belt and was extremely sensitive. He recommended that the notice be upheld with certain changes. On 15 May 1989, the Secretary of State issued a decision letter largely agreeing with the Inspector. He upheld the notice, with minor amendments. The notice related to a material change in the use of the land to use for a haulage contractors yard, including the parking and storage of trailers and vehicles, the installation, stationing and operation of a concrete crusher and soil hopper, and the storage of materials including soil concrete and excavated materials. It required the discontinuance of that use, and the removal of the portable buildings, trailers, vehicles, concrete crusher, soil hopper and all materials and equipment associated with the use as a haulage contractors’ yard, within 12 months from 15 May 1989.

Mr Fowles failed to comply with the enforcement notice. In 1990, Spelthorne prosecuted Mr Fowles, and another occupier, Quick Ltd, for continuing to use the property in breach of the enforcement notice and they were convicted and fined on 5 October 1990. Mr Fowles still failed to comply with the enforcement notice, despite having been convicted and fined. He was, however, asking the Council for time to wind down his business coupled with promises to clear the site. He neither wound down his business nor cleared the site.

In January 1991 Spelthorne Borough Council resolved to extend time for compliance with the enforcement notice, provided that 25 per cent of the remaining materials on the site were removed each quarter. They also resolved that if more materials were brought onto the site, a prosecution should be undertaken and the material removed within three months. It appears that the Borough Council were led to believe that Mr Fowles would be appointed by the new freeholders of the site, Malmain Properties Ltd, as a sub-contractor, to clear the site. This appointment was never made.

On 20 July 1992 Spelthorne Borough Council began a further prosecution against Mr Fowles. The hearing was set for 19 August but it was adjourned until 2 September 1992. Further adjournments were granted. In the end the prosecution was overtaken by the grant of temporary planning permission. When the case was eventually heard the prosecution offered no evidence, so Mr Fowles was acquitted.

While the second prosecution was pending Mr Fowles carried on business as usual, in breach of the enforcement notice. His planning consultant, Mr Huntley, then negotiated with the Surrey County Council (which was the minerals planning authority) for the grant of a temporary planning permission. The argument that Mr Huntley put forward was that, with the freeholder in liquidation, the only way of getting the site restored was if Mr Fowles was allowed to trade there for a further period, which would provide the funds to enable Mr Fowles to restore the site progressively. Mr Fowles’ obligations would be enforceable by way of planning conditions and a section 106 agreement. Mr Huntley’s proposal stated:

The phasing proposals were spread over five years, followed by a final phase. The proposal also stated:

In other words, all the restoration works were to be carried out within the first five years, leaving a further two years for Mr Fowles to recoup his expenditure. The application for temporary planning permission, supported by that proposal, was made on 18 January 1993. The application related to a site of 5 hectares and described the development in question as:

The application described the existing use of the land as:

No other existing use was stated. The supporting statement included phasing drawings. It also included a plan of the application site. The County Council then negotiated with Mr Huntley, insisting that a bond was provided to secure compliance with the restoration obligations. Mr Huntley proposed a series of annual bonds, backed up by a provision that, in the event of default, operation of the site would cease. He said that the proposal was to clear the site over a five year period, financed by the continuing operation of the concrete crushing business for a seven year period. The prosecution was adjourned while negotiations proceeded.

Following a favourable report from the planning officer, the County Council were persuaded. On 31 March 1994, the County Council granted Mr Fowles a planning permission for the use of the site for the reception, processing and recycling of waste concrete with the restoration of part of the site to grassland and the construction of a landscaped bund for a temporary period of 7 years. The permission was granted subject to conditions.

Condition 1 said that the permission was personal to Mr Fowles. Condition 2 said that the permitted development should be “carried out and completed in all respects strictly in accordance with the submitted documents and plans contained in the application”. Condition 3 required the planning permission and all documents “hereby permitted” to be displayed on site. Condition 4 stated:

Condition 10 required a programme of site investigation and soil testing prior to “the commencement of each of the five phases of restoration as set out on plan ref TF/001”. Plan TF/001 was attached to the planning permission. Condition 12 required the submission within six months of a scheme of restoration, planting and landscaping. All landscaping was to be completed in accordance with the approved scheme.

