Fowles v Heathrow Airport Ltd

A tenant should not receive a new business tenancy where the tenant’s use and management of the holding involves continuing criminal offences. A breach of condition notice may lawfully require only specified activities to cease, even where the relevant planning condition also requires restoration. A temporary planning permission may displace an enforcement notice only to the extent of inconsistency. For a certificate of lawfulness, existing activities must be compared as a matter of fact and degree with the permitted use. A material change requires a change in the nature or character of the use; the destination of vehicles after leaving the site is irrelevant.

Timothy Fowles occupied land owned by Heathrow Airport Ltd. The landlord opposed the grant of a new tenancy under section 30(1)(c) of the Landlord and Tenant Act 1954, relying on breaches connected with Fowles’s use and management of the holding. Fowles’s activities included concrete crushing, haulage, storage of vehicles and materials, soil screening, demolition-related operations and repair work.

He also claimed title to additional land by adverse possession. The central issues were whether his activities were unlawful under planning legislation, whether the planning authorities’ breach of condition notice was valid, whether the alleged uses could qualify for a certificate of lawfulness, and whether he had acquired title to the additional land.

1. The claim for a new tenancy was dismissed. The landlord established the ground under section 30(1)(c) of the Landlord and Tenant Act 1954. The continuing use of the holding involved criminal offences, and the tenant therefore ought not to receive a new tenancy. The approach in Turner & Bell v Searles (Stanford-Le-Hope) Ltd (1977) 33 P & CR 208 was applied.

2. The breach of condition notice was valid. Section 187A of the Town and Country Planning Act 1990 permits a notice to specify the activities which should cease or the steps considered necessary to secure compliance with the conditions specified in the notice. The authority may under-enforce a composite condition. Section 173(11) concerns the consequences of under-enforcement in an enforcement notice and does not restrict the power under section 187A.

3. A pragmatic approach to planning enforcement was appropriate. Technical arguments seeking to prevent partial enforcement were rejected, consistently with Jarmain v Secretary of State [2000] 2 PLR 126. The committee had been properly informed about the planning history. The memorandum of understanding did not prevent later enforcement action, and planning powers could not be fettered by private arrangements, applying Henry Boot Homes Ltd v Bassetlaw DC [2002] 4 PLR 108.

4. The temporary planning permission authorised only reception, processing and recycling of waste concrete. It did not authorise the haulage yard, general storage of vehicles, storage of soil, or the wider demolition-related activities, except insofar as they formed part of the permitted concrete-recycling use. Those activities remained prohibited by the enforcement notice or breach of condition notice. The court followed the binding effect attributed to Cresswell v Pearson [1997] JPL 860 concerning the effect of temporary permission on an earlier enforcement notice.

5. For the certificate of lawfulness, the existing activities had to be compared with the activities permitted by the 1994 planning permission as a matter of fact and degree. A material change of use is a change in the nature or character of the use in planning terms. The mixture of uses remained substantially comparable to a haulage depot and vehicle-storage use. The reasoning in Westminster City Council v British Waterways Board [1985] A.C. 676 was applied. There was no realistic prospect of the certificate being obtained.

6. The adverse-possession claim failed. The claimant had to establish adverse possession of registered land by 13 October 1991. The evidence showed that the gates enclosing the site were installed only in the autumn or winter of 1994, after the relevant date. The claimant therefore acquired no title to the Green Land. Heathrow Airport Ltd was entitled to possession.