James Turner v Secretary of State for Housing, Communities and Local Government & Anor

Mrs Justice Steyn DBE : Introduction

1. This is an appeal brought pursuant to s.289 of the Town and Country Planning Act 1990 (‘ the 1990 Act ’). The appellant, James Turner, appeals against the decision of the Secretary of State’s appointed Inspector, dated 31 May 2024 (‘the Decision’), made following an inquiry held on 21-22 May 2024, to dismiss his appeal against the decision of Buckinghamshire Council to issue an Enforcement Notice on 20 September 2021 in respect of land known as Gladwins Wood, Pinstone Way, Tatlin End, Denham (‘the Land’).

2. The appeal to the Inspector was based on statutory grounds (b), (e) and (g), with an appeal pursuant to ground (a) being withdrawn one clear working day before the first day of the inquiry: s.174(2) of the 1990 Act . The Inspector dismissed the appeal in respect of ground (e). He allowed the appeal in respect of one of the twelve allegations concerning ground (b), and extended the period for compliance with some of the requirements of the Enforcement Notice under ground (g), but save to that limited extent he dismissed the appeal and upheld the Enforcement Notice (subject to minor variations). In a separate decision, the Inspector refused Mr Turner’s application for an award of costs in respect of ground (e) and made a partial award of costs against him, in favour of Buckinghamshire Council, in respect of ground (a).

3. This appeal is concerned solely with ground (e), by which the appellant contended that “ copies of the enforcement notice were not served as required by ”: section 172 s.174(2) (e) of the 1990 Act . The appellant was granted permission to appeal against the Decision by Lang J on the following two grounds: i) The Inspector erred in law in concluding that the occupiers were duly served with the Enforcement Notice by fixing it to the entrance gate (‘Ground 1’); and ii) The Inspector erred in law in concluding that the occupiers were not substantially prejudiced even if the Enforcement Notice was not duly served on them (‘Ground 2’).

4. In addition, the appellant was given permission in respect of one further ground, by which he challenges the Inspector’s refusal to award him his costs in respect of ground (e) (‘the Costs Ground’). It is common ground that if, and only if, the appellant succeeds on both Grounds 1 and 2, he should also succeed on the Costs Ground. The Facts

5. Gladwins Wood is a registered ancient woodland, protected by a Tree Preservation Order, which sits along the east side of the M25 between Gerrards Cross and Denham, within the green belt. There is “ a considerable history of enforcement action ”. The Inspector said: “The current site is huge and contains dozens if not 100s of containers as well as compounds for plant hire, builder’s yards and many scaffolding companies. It has expanded massively from the very limited lawful use allowed by the 2013 notice which is still in force.”

6. The Land has a single access track. There are locked entrance gates at the northern end of the access track (where it meets Pinstone Way), and at the point where the access track (which forms part of the Land) meets the large, irregularly shaped area which constitutes the rest of the Land. Both sets of gates can be opened by keycode, or by pressing a portable device (which is given to each occupier), or by the owners pressing a button.

7. The Inspector observed that it “ was never clear how many persons or companies occupied the site ”, and as “ a lot of the occupiers do not have a tenancy agreement and Mr Turner, by his own admission, has as little to do with the occupiers as possible, I’m not sure that even the Turners know exactly who and where the occupiers are ”. The occupiers “ are constantly changing ” and so “ it would have been very difficult to pin down exactly who was in occupation on the date the notice was issued ”.

8. The Council issued the Enforcement Notice in 2021 and served it on the appellant and various members of his family who are also involved in the business. There is no dispute that the appellant was duly served and knew about the Enforcement Notice. In addition, the Council sought to effect service on the occupiers by (a) sending copies of the Enforcement Notice to 29 different companies who they believed occupied the site; and (b) attaching a copy of the Enforcement Notice to the entrance gates.

9. After the appeal had been lodged, the Council twice wrote to the appellant asking for an up-to-date list of occupiers, but the appellant’s agent explained that the appellant “ instructed him to ignore those letters ”. When, eventually, the Council issued a Planning Contravention Notice, the appellant responded in April 2024 “ with a list of 90 companies, many of whom seemed to be the same (such as Invest Scaffolding, Invest Construction and Invest Brickwork for example) plus a further 65 who it seems rented containers on the site ”. The Inspector concluded, and there is no dispute on this appeal, that “ those renting containers are not occupiers of the land but more akin to clients of a storage company ”. Of the 90 companies, 57 were listed as being in occupation when the Enforcement Notice was issued but who did not receive a copy of the notice. In 2024, the Council sent letters to as many of those 57 occupiers as they could find. None showed the site as their address, 17 could not be found, two did not exist in 2021 and two had been dissolved before the Enforcement Notice was issued.