On the same day Mr Fowles entered into a section 106 agreement. Recital (1) recited that Mr Fowles was the tenant of an area edged in red on Plan A attached to the agreement. The red edging included almost all of the land that Mr Fowles now claims to occupy (with the exception of that part of the site that has been returned to scrubland). To my eye, the area enclosed by the red edging includes areas C, D, E, F, G, H and L in the diagram reproduced above. It does not include areas A, B, I, J, K or M. Recital (9) recited that the parties had agreed to phase the restoration works over five years from the date of grant of the planning permission. Schedule 3 to the agreement set out the works for each phase and the amount of the bond that Mr Fowles was required to provide for each phase. Each phase was to be commenced at yearly intervals, and each phase was to be completed before the next one began. Clause 4.1 (b) (ii) contained a covenant by Mr Fowles to carry out the phased works. Clause 4.2 (b) contained a covenant by Mr Fowles to cease to use the site for the permitted development if at any time (and for so long as) he was in default of his obligations to carry out the phased works.

It is plain, in my judgment, that the reason why Surrey County Council granted the temporary planning permission was that they saw it as the only practicable means of securing the restoration of the site in the medium to long term.

On 2 August 1995, Hillingdon Borough Council, which had taken over as the planning authority, granted three further planning permissions. The first was for details of the restoration scheme, pursuant to the 1994 permission. The second was for a temporary workshop to be demolished by the end of the seven year period. The third was for a buffer zone, site investigation works and dust suppression measures. In the course of reporting to the Council the planning officer said in his report:

Mr Fowles agreed that this was a reference to building B on the diagram reproduced above.

Mr Fowles did carry out some restoration work to part of the land in the north-western corner, which is now scrubland. But he did no other work. He provided no bonds, saying they were too expensive. He claimed that the introduction of landfill tax made the removal of the waste too expensive. In his pleaded case he accepted that he could have complied with his obligations if he had chosen to. In the course of his cross-examination he attempted to resile from this clear acceptance; but unimpressively. This was another demonstrable instance of Mr Fowles’ unreliability as a witness. His annual profits for the five years from 1995 to 1999 were £303,000, £421,000, £239,000, £351,000 and £508,000 respectively. Mr Fowles could plainly have complied with his obligations if he had chosen to. Instead he simply carried on business as usual in disregard of the section 106 agreement into which he had entered, and which was the carrot that persuaded the planning authority to grant the temporary permission in the first place.

When the end of the seven year period was about three months away, on 5 January 2001, Mr Fowles applied for a permanent planning permission, by removing condition 4 to the 1994 permission. This application stated that there was no change of use and described the existing use of the land as:

The site plan attached to the application included the whole site. No other existing use was mentioned. He also applied to retain the workshop. The application described the workshop as used “for the servicing and repair of vehicles associated with the concrete crushing use.” No other use of the workshop was mentioned. Hillingdon Borough Council did not determine the applications within the statutory time limit. So Mr Fowles appealed.

On 7 May 2002, after a 5 day inquiry hearing the inspector, Mr Mundy, dismissed the appeal. Mr Fowles did not challenge that dismissal. Mr Huntley gave evidence at that inquiry. In paragraph 5.23 of his written proof of evidence he said that the workshop was “used for the maintenance of vehicles and plant connected with the concrete crushing use”; and in paragraph 5.24 he said:

The inspector made a number of findings:

The developments constituted “an ugly intrusion into the Green Belt openness and adversely affect its appearance, resulting in significant harm to it” (para 26);

Noise and dust would be matters of concern to neighbours (paras 32 and 33);

Whereas at the time of the grant of the temporary permission in 1994 an important consideration was that the proposal included the removal and restoration of spoil heaps which was only practicable if the use were allowed to continue, that position had changed because HAL was prepared to take on the responsibility for the restoration of the site (paras 36-39);

There was no convincing evidence to support the claim that there was a lack of alternative recycling facilities (paras 44-48);

The conflict with Green Belt policies could not be overcome or mitigated to an acceptable degree (para 49);

There was no justification for a further temporary permission, not least because the objective of restoration of the site through its continued operation failed last time (para 50).

In the meantime, Hillingdon were considering enforcement action. They served questionnaires on Mr Fowles asking for information about the site. Mr Fowles answered the questionnaires in late November 2001. In answer to the question for what purposes was the site used, Mr Fowles replied: “Crushing and reprocessing of waste concrete and haulage yard”. In answer to the question for what purpose the workshop was used, Mr Fowles replied: “Workshop for servicing of vehicles associated with the concrete crushing use”. On 7 December 2001 Hillingdon served five enforcement notices. Mr Fowles appealed against them. He accepted that the continued use of the site for concrete recycling was in breach of condition 4, but argued that the absence of any time limit for the restoration of the site to grassland meant he was not in breach of the requirement for restoration. He said he had not carried out as much restoration as he had envisaged because he could not afford to do so. He now accepts that this was not true.

