Duguid v Secretary Of State For Environment, Transport & Regions & Anor

An enforcement notice may require the cessation of an unlawful planning use, but it cannot prohibit a use authorised by planning permission, including permitted development rights under the Town and Country Planning (General Permitted Development) Order 1995. The notice is construed purposively and must not create a criminal offence from lawful activity. Where the notice concerns a permanent unlawful use, lawful temporary use may resume after the unlawful use has been discontinued. An express saving clause is unnecessary where the permitted development rights operate within certain statutory limits.

The appellant owned part of a former airfield used for agriculture, car parking, Sunday markets and car boot sales. The local planning authority issued an enforcement notice requiring the cessation of parking and market uses and the removal of associated works. An inspector dismissed the appellant’s appeal and upheld the notice, subject to extended compliance periods. The Queen’s Bench Division dismissed a further appeal on 12 November 1999 but granted permission to appeal.

The central issue was whether the enforcement notice required amendment to preserve the appellant’s right to conduct temporary markets permitted by the Town and Country Planning (General Permitted Development) Order 1995.

1. Appeal dismissed. The enforcement notice was clear and certain and required no amendment. The appellant could use the land for permitted development purposes after discontinuing the permanent market and car boot sale use prohibited by the notice.
2. The court reaffirmed the principle in Mansi v Elstree R.C.D. (1964) 16 P. & C.R. 153 that an enforcement notice must not remove an established lawful use. It followed R v Harfield [1993] 2 P.L.R. 23, whose central principle was that enforcement cannot take away legally permitted rights and that an enforcement notice is construed to retain them.
3. Under sections 172(1)(a), 171A(1)(a), 173 and 174(2)(f) of the Town and Country Planning Act 1990, enforcement powers are confined to breaches of planning control. An authority has no power to require cessation of a lawful use. Use within the GPDO is use with planning permission under sections 58 and 59 of the Act.
4. Section 179 must be construed purposively. Although the notice referred generally to using land for markets and car boot sales, the activity required to cease meant the permanent unlawful activity constituting the breach. The notice could not be construed to make lawful GPDO activity a criminal offence.
5. Section 181 gives an enforcement notice permanent effect after compliance, but only to the extent that the discontinued use contravened Part III. The words “at any time” in section 179 merely clarify that the offence arises after the compliance period; they do not make section 181 otiose.

Lord Justice Judge and Mr Justice Bell agreed with Lord Justice Ward. The appeal was dismissed with costs.

• Queen’s Bench Division: His Hon. Judge Rich Q.C., sitting as a Deputy High Court Judge, dismissed the appeal on 12 November 1999 and granted permission to appeal.
• Court of Appeal (Civil Division): The appeal was dismissed with costs. Lord Justice Ward gave the judgment, with Lord Justice Judge and Mr Justice Bell agreeing.