10. One occupier, MJL Contracts Ltd, wrote to the Inspector that the firm had been occupying a yard at Gladwins Wood since 1 September 2021, but only learned of the Enforcement Notice on 5 March 2024 when Council officers made an unannounced visit to their yard. The letter stated: “Had we been made aware of the Enforcement Notice when it was served on 20 September 2021 we would have appealed ourselves and looked to put in place measures to ensure business continuity. The yard at Gladwins is critical to our business operations. I am unaware of any other yards we could relocate to.”

11. In addition, a person renting a shipping container wrote to the Inspector that he did not know about the notice.

12. There was some discussion at the hearing before me as to whether the Enforcement Notice was affixed to both sets of entrance gates or one, and if so which one. In my judgment, it is tolerably clear, despite the reference in the singular to “ the entrance gate ” (in para 29), that the evidence before the Inspector was that it was affixed to both sets of gates (as reflected in the plural references in paras 25-26), and that the Inspector accepted the Council’s evidence, observing that he “ had no reason to doubt ” it. In any event, ultimately it was common ground, and I agree, that it is of no consequence whether it was affixed to one set of gates or both, or if only one, which it was affixed to. The relevant legislative provisions

13. Section 172(2) of the 1990 Act provides: “A copy of an enforcement notice shall be served – (a) on the owner and on the occupier of the land to which it relates; and (b) on any other person having an interest in the land, being an interest which, in the opinion of the authority, is materially affected by the notice.” Service of the notice is required to take place not more than 28 days after its date of issue: s.172(3) (a).

14. Section 329(1) provides that any notice or other document required to be served or given under the 1990 Act may be served or given by any of the methods identified in subsections (a)-(d). The key provision for the purposes of this appeal is s.329(2) which provides: “Where the notice or document is required or authorised to be served on any person as having an interest in premises, and the name of that person cannot be ascertained after reasonable inquiry, or where the notice or document is required or authorised to be served on any person as an occupier of premises , the notice or document shall be taken to be duly served if – (a) it is addressed to him either by name or by the description of ‘the owner’ or, as the case may be, ‘the occupier’ of the premises (describing them) and is delivered or sent in the manner specified in subsection (1)(a), (b) or (c); or (b) it is so addressed and is marked in such a manner as may be prescribed for securing that it is plainly identifiable as a communication of importance and – (i) it is sent to the premises in a prepaid registered letter or by the recorded delivery service and is not returned to the authority sending it, or (ii) it is delivered to some person on those premises, or is affixed conspicuously to some object on those premises .” (Emphasis added.)

15. The appellant also places reliance on the contrast with the wording of s.329(3), which provides: “Where – (a) the notice or other document is required to be served on or given to all persons who have interests in or are occupiers of premises comprised in any land, and (b) it appears to the authority required or authorised to serve or give the notice or other document that any part of that land is unoccupied, the notice or document shall be taken to be duly served on all persons having interests in, and on any premises comprised in that part of the land (other than a person who has given to that authority an address for service of the notice or document on him) if it is addressed to ‘the owners and any occupiers’ of that part of the land (describing it) and is affixed conspicuously to some object on the land.”

16. Section 174 provides, so far as material: “(1) A person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him. (2) An appeal may be brought on any of the following grounds – (a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged; (b) that those matters have not occurred; (c) that those matters (if they occurred) do not constitute a breach of planning control; (d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters; (e) that copies of the enforcement notice were not served as required by section 172 ; (f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach; (g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed. … (6) In this section ‘relevant occupier’ means a person who – (a) on the date on which the enforcement notice is issued occupies the land to which the notice relates by virtue of a licence; and (b) continues so to occupy the land when the appeal is brought.”

17. Section 176(5) provides: “Where it would otherwise be a ground for determining an appeal under section 174 in favour of the appellant that a person required to be served with a copy of the enforcement notice was not served, the Secretary of State may disregard that fact if neither the appellant nor that person has been substantially prejudiced by the failure to serve him.” The parties’ submissions on Ground 1

18. The argument raised pursuant to ground (e) was solely about the occupiers of the site. The appellant was duly served and there were no other persons with an interest in the Land. While the Council had served some occupiers by sending them a notice, that was not the position in respect of all occupiers. In respect of those occupiers who were not served by sending them a notice, the Council relied on the affixing of the Enforcement Notice to the entrance gates as due service on them pursuant to s.329(2) of the 1990 Act . The Inspector held that such occupiers were duly served in that manner.