On 21 January 2003, a public inquiry to consider the appeals against the enforcement notices was opened. The inspector said he thought that there were technical problems with the wording of the conditions of the 1994 permission governing restoration, because they did not specify time scales within which restoration was to be carried out. In those circumstances Hillingdon withdrew the enforcement notices, on the terms of a memorandum of understanding signed by Hillingdon and Mr Fowles. This provided that Mr Fowles would make a planning application, hopefully in conjunction with BAA, with proposals for the future of the site within 3 months. It said that the present intention of Hillingdon was that any further action they might take would be by means of enforcement notices, and that they would not take any further action for 3 months.

On 29 March 2006, Mr Fowles made a second application for permanent planning permission for his concrete crushing activities. It was refused by Hillingdon, and on 14 September 2006, Mr Fowles appealed.

On 21 December 2006, Hillingdon served a breach of condition notice on Mr Fowles, requiring him to cease concrete crushing within 6 months. The notice did not require him to restore the land. There is no right of appeal against a breach of condition notice. Nothing daunted, on 13 March 2007, Mr Fowles applied to the Administrative Court for leave to begin judicial review proceedings against Hillingdon, quashing the breach of condition notice. On 17 May 2007, Sullivan J refused leave on the papers. On 25 May 2007, Mr Fowles renewed his application.

On 13 July 2007, Mr Fowles applied to Hillingdon for a certificate of lawfulness of existing use or development (a “CLEUD”) under section 191 of the Town and Country Planning Act 1990 in respect of six uses of the site which he said were separate to and independent of concrete recycling. The application was supported by a statutory declaration made by Mr Fowles. Hillingdon refused the application on 13 August 2007. On 28 January 2008 Mr Fowles appealed. That appeal remains to be determined.

In the meantime on 25 September 2007, the inspector who had heard the appeal against Hillingdon’s refusal of the second planning application for permanent permission for concrete recycling dismissed the appeal. The inspector’s main conclusions were:

The appeal development did not fulfil any of the objectives for Green Belt land and was therefore inappropriate development (paras 5-6);

The appeal development has a harmful effect on the openness of the Green Belt and the character and appearance of the surrounding area (para 14);

The appeal development was not likely to have a harmful effect on the living conditions of nearby occupiers in relation to noise, disturbance, smoke and fumes (para 19);

The inspector was not convinced that it would not be possible to relocate within the catchment area of the site; and although locational needs and sustainable waste management should be given substantial weight, these matters did not carry sufficient weight to overcome the harm that the inspector found to exist (paras 21-22).

On 5 November 2007, Beatson J heard the renewed application for permission to bring judicial review proceedings in respect of the breach of condition notice served on 21 December 2006. Leave was sought on three grounds. First, that condition 4 was invalid because it was too vague. Beatson J refused leave on that ground. Second, that the breach of condition notice was bad because it required Mr Fowles to cease the use of the land for the activities relating to waste concrete and other waste materials but did not deal with the removal of material, roadways and hard standing or the restoration of the site. It only complained of a breach of part of the condition, not all of it. Beatson J gave leave on that ground, saying it was “not unarguable”. The third was that the council officers did not inform the committee which made the decision to issue the notice of the background properly and therefore the committee did not have in front of it a full picture when it made its decision to issue the notice. Beatson J gave leave on that ground. The application itself remains to be determined.

On 21 November 2007, Mr Fowles issued a claim under section 288 of the Town and Country Planning Act 1990 to quash the inspector’s decision.

Hillingdon are now preparing to authorise fresh enforcement notices requiring the unauthorised use of the site to cease and the workshop to be demolished.

The current position, then, is as follows:

The 1988 enforcement notice remains in force, except to the extent that it has been superseded by the grants of planning permission in 1994;

Mr Fowles accepts that he is in breach of the conditions imposed by the 1994 planning permissions;

Mr Fowles has outstanding applications in the Administrative Court for:

An order quashing the dismissal of his appeal against the refusal of permanent planning permission for concrete crushing and the retention of the workshop and

An order quashing the breach of condition notice;

Mr Fowles has an outstanding appeal against the refusal of a CLEUD;

Hillingdon are preparing to authorise fresh enforcement notices.

