Walton Ltd v Secretary Of State For The Environment, Transport & Anor

An enforcement notice under the Town and Country Planning Act 1990 is valid if, read as a whole, it enables the recipient to identify the alleged breach and the required remedial steps. It need not identify every possible ancillary activity by reference to an unspecified principal activity. Ancillary activities are ordinarily permitted where they are reasonably incidental to a permitted use, unless expressly excluded by condition. An authority may prohibit all driving in breach of planning control where it has properly concluded that enforcement is expedient. Unobjectionable unauthorised activities should instead be addressed through planning permission or suitable modification of the notice.

The appellant operated a former military airfield subject to several planning permissions, including permission for use as a motor vehicle proving ground. The local planning authority served an enforcement notice requiring cessation of driving for purposes other than vehicle proving and testing or activities authorised by another planning permission. The Secretary of State’s inspector upheld the notice in amended form. An appeal under section 289 of the Town and Country Planning Act 1990 was dismissed by His Honour Judge Rich Q.C. The company appealed to the Court of Appeal, challenging the notice’s compliance with section 173, its treatment of ancillary activities, and the authority’s assessment of expediency under section 172.

Lord Justice Schiemann delivered the judgment. Lord Justices Mummery and Ward agreed. The appeal was dismissed.

1. An enforcement notice must state the matters appearing to the authority to constitute the breach and specify the steps required or activities to cease. The relevant question is whether the notice, read as a whole, enables the person served to know what those matters are. This notice was sufficiently clear to enable the appellant to determine its appeal strategy, including the grounds under section 174(2) and whether to seek planning permission under section 177(1)(a).

2. Driving ancillary to a permitted activity is ordinarily covered by the permission because it is a reasonably incidental part of that activity, unless expressly prohibited by condition. A permission relating to part of a larger site does not authorise activity on the remainder merely because the land is in the same ownership.

3. The expediency requirement in section 172(1) is distinct from the existence of a breach. Although some unauthorised driving might be inoffensive, the authority made no error of law in concluding on these facts that it was expedient to prohibit all driving in breach of planning control.

4. An enforcement notice need not formulate a notional planning application for ancillary driving without identifying the principal activity. The proper course is to identify the activity and apply for planning permission, or seek suitable modification of the notice.

5. The First Protocol argument under the European Convention on Human Rights was premised on success on the other grounds. Since those grounds failed, the court did not consider it necessary to address the argument further.

The order was dismissal of the appeal with costs summarily assessed at £3,400.

• Court of Appeal (Civil Division): In [2000] EWCA Civ 189, the appeal concerning the amended enforcement notice was dismissed with costs.
• High Court, Queen’s Bench Division: His Honour Judge Rich Q.C., sitting as an Additional Judge, dismissed the appeal against the inspector’s decision.