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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary Of State For Environment & Anor v Thurrock Borough Council [2002] EWCA Civ 226 (27 February 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/226.html Cite as: [2002] 10 EG 157, [2002] JPL 1278, [2002] EWCA Civ 226, [2002] 2 PLR 43 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT (Newman J.)
Strand, London, WC2A 2LL Wednesday 27th February 2002 |
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B e f o r e :
LORD JUSTICE CHADWICK
and
SIR CHRISTOPHER STAUGHTON
____________________
(1) SECRETARY OF STATE FOR THE ENVIRONMENT and (2) TERRY HOLDING |
Appellant |
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- and - |
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THURROCK BOROUGH COUNCIL |
Respondent |
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Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Stephen HOCKMAN Q.C. and Kevin LEIGH (instructed by Jennings Son and Ash Solicitors for the 2nd.Appellant )
John HOBSON Q.C. and Paul BROWN (instructed by Sharpe Pritchard for the Respondent)
____________________
Crown Copyright ©
Lord Justice Schiemann :
The change of use notice : The section 289 appeal
The statutory Background
The Enforcement Notice
3. THE BREACH OF PLANNING CONTROL ALLEGED: without the benefit of planning permission the change use [sic] of the land from domestic purposes and agriculture to use for domestic purposes, [sic] and as an airfield and for the storage of aircraft.4. REASONS FOR ISSUING THIS NOTICE: it appears to the Council that the above breach of planning control has occurred within the last ten years. .... The use of the Land and Buildings as an airfield in excess of the levels identified in the requirements of the Notice would give rise to damage to residential amenity and visual damage to the countryside. ....
5. WHAT YOU ARE REQUIRED TO DO:
(i) There shall be no microlight movements, except in an emergency.(ii) There shall be no helicopter movements, except in an emergency.
(iii) There shall be no training flights.
(iv) Cease all aircraft movement in excess of 4 before 7.00 hours and after 23.00 except in an emergency.
(v) Cease all movements of aircraft … in excess of 50 a day.
(vi) Cease the covered storage of aircraft in excess of 11 aircraft.
(vii) Cease the outside storage of aircraft in excess of 14 aircraft.
(viii) Cease all airshows in excess of one per year.
(ix) Cease all airshow activity before 9.00 hours and after 19.00 hours
The Decision Letter
2. In this appeal the onus is upon the appellant to demonstrate, on the balance of probabilities, that the material change of use from domestic and farming use to an [sic] airfield and aircraft storage started more than ten years before the date of the Notice i.e. on or before 15 July 1989. The decision of the High Court in Panton & Farmer v Secretary of State for the Environment, Transport and the Regions and Vale of White Horse DC [1999] JPL 461 is a forcible reminder that a material change of use is a once-and-for-all event. There is no need to demonstrate that a use has been in continuous existence throughout a ten-year period. Unless there has been a clear-cut change in planning circumstances, such as a grant of planning permission for an alternative use, the introduction of another use incompatible with the original use or an indication of a deliberate intention to abandon the original use then the use will survive throughout ten years. On the strength of this settled law, I reach the conclusion that, if the appellant can demonstrate that the use of the appeal site as an airfield, on a scale which could not be said to be incidental to either residential or farming activities, had commenced at the appeal site before 15 July 1989, then this appeal should succeed.
3. There seems to be little doubt that the appeal site was used as the base for an aircraft advertisement banner-towing operation in the early 1980's which was a significant commercial business in its own right. I reach this conclusion in spite of the fact that it is not mentioned in the somewhat disingenuous completion of the Requisition for Information by the appellant, dated 8 July 1983. In that important legal document he described the purposes for which the premises were used at that time as "agriculture and dwelling". According to the appellant, the banner advertising operation ceased functioning as a viable commercial operation owing to the allegedly devious activities of the Civil Aviation Authority just before the legality of aircraft towing advertising material was confirmed by Statutory Instrument. The Civil Aviation (Aerial Advertising) Regulations 1983 came into operation on 7 February 1984 so that commercial advertising, in the form of banners towed by aircraft operated from this site, probably ceased shortly before that date.