If Mr Fowles succeeds in his application to have the breach of condition notice quashed, he will still be in breach of the condition. He is likely to be the subject of a fresh enforcement notice. If he succeeds in quashing the refusal of permanent planning permission, that will not result in the grant of permission. At best, from Mr Fowles’ point of view, it will result in the convening of a fifth planning inquiry. The inquiry into the refusal of the CLEUD is likely to take place in June or July this year, with a decision by the end of the summer.

The sole ground on which HAL rely in opposing Mr Fowles’ application for a new tenancy is that contained in section 30 (1)(c) of the Landlord and Tenant Act 1954. It reads, so far as material:

It is common ground that if Mr Fowles’ use of the holding amounts to the commission of a criminal offence, then the court should not order the grant of a new tenancy to him, either because the court will not order parties to enter into an illegal contract; or because an illegal use is a reason connected with the tenant’s use and management of the holding and is a clear reason why the tenant “ought not” to be granted a new tenancy: Turner & Bell v Searles (Stanford-Le-Hope) Ltd (1977) 33 P & CR 208.

Until 1992 the enforcement of breaches of planning control was limited to the service of enforcement notices (backed up in rare cases by stop notices). Following recommendations in the Carnwath Report on the Enforcement of Planning Control Parliament introduced a power to serve a breach of condition notice. The power is now to be found in section 187A of the Town and Country Planning Act 1990. So far as material it provides:

There is no appeal against a breach of condition notice and thus, unlike the case of an appeal against an enforcement notice, the planning merits of the case are not considered. The assumption underpinning this procedure is that the planning merits will already have been considered on the grant of the conditional planning permission. Again, unlike the case of an enforcement notice, there will always have been the grant of a planning permission. Although an enforcement notice may be served where there has been a failure to comply with a condition, an enforcement notice may also be served where there has been development without any planning permission at all.

Before considering the merits of Mr Fowles’ challenge to the breach of condition notice it is also necessary to refer to some of the provisions of the 1990 Act relating to enforcement notices. A “breach of planning control” is committed when there has been development without planning permission or a failure to comply with any condition or limitation subject to which planning permission has been granted: section 171A. An enforcement notice under section 172 can be served for any breach of planning control. Under s.171B, the time limit for enforcement action in the case of building operations is 4 years from substantial completion of the operations. In the case of a material change of use it is 10 years from the date of breach. There is a right of appeal against an enforcement notice under sections 174-177. The grounds of appeal include the ground that planning permission ought to be granted or conditions or limitations discharged. Where an enforcement notice is appealed, it has no effect pending the determination of the appeal: section 175 (4). Section 173 (11) provides:

HAL says that I should decide for myself whether Mr Fowles’ application to quash the breach of condition notice is a good one. The application turns on questions of law rather than upon any planning judgment. Although Beatson J held that two out of the three grounds were arguable he did not say that they were right; and in the case of the first of the two grounds, part of the reason that persuaded him to allow the claim to go forward was that there was no authority on the point.

The argument for Mr Fowles is that a breach of condition notice must specify the steps which the authority consider ought to be taken in order to secure compliance with the condition. The condition in question required both the cessation of the use for concrete crushing and also the restoration of the land. It was a single composite condition. It is not open to the authority to rewrite the condition by severing the cessation of use from the restoration of the land. To require the use to cease will not bring about the restoration of the land, and hence will not secure compliance with the whole of the condition. Accordingly the breach of condition notice was not one that the local planning authority were entitled to serve. There is a contrast in this respect with section 173 (11) which expressly permits “under-enforcement”.

In my judgment the contrast between section 187A and section 173 (11) is nothing to the point. First, section 173 (11) does not confer on the local planning authority a power to under-enforce. It deals with the consequences of under-enforcement. Second, it does so in the context of an enforcement regime under which one potential ground of appeal is that planning permission ought to be granted in respect of the matters alleged to constitute a breach of planning control. Since the planning merits arise (or can arise) on an appeal against an enforcement notice, it makes sense for the planning merits to be dealt with by a statutory deeming provision if the local planning authority chooses not to enforce against the full breach of planning control. This problem does not arise in the case of a breach of condition notice, which brings into play a summary regime under which the planning merits play no part.

