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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 >> Brent v Dowman [2003] EWCA Civ 920 (17 July 2003) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2003/920.html Cite as: [2003] EWCA Civ 920 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WILLESDEN
COUNTY COURT
(Her Honour Judge Bevington)
Strand, London, WC2A 2LL |
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B e f o r e :
and
LORD JUSTICE KEENE
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The London Borough of Brent |
Appellant |
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- and - |
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Morris Marcus Dowman |
Respondent |
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Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr J Litton (instructed by Zeckler & Co, Uxbridge UB8 2AD) for the Respondent
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AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Keene
"unauthorised use of the business premises as repair workshop for cars, and unauthorised storage of tyres and other materials on the roof of the premises."
The roof storage is not relevant to this appeal. The enforcement notice required the unauthorised use to cease and all tyres and other material associated with it to be removed within two months of the notice taking effect on 23 September 1994.
"Between 1967 and 1987 the site was operating as a motor spares shop with tyre fitting and minor repairs. As such, the property has established use rights for such purposes. The current use is however a full blown car repairers and started in June 1993."
"(a) the removal from or replacement from vehicles of clutches, gear boxes or the repair of exhaust mechanisms.
(b) the activities of panel beating, paint spraying or similar repairs to vehicle body work.
(c) carrying out of repairs of car engines apart from minor adjustments to vehicle engines as required following the supply and fitting of parts sold by the Defendant in his shop."
"After 4.00pm 17 December 2001 the Defendant must not use any air compressor or pneumatic tools except for use for the purposes of tyre removal, the fitting and inflation of tyres and the removal and the replacement of nuts and bolts."
The planning authority is dissatisfied with the way in which the order has been worded and challenges it in this appeal.
"(1) Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction they may apply to the court for an injunction whether or not they have exercised or are proposing to exercise any of their other powers under this Part.
(2) On an application under subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach."
That power in the court has been the subject of recent consideration by the House of Lords in South Bucks District Council –v- Porter [2003] UKHL 26 [2003] 3 All ER 1. That decision makes it clear that this is an original jurisdiction vested in the court and not a supervisory one. The court thus has a discretion as to whether to grant an injunction and (I would add) as to the terms of any such injunction which is granted. That is not an unfettered discretion, but one to be exercised on normal principles, in particular whether it is just to grant an injunction and, since the Human Rights Act 1998, whether it is proportionate to do so. Nonetheless, issues of planning policy and judgment are in the exclusive purview of the local planning authority, so that the court should avoid being drawn into a consideration of such matters: see paragraphs 27 to 30 of the speech of Lord Bingham of Cornhill.
"to carry on a composite use of a shop use along with minor repairs and tyre fitting activities."
"On the Minister's own finding, there was a very old established use affecting these premises for the sale of goods by retail. True that use is a limited and restricted one, but nevertheless the planning Acts gave no power to the local planning authority to restrict or remove that use, such as it was. It seems to me that when this matter was before the Minister, the Minister should have recognised that a notice requiring discontinuance of all sale of goods went too far and that he ought to have amended the notice under the powers given to him so as to make it perfectly clear that the notice did not prevent the appellant from using the premises for the sale of goods by retail, provided that such sale was on the scale and in the manner to which he was entitled in 1959, as the Minister himself had found. True that use was a subsidiary one, but nevertheless it should be protected and, in my judgment, this appeal should be allowed to the extent that the decision in question should be sent back to the minister with a direction that he ought to amend the notice so as to safeguard the appellant's established right as found by the Minister to carry on retail trade in the manner and to the extent to which the Minister has found it was carried on in 1959."
"The validity of an enforcement notice shall not, except by way of an appeal under Part VII be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought."