4. I do not regard the flying of banners for one-off occasions, such as family birthdays or the overflying of Orsett Hall with a banner opposed to residential development on the first day of the Tillingham Hall public inquiry on 18 March 1986, as a prolongation of these activities. Nevertheless, the "Sky-Ads" flying advertising banners' enterprise operated from this site for a significant length of time, some two years, in the early 1980's. In my judgment, commercial flying on this scale could not, by any stretch of the imagination, be considered incidental to any residential and/or farm use functioning on the land at that time. I take the view that a material change use of the land to an airstrip with associated storage of aircraft took place when the Sky-ads operation was based at this site i.e. well before 15 July 1989. If there have been no clear-cut changes in planning circumstances between the end of 1983 and the middle of 1989, such as a conflicting grant of planning permission or an indication that the use has at some time been abandoned, then the appeal will be allowed on ground (d).
5. I have no evidence before me that any planning applications have been granted to nullify the unauthorised material change of use described in the preceding paragraph. The evidence, which the Local Planning Authority mustered to argue that the change of use did not occur until late 1989 at the earliest, is to my mind piecemeal in nature. Elements of this evidence include the following; the absence of planes in the 1986 aerial photograph (photo 1); the renaming of the airstrip "Thurrock" and its appearance in writing on the hangar roof; the listing of the airfield in Pooley's flight guides from 1990 onwards (Document 31); a resumption in complaints from members of the public; the addition of a fuel bowser for the sale of aircraft fuel; intensification of aircraft repairs including aircraft sales and leasing, by Mr. Alexander after mid-1989 compared with the previous activities of Mr. Franks; enlargement of hardstandings outside the appellant's private hangar.
6. This evidence was garnered to demonstrate a material change of use to a general aviation airfield some considerable time after I consider that it took place. Its overall effect is to reinforce my conviction that at no time was the airfield use abandoned after the Sky-ads operation ceased. Panton and Farmer makes it clear that once a use had ceased, its resumption would not amount to a material change of use unless that use had been abandoned. The result is that land can have a dormant use even though the unauthorised activities may not be functioning for significant periods of time. For that reason, I do not find the absence of aircraft from the 1986 aerial photograph to be conclusive evidence of abandonment. The renaming of the airfield in the late 1980's and its identification on the hangar appears to have been part of a publicity campaign by the Council to name what is now the Queen Elizabeth II Bridge at the Dartford Crossings, the Thurrock Bridge. Three of the responses to unsolicited letters from the Council to persons mentioned in the 1995 Planning Contravention Notice volunteer that they paid charges to the appellant (albeit nominal) for the keeping of their aircraft at the appeal site prior to 1989. The appearance of the airfield in Pooley's guide from 1990 onwards is to my mind no clear-cut indication of a material change of use at that time. I place greater reliance upon its status as defined by the Civil Aviation Authority's air navigation charts. This remains unchanged, except for the change of name from Orsett to Thurrock, between 1984 and 1999. Overall, I can find no clear evidence of abandonment of the airfield use since the Sky-ads operation ceased in 1983-4. As a consequence, I find, as a matter of fact and degree, that the airfield operation of 1983 is not materially different from the present usage of the site which has therefore continued for more than ten years. In these circumstances, the appeal on ground (d) against Appeal 1 succeeds.
The judgement of Newman J.
i) The Panton case was distinguishable since that was concerned with an accrued right to use land in a particular way and how this could be lost;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.
v) It was for the landowner to show that at any time during the relevant period enforcement action could have been taken;
vi) The inspector had misunderstood Panton and treated the two years of unlawful activity in the early 1980's as though this had resulted then and there in that activity being a lawful use;
vii) This constituted an error of law.
The submissions on behalf of the appellants
The LPA's submissions
Discussion
The building operations notice : The section 288 appeal
The provision within the curtilage of a dwelling house of any building or enclosure, swimming or other pool required for a purpose incidental to the enjoyment of the dwelling house as such ...