The argument that a local planning authority cannot sever a condition begs the question: what is a condition? If Mr Fowles’ argument is right, it could have been avoided in the present case simply by drafting the planning permission so that the cessation of the use at the end of the seven year period appeared in a paragraph separate from the requirement to restore the land. The substance of the condition(s) would not have been affected. It is also to be noticed that by section 187A (5) a breach of condition notice must specify the steps to be taken to secure compliance with the conditions specified in the notice; not the conditions specified in the planning permission. Moreover, section 187A (5) says that a breach of condition notice must specify the steps which the authority consider ought to be taken, or the activities which the authority consider ought to cease, to secure compliance with the conditions. Even on a literal reading, the local planning authority may do no more than specify a use that must cease. In dismissing the application on the papers, Sullivan J said that he saw no reason why a local planning authority could not under-enforce in the case of a breach of condition. Nor do I. The whole thrust of legislative change in this area over the past forty years or so has been to facilitate under-enforcement. That was one of the avowed purposes of the Carnwath Report which was the genesis of section 187A.

In Jarmain v Secretary of State [2000] 2 PLR 126 Brooke LJ contrasted a “purist” approach and a “pragmatic” approach to questions of enforcement and plainly preferred the pragmatic approach. As he pointed out:

He continued:

Section 187A is part of the same overhaul. In my judgment a pragmatic approach is warranted and Mr Fowles’ argument under this head which is the merest technicality should be rejected. In my judgment the local planning authority is entitled to serve a breach of condition notice in respect of anything upon which the planning permission is conditional. The condition does not have to be contained in a separate paragraph.

The other ground of challenge that Beatson J allowed to go forward was that the decision to issue the breach of condition notice was flawed because the Committee was not informed that the condition was unenforceable. Beatson J does not appear to have allowed the ground to go forward in precisely that way. Rather he seems to have taken the view that the memorandum of understanding made between Hillingdon and Mr Fowles following the withdrawal of the enforcement notices in 2003 might give grounds for challenging the decision to issue the breach of condition notice.

The report to the Committee contained two relevant passages. The first said:

The second said:

It is plain therefore that the Committee were informed about the Inspector’s view that the restoration condition was unenforceable. This ground of challenge is simply and demonstrably wrong on the facts.

The impact of the memorandum of understanding was not in fact one of the grounds of challenge in Mr Fowles’ pleaded case. Nevertheless since Beatson J seems to have been persuaded (although without giving any reasons) that there was something in this point, I ought to consider it. The relevant text reads:

The memorandum was dated 21 January 2003. The breach of condition notice was not issued until 21 December 2006, nearly four years later. The memorandum was carefully drafted. It referred only to the present intention of the authority. It was not a promise that the authority would never take action except by way of enforcement notice. It is not alleged that Mr Fowles understood the memorandum in any other sense or that he relied on it.

In any event planning law is a matter of public interest; and the powers of a local planning authority cannot be fettered by private arrangements between developers and planning authorities: Henry Boot Homes Ltd v Bassetlaw DC [2002] 4 PLR 108.

In my judgment there is no substance in this ground.

I conclude therefore, that the breach of condition notice was valid; and that Mr Fowles’ failure to comply with it means that he is committing and will continue to commit a criminal offence by continuing his concrete crushing operations on the site.

It will be recalled that the enforcement notice served back in 1988 specified the following breaches of planning control:

Since then, Mr Fowles has been granted temporary planning permission for the reception, processing and recycling of waste concrete. The effect of the grant of planning permission following an enforcement notice which has taken effect is that the notice ceases to have effect so far as inconsistent with that permission: Town and Country Planning Act 1990 s. 180 (1). Somewhat surprisingly, the law appears to be that the grant of a temporary planning permission for a use that has previously been the subject of an enforcement notice has the effect of discharging the enforcement notice for all time, in so far as it relates to that use, rather than merely for the period for which the temporary planning permission is in force: Cresswell v Pearson [1997] JPL 860. I should record that HAL reserved the right to challenge the correctness of that decision, should this case goes further, while accepting that I was bound to follow it.

Be that as it may, the temporary planning permission in this case only permitted the use of the land for the use of the site for the reception, processing and recycling of waste concrete. It did not permit use of the land as a haulage contractors’ yard; or for the parking and storage of trailers and vehicles (except to the extent that they were part of the use of the site for the reception, processing and recycling of waste concrete); or for the storage of soil. Use of the land for any of these purposes in breach of the enforcement notice is a criminal offence.