Those grounds include ground (f) in section 174(2), namely that the steps required by the notice to be taken exceed what is necessary to remedy any breach of planning control. It needs to be borne in mind that "validity" in section 285(1) does not mean simply the formal validity of the notice but its enforceability: see the decision of the House of Lords in Davy .v. Spelthorne Borough Council [1984] AC 262. If a landowner wishes to contend that the land has established use rights with which the enforcement notice would interfere, that point must be taken by way of an appeal under section 174. That need not be done in respect of some activity which is ancillary to a primary use not being enforced against, because such activity is seen as part and parcel of that unchallenged primary use. Nor need it be done in respect of a use which has permission under the 1995 Order. But if a landowner wants the issue of what established use rights, as primary uses, are enjoyed by the land, whether as single uses or as part of a mixed use, he must raise them on a section 174 appeal. That makes practical sense, since to conduct such an investigation perhaps many years later when there is an apparent breach of an enforcement notice and a subsequent prosecution would give rise to enormous difficulties.
"The position at this stage of the argument is therefore this. The buildings are on the spoon-shaped parcel of land which is the subject of the enforcement notice. The enforcement notice was not appealed. Even if it had been open to the appellant to appeal against the enforcement notice and submit that because the established use in a new workshop is lawful, therefore the enforcement notice should be amended to exclude the workshop from its operation (the Mansi-type defence) it is now too late to run that argument. The enforcement notice stands. The appellant should comply with it
Thus Mr Lindblom is thrown back to submitting that when the court comes to consider how to exercise the discretion conferred by s. 187B, the court must have regard to the Mansi- type defence that would have been available to it. The established use is lawful, it runs with the land, so he argues, and so the court cannot ignore that which is lawfully being done.
Section 187B undoubtedly gives the court a wide discretion. South Buckingham D.C. .v. Porter is an authority which would permit the planning history of the site to be considered. The relevant feature of the planning history upon which Mr Lindblom relies is, of course, the findings made in the 1995 enforcement notice appeals that there was established use for the engineering operations being conducted from the new workshop. That may be a matter of history. As a feature of the background the court can note it. But it cannot be elevated into a disguised challenge to the validity of the enforcement notice itself. It is too late for that."
"The Defendant Mr Morris Marcus Dowman after 4.00p.m. on 31st January 2002 must not cause or permit the use of the premises known as 572 North Circular Road Neasden as a repair workshop for cars, provided that these premises may be used for fitting to cars goods sold in the shop in a manner ancillary to the use of the premises as a retail shop…"
"Furthermore, while the clear rule is that injunctions should be as precise as possible, it is not an absolute rule; see Halsbury, Vol. 24, paragraph 975. If adequate protection cannot be given in any other way an injunction may be granted in extensive terms. There are issues here of traffic movement, traffic generation and hence of road safety, and as Mr Findlay argued, the concept that a person should be restricted to his permitted use is hardly a novel one. I was referred to Elliot .v. N.E. Railway Co. (1863) 10 H.L. cases 333 and Vere .v. Minter (1914) 49 L.J. 129 as instances of cases in which, admittedly on quite different facts, injunctions had been approved though drafted in fairly extensive terms. Finally, it was argued, the burden would be on the plaintiff in any proceedings for committal to prove that a breach had occurred, and no court would take action unless the breach was clear.
On a full consideration of the arguments and the authorities I have concluded that the plaintiff is entitled to an injunction in the terms sought, and that the granting of such an injunction works no unfairness and imposes on the defendant no burden or obligation that is undue."
"(a) electric powered tyre removing machine, grinding, cutting, welding, drilling, wrenching and cutting equipment and air impact and ratchet tools
(b) any pneumatic power tools
(c) any clutch gear box engine or exhaust mechanism
(d) powered wheel balancing machine."
Lord Justice Pill:
"The criteria that govern the grant by the court of the injunction make clear, in my opinion, that the court must take into account all or any circumstances of the case that bear upon the question whether the grant would be 'just and convenient'. Of particular importance, of course, will be whether or not the local planning authority can establish not only that there is a current or apprehended breach of planning control but also that the ordinary statutory means of enforcement are not likely to be effective in preventing the breach or bringing it to an end. In a case in which the statutory procedure of enforcement notice, prosecution for non-compliance and exercise by the authority of such statutory self-help remedies as are available had not been tried and where there was no sufficient reason to assume that, if tried, they would not succeed in dealing with the breach, the local planning authority would be unlikely to succeed in persuading the court that the grant of an injunction would be just and convenient."
The decision of the House of Lords postdates that of the judge.