North West Estates plc v Buckinghamshire County Council

The Court of Appeal dismissed the appellant's challenge to an order requiring removal of a workshop under an unappealed enforcement notice (Enforcement Notice No. 4). Key legal principles applied were: the protection given by section 285 of the Town and Country Planning Act 1990 to an enforcement notice which has not been quashed; the limited role of the court in s.187B injunction proceedings (the court exercises a discretion but must not use those proceedings to re-open the merits or validity of an enforcement notice); and the principle that an established lawful use is not an absolute defence to enforcement where the notice stands unchallenged.

The court held that arguments that the workshop had become a separate planning unit or that Condition 4 of the 1952 permission should be read down to exclude the new building were matters for challenge by appeal under Part VII and were barred by s.285 once the enforcement notice was left unappealed. The judge was entitled to take into account the predecessor in title's misrepresentations in equity when considering whether to withhold injunctive relief.

The appellant owned land formerly used for sand and gravel extraction. A 1952 planning permission for mineral extraction included Condition 4 requiring removal of plant, buildings and restoration of the land upon completion of working. A substantial detached workshop was built in the mid-1980s and used by Matthews & Brown Engineering Ltd. Various enforcement proceedings followed.

• Procedural history: an enforcement notice issued in December 1995 alleging unlawful change of use was initially quashed on appeal by an inspector, remitted by Mr Justice Moriarty, and later the inspector and deputy judge found established use for engineering purposes prior to December 1985; however the Council then issued Enforcement Notice No. 4 on 9 January 1998 (alleging breach of Condition 4) and that notice stood unchallenged after the appeal was withdrawn.
• Subsequent steps: North West Estates plc acquired the land with notice of Enforcement Notice No. 4. The Council sought mandatory injunctions under s.187B requiring removal of buildings, including the workshop. Jacob J granted injunctions requiring removal of the workshop; the appellant appealed to the Court of Appeal.

The court framed the issues as whether, in s.187B proceedings, the court could decline to enforce an unappealed enforcement notice by recognising an established lawful use or treating the new workshop as outside the scope of Condition 4. The appellant relied on established user/new planning unit principles, and on Mansi-type arguments that a notice can be amended so as not to affect an established use. The respondent relied on s.285 and on the purposive reading of Condition 4 to require removal of all buildings on the parcel.

The Court of Appeal reasoned that s.285 prevents questioning the enforceability of an unappealed notice in subsequent civil proceedings, and that s.187B injunction proceedings do not provide a route for effectively challenging or rewriting the terms of the enforcement notice. The existence of an established use may be a background fact to consider in the exercise of discretion under s.187B, but it cannot operate as an absolute defence where the enforcement notice stands unappealed. The court further held that the predecessor in title's misrepresentations were a relevant equitable consideration: a court may take account of dishonesty by a predecessor when exercising its equitable discretion to grant or withhold injunctions. The appeal was therefore dismissed and the order for removal of the workshop was affirmed.

Appeal dismissed. The Court of Appeal upheld Jacob J's order requiring removal of the workshop under Enforcement Notice No. 4. The court held that an unappealed, unquashed enforcement notice is protected by section 285 of the Town and Country Planning Act 1990, that s.187B injunction proceedings do not permit re-opening the validity or scope of such a notice, and that any established use cannot operate as an absolute defence once the notice stands. The judge was entitled to take into account the predecessor in title's misrepresentations in exercising equitable discretion.

Appeal from the Chancery Division (Jacob J) which had granted injunctions on 31 May 2002. Earlier administrative and judicial stages included an inspector's decision quashing a 1995 enforcement notice (decision dated 27 March 1997), a remitter by Mr Gerald Moriarty Q.C. (19 December 1997) and subsequent inquiry and inspector decision (Mr Wilkinson, 8 November 1999). The Council's appeal against that inspector's decision was dismissed by Mr Robin Purchas Q.C. (reported as Buckinghamshire County Council v Secretary of State for the Environment, Transport and the Regions [2001] 1 PLR 38). Enforcement Notice No. 4 (9 January 1998) was appealed but the appeal was withdrawn and the notice remained unchallenged. This Court of Appeal determination is [2003] EWCA Civ 719.