The effect of the enforcement notice is, in my judgment, that Mr Fowles cannot legally carry on his haulage business at the site. His demolition business, in so far as it involves the site at all, consists principally of the storage of vehicles when they are not in use at demolition sites. That, too, is in my judgment prohibited by the enforcement notice. The storage of soil is similarly prohibited by the enforcement notice; and in my judgment that also prohibits Mr Fowles’ business of importing, screening and selling soil.

I conclude therefore that the vast majority of the activities that Mr Fowles carries out on the site are prohibited either by the breach of condition notice or by the enforcement notice and hence constitute the commission of continuing criminal offences.

Section 191 of the Town and Country Planning Act 1990 allows an application to be made to determine whether an existing use is lawful. Section 191 (2) explains what is meant by “lawful”:

In pursuing this application Mr Fowles has to steer a careful course between Scylla and Charybdis. If he were to allege that his current activities did not involve development (because they were encompassed by the 1994 temporary planning permission) then those activities will be liable to enforcement and hence will not be lawful. If, on the other hand, he were to allege that his current activities were not encompassed by the 1994 temporary planning permission, he would need to show both that there was a material change of use that took place ten years ago, and also that the use in question was not in breach of the 1988 enforcement notice.

It is common ground that the correct approach is to compare the existing activities as a matter of fact and degree with those activities permitted by the 1994 planning permission. Mr Huntley appears to have compared Mr Fowles’ current activities with use for agriculture and horticulture. Mr Platford did not support this approach. Having made the comparison, the question is whether any change in the activities is a “material change of use”. A “material” change of use is one which matters in planning terms; a change in the nature or character of the use of the land.

For years Mr Fowles has maintained to the local planning authority that his use of the land is for concrete crushing (sometimes with the addition of haulage). He has not mentioned any other independent use. Now, however, he says that he has been carrying on other independent uses for a decade and that this amounts to a material change of use. In his second witness statement Mr Huntley said:

Not surprisingly Ms Cook asked Mr Huntley about what he had observed, and how that led him to the conclusion that there had been a material change of use. His evidence on that topic is worth quoting:

He then described what he had seen, commenting that there was “a certain degree of retrospection involved here”. He referred to having seen various machines stored on site and said that “it did not register in my conscious mind that they were to do with other uses until relatively recently.” When asked what was the materiality of the change that he had seen he said:

He then referred to the storage of demolition machinery and pointed out that, unlike the concrete crushing machinery it was in actual use on site.

However, apart from a reference to the frequency of vehicle movements (for which there was no other evidence), he could not, to my mind, explain how that use differed materially from a haulage depot. In Westminster City Council v. British Waterways Board [1985] A.C. 676 Lord Bridge of Harwich said:

Just as in that case, where the demolition equipment goes once it leaves the site is of no relevance. The activities carried on on the site itself do not differ in any material way from use as a haulage depot and/or the storage of vehicles. Both use as a haulage depot and use for the storage of vehicles are, of course, prohibited by the 1988 enforcement notice.

Mr Huntley has been intimately concerned with the site and its activities over a period of many years. I find it impossible to see how a material change of use of the site has taken place when the alleged change is imperceptible to an experienced planning consultant. It also appears to have been imperceptible to Mr Fowles himself.

In my judgment there is no realistic prospect that Mr Fowles will succeed in obtaining the CLEUD that he seeks.

Accordingly since I have concluded that the vast majority of Mr Fowles’ activities are illegal and will remain so, I hold that HAL has made out its ground of opposition. Mr Fowles ought not to be granted a new tenancy because of reasons connected with his use and management of the holding.

The legal background to this question lies in the change in the law of adverse possession brought about by the Land Registration Act 2002. The 2002 Act came into force on 13 October 2003. It is not possible to claim title to registered land by adverse possession by relying on adverse possession after that date, unless the procedure set out in Schedule 6 is complied with. However, if a squatter can prove that he was in adverse possession of registered land for the applicable limitation period prior to 13 October 2003, he is entitled to be registered as proprietor under Schedule 12 para 18(1). It follows therefore that in order for his claim to have acquired title by adverse possession to succeed, Mr Fowles must show that he took possession by 13 October 1991.

Mr Fowles was the only witness to give evidence in support of his claim to have acquired title by adverse possession. He produced no contemporaneous documentary evidence in support of his claim; and no corroborative witness. I have already remarked on the unreliability of his evidence. In claims to have acquired title by adverse possession the court must be especially wary of self-serving evidence given by the claimant.