8. Planning permission is not required for the provision, within the curtilage of a dwellinghouse, of any building or enclosure, swimming or other pool required for a purpose incidental to the enjoyment of the dwellinghouse as such, or the maintenance, improvement or other alteration of such a building or enclosure, under the terms of Class E of Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995. This is subject to a number of conditions including a requirement that the height of a building with a ridged roof does not exceed 4m and the total area of ground within the curtilage covered by buildings does not exceed 50% of the curtilage's total area. It is generally agreed that none of the conditions of Class E is infringed by the structures the subject of these appeals. Nevertheless, the question remains whether the building is within the curtilage of the dwellinghouse on the appeal site and, if so, whether it is put to a use that is incidental to the enjoyment of a dwellinghouse as such. If the answer to either of these questions is "no" then planning permission is required and both appeals will fail.
14. … the building, the subject of this appeal, is a substantial structure in its own right, while its use for the keeping of the appellant's private aircraft, used for business as well as domestic and pleasure purposes, is not a sporting or recreational activity. In these circumstances I am satisfied that the laying of a hardstanding and concrete base is not development which is appropriate in the Metropolitan Green Belt.
15. It was argued forcibly on the part of the appellant that, if this enforcement notice were upheld and the building were demolished, the appellant could erect a building, within the generally agreed curtilage of the dwellinghouse, of the same size in a more prominent and therefore less desirable location without the need for planning permission. For such a "fall-back" position to be a material consideration, there has to be a realistic prospect of that alternative scenario being put into effect. It is clear from the judgment in New Forest District Council v Secretary of State for the Environment and Shorefield Holidays Ltd. [1996] JPL 935, where a number of earlier authorities were reviewed, that only where there is a real possibility of the fall-back situation being carried out does this become a material consideration to be taken into account by the decision-maker.
16. There is no argument that, within the terms of Class E of Part 1 of Schedule 2 to the Town and Country Planning (General Development Procedure)[sic] Order 1995, a substantial building covering up to 50% of the generous rear garden of the dwellinghouse at the appeal site could be erected to an overall height of four metres with a ridged roof without the need for planning permission. I have little doubt that any such structure would be visually less desirable than the present unauthorised building, as it would not be seen against the back-drop of the original barn when viewed from the east. In normal circumstances I would consider the likelihood of a structure of this type being erected to be remote, but the appellant is clearly a man with considerable financial resources at his disposal. In this particular situation, I have every reason to believe that he would carry out such a threat.
17. … If it is the case that the harm to the green belt is relatively slight, then that situation could itself be part of the very special circumstances, albeit that the appellant has to demonstrate that there are benefits stemming from the development which, in this instance is already in existence.
18. To my mind it can be argued that the harm caused by the unauthorised building is relatively slight. … at the inquiry the appellant was able to offer some benefits to the green belt, which would be a direct consequence of allowing this building to remain. First, he indicated that he was prepared to accept a condition taking away his Class E permitted development rights, so that the LPA would have control over the possible erection of large obtrusive structures or the formation of wide areas of hardsurfacing in the rear garden of the dwelling house. …
20. … I consider Appeal 2 should succeed on ground (a). … planning permission will be granted …
Chadwick LJ:
"Without the benefit of planning permission the change [of] use of the Land from domestic purposes and agriculture to use for domestic purposes, and as an airfield and for the storage of aircraft."
The "Land" was identified in the notice as land at King's Farm, Parkers Farm Road, Orsett.
"that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by [the matters stated in the notice]."
". . . in accordance with long established principles, such an accrued planning right could only be lost in one of three ways, by operation of law. First, by abandonment, secondly by the formation of a new planning unit, and thirdly, by way of a material change of use. . . .
. . . During the hearing I suggested the term "dormant use", as representing a use which had arisen by way of a material change of use, but was now inactive, possibly for a long period of time. Such decline, even cessation, of physical activity could, of course, occur in countless different circumstances. The dormant use would still exist in planning terms, in the sense that the use right had not been lost by operation of law by one of the three events referred to above."
The deputy judge could not, I think, 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.
"An enforcement notice is no less properly served in relation to a dormant use than in relation to one which is being carried on in an active or physical sense."
". . . this would mean that a local planning authority might have to issue an enforcement notice to require the sleeping use to stop: this would surely be a nonsense."
Sir Christopher Staughton:
I also agree