It is common ground that there was an old farm gate controlling access into the yard. The gates currently in place are at the entrance to the yard just to the north of building B where the old farm gate was. Mr Fowles says that at some earlier date he had installed gates further to the south, about half way down the access way. Gates in that position would have enclosed buildings A and B.

By the time of his closing address Mr Platford put Mr Fowles’ case for adverse possession squarely on the erection by Mr Fowles of new gates in place of the old farm gate barring access to the yard and the land beyond. He said that the northern, western and eastern boundaries were defined boundaries, and that by erecting new gates controlling access to the yard (either half way down the access way or at the location of the old farm gate) Mr Fowles had effectively taken possession of the whole site. I agree. The crucial question is: when?

Curiously, for such an important part of his claim to have acquired title by adverse possession, Mr Fowles did not mention gates in either his first or second witness statement. Nor did he mention them in his statutory declaration made on 25 September 2006 in support of his application to HM Land Registry to be registered as proprietor of the Green Land. In his third witness statement he said:

However, he did not date either the installation of the first set of gates or their relocation. In his oral evidence Mr Fowles did attempt to date the gates. However, his evidence was less than satisfactory. Having asserted that he put up the gates in 1989 he immediately retracted that assertion when it was pointed out to him that Mr Robb was still the owner of the site. He then said that he put up the gates in 1990. Mr Huntley’s proposal in support of the application for planning permission made in January 1993 described part of the site as follows:

The plan of the application site shows the control office; and the red site boundary runs to the north of areas A and B. If Mr Fowles had erected gates halfway down the drive before January 1993 it is inconceivable that Mr Huntley would have described and drawn the site in that way. Nor is it likely, as Mr Fowles tried to suggest, that he had already relocated his gates by January 1993; not least because Mr Huntley refers only to “the gate” (singular) whereas Mr Fowles’ gates were plural. In January 1995 Mr Fowles applied for planning permission for the workshop. The accompanying plan showed gates half way down the drive. This is the first reference to them in the documents. The application was considered by the Council with the aid of an officer’s report. The report referred to inspections that the Council had carried out in the summer of 1994. The relevant part of the report reads:

It is, in my judgment, clear from this report that the gates were installed some time after the summer of 1994. It is likely that they were installed as part of the process of concreting the access way. Mr Vaughan, a planning officer with Hillingdon Borough Council, made an inspection of the site in January 1995. Mr Fowles showed him round. He pointed out to Mr Vaughan the work that had been done (including the concreting of the access way) and explained that this had been done during a period of bad weather. It is likely that the period of bad weather referred to was in the autumn or winter of 1994. I find that Mr Fowles installed the gates some time in the autumn or winter of 1994.

In the light of the way in which Mr Platford put Mr Fowles’ case the claim to have acquired title by adverse possession fails on the facts. However, I should record my findings about the dates on which Mr Fowles began to use the various parts of the site (although Mr Platford accepted that mere use of parts of the site by Mr Fowles would not of itself amount to taking possession).

Areas A and B (otherwise buildings 9 and 10) are the workshop and welding shop respectively. As I have said, Mr Fowles has given various dates for his takeover of these buildings, ranging between 1987 and 1990. I am satisfied, in the light of the evidence that was given to Mr Morgan during the 1988 inquiry, that Mr Fowles had not gone into possession of either of these buildings before the summer of 1988. I reject his current evidence to the contrary. On the plan attached to Mr Huntley’s statement in support of the planning application in January 1993 these buildings are not included within the site boundary. I am also satisfied, in the light of the planning officer’s report to Hillingdon recounting the inspections of the summer of 1994 that Mr Fowles had not taken possession of either of the buildings before then. Moreover, in a letter to Hillingdon Borough Council in February 1995 Mr Huntley said (in reference to at least area B):

This is strongly suggestive of the conclusion that Mr Fowles’ use of that building was by permission of SPS, the tenant of the building, and did not amount to taking possession for his own use and benefit. I find, therefore, that Mr Fowles has failed to establish that he took possession of either building earlier than the summer of 1994.

This area is used for lorry parking and was formerly the site of Mr Robb’s piggeries. The piggeries were demolished. In the light of the planning officer’s report to Hillingdon recounting the inspections of the summer of 1994, I am satisfied that these buildings were not demolished before that summer. Mr Fowles did not therefore begin to use this part of the site for lorry parking before then.

It is common ground that area D was part of the area that was let to Mr Fowles by Mr Robb.

This area is used for the storage of skips. Mr Fowles says that he began the skip hire business “before 1992” but otherwise gives no date. I am unable to find that it is more probable than not that Mr Fowles began to use this area before 13 October 1991.

It is common ground that this was part of the area let to Mr Fowles by Mr Robb.

It is common ground that this was part of the area let to Mr Fowles by Mr Robb.

This area was originally used by Quicks for the storage of soil. It was taken over by Mr Fowles after Quicks left the site. So when did Quick’s leave the site? In his first witness statement Mr Fowles said:

“From 1990 I had openly moved into all areas of the site previously occupied by Quicks (including the area containing the heaps that they had left) and treated all of these areas as my own and without any permission from anyone. Malmain knew this but I took no notice of them and did not pay them rent for this area. I occupied all of the area to the north of the site and removed all of the waste they had left there (except the heaps) and reduced that part of the site to the natural ground level which I then used as a parking and storage area. I also began importing high quality soil which I intermixed with the lower quality soil in the large heap at the northwestern end and started selling off the mixed soil. I additionally took up occupation of buildings hitherto occupied by them. In fact I demolished the buildings of theirs to the entrance of the site and built a ramp and weighbridge in place of them. I have occupied these areas as my own since 1990 without any objection from anyone.”

In his oral evidence Mr Fowles said that Quicks left the site shortly after they were fined by the magistrates in October 1990. However, in the statutory declaration attached to his second witness statement Mr Fowles said of the soil screening business:

A further copy of this statutory declaration was exhibited to Mr Fowles’ third witness statement. Although Mr Fowles’ third witness statement made some corrections to dates, he did not correct the statement that Quicks went bust and left the site in 1992. The demolition of Quicks’ building and its replacement with a weighbridge did not take place until after 18 May 1992 (see my findings about area L). This is consistent with a “takeover” of Quicks’ land in 1992. In addition although the plan attached to Mr Huntley’s statement in support of the planning application in January 1993 included this area within the site boundary, the legend described it as “waste deposited by previous occupiers” which does not suggest that Mr Fowles was making active use of that area at that time.

I am not satisfied that Mr Fowles has established that it is more probable than not that he took possession of area H earlier than 1992.

This area is used for the storage of bins which form part of the bin and skip hire business. As in the case of the hire of skips Mr Fowles says that he began the hire business “before 1992” but otherwise gives no date. I am unable to find that it is more probable than not that Mr Fowles began to use this area before 13 October 1991.

This is used for the storage of miscellaneous machinery. I am not in a position to make any finding about the date on which Mr Fowles began to use this area. There was simply no evidence about it.

This area was the area on which Quicks parked their vehicles. Mr Fowles said that he took over this area occupied by Quicks after they left the site. For the same reasons that I gave in relation to area H, I am not satisfied that Mr Fowles has established that it is more probable than not that he took possession of area K earlier than 1992.

This is the weighbridge. The site of the weighbridge was formerly a building used by Quicks. The weighbridge was undoubtedly in place some time before January 1993, because it is referred to in the statement made in support of Mr Fowles’ application for planning permission made in that month. The aerial photograph of the site taken on 26 March 1994 clearly shows the weighbridge. However, the aerial photograph taken on 18 May 1992 equally clearly shows a building on the site now occupied by the weighbridge. I find that the weighbridge was constructed some time between 18 May 1992 and January 1993.

These are the portacabin offices. Mr Fowles gave no evidence about when these were placed in their current location. Back in 1988 Mr Morgan recorded the existence of a portacabin occupied by Mr Fowles; but its location was adjacent to what is now the weighbridge in area L. Mr Huntley’s plan supporting the planning application in January 1993 shows a “control office” in the same location. Equally significantly his plan does not show any portacabins in their current location in area M. I find that the portacabins in area M were not positioned until after January 1993.

Mr Fowles does not appear to conduct any business on the open scrubland. He did restore this part of the site following the grant of planning permission in 1994. He does not give evidence of any act of possession on this part of the site before that. The open scrubland is not readily accessible except from the north or east because it is surrounded by a ditch or watercourse, and also there are the remains of a barbed wire fence along its boundary.

Mr Fowles did not secure access to this area before he erected the new gates. His restoration of the area might have amounted to taking possession of it, but that was not until after the grant of planning permission in 1994 and is too late to support his claim to have acquired title by adverse possession.

Mr Fowles’ application for a new tenancy will be dismissed; and HAL is entitled to an order for possession of the Green Land.