19. The appellant contends that in order to meet the requirements of the second alternative given in s.329(2) (b)(ii) the Council was required to affix the Enforcement Notice to an object on that part of the Land which is the “ premises ” of the occupier. For example, MJL Contracts Ltd has rented yard space within the Land identified in their tenancy agreement as “ Plot W12 ”. The appellant contends that MJL Contracts Ltd were not served with the Enforcement Notice because it was not affixed to an object on Plot W12. It was affixed to an object on the Land rather than “ the premises ” of the occupier.

20. The same argument was raised before the Inspector. He rejected it saying: “I assume he is arguing the Council should have entered the site and fixed a notice outside every compound. Setting aside the fact the appellant would have been unlikely to give permission for the Council to enter the site unless required to do so by law, in my view that is not what is required. The premises are the appeal site which is a single planning unit. Within it are numerous compounds but they do not comprise individual ‘premises’ in terms of the Act . It is quite normal for an enforcement notice to be fixed to the gates of a large site in mixed use so this argument has no weight.”

21. The appellant contends that the Inspector’s reliance upon the planning unit was misplaced as that is a judge-made concept for determining whether a material change of use has taken place. It is immaterial to whether the Enforcement Notice was served. He submits that it is plain that the occupiers’ compounds (or yards), which they rent, are their individual premises. They have no right to occupy the access track or any other part of the Land.

22. In response to the Inspector’s allusion to the difficulties of entering, the appellant asserted that the Council had a right of entry, with or without a warrant, whether or not the appellant gave permission to enter. Further, this is an issue of statutory construction, so what is normally done is of no consequence. That which is normal is not necessarily lawful.

23. The appellant characterises the Secretary of State’s case as being that the notice could be affixed anywhere on any object within the Land, even by the gantry in the south-west corner of the Land, by the pond or on a tree half-way down the access track, and submits that cannot be due service. The purpose of the service provisions is to ensure that those required to be served become aware of the notice. The appellant submits that if it is affixed on a gate a considerable distance from the plot the occupier rents, that purpose will not be effectively served.

24. The Secretary of State submits that the Inspector was entitled as a matter of planning judgment to find that the “ premises ” for the purpose of s.329(2) were the whole appeal site. For the purposes of s.329 , there is no definition in the 1990 Act of the term “ premises ”. What may amount to “ premises ” can vary in different contexts, indicating that planning judgment is required. The planning unit is central in working out the land to which an enforcement notice may relate and so, the Secretary of State submits, the premises for the purposes of service of an enforcement notice under s.329 are likely to be the land to which the enforcement notice relates. However, the Secretary of State contends that there is a need for a measure of flexibility, and it is not necessary to go as far as to say that the premises must mean the whole of the land to which the notice relates.

25. The Secretary of State relies on Gregory and Rawlins v Secretary of State for the Environment (1989) 60 P & CR 413 in support of his submission, while acknowledging that the case is not directly on all fours with this one. I consider that authority below.

26. The Secretary of State contends that applying the approach for which the appellant contends would frustrate the ability of local planning authorities to enforce against a site such as this one, with its complex and ever-changing subdivision into numerous units of occupation, and be contrary to the purpose of the statutory provision. Ground 1: decision

27. The issue in Gregory and Rawlins was whether one enforcement notice issued in respect of a piece of land which is divided into small plots for occupation by caravans was a valid notice , or whether the section required a separate notice for the owner and occupier of each plot of land. The appellants in that case sought to argue that the words “ Under s.87 of the Town and Country Planning Act 1971 (‘ the 1971 Act ’), sub section (5 ) of which was in materially identical terms to s.172(2) of the 1990 Act . owner and occupier of the land ” (in s.87(5) of the 1971 Act ) referred, as a matter of strict interpretation, to the piece of land of which each appellant was the owner or occupier, contending that an enforcement notice could not relate to an area greater than an individual ownership or occupation.

28. The Court of Appeal upheld the decision that one enforcement notice was valid. In doing so, the court held that it was not a matter of pure construction. Butler-Sloss LJ referred to “ the existing long-established practice of issuing and serving enforcement notices on a planning unit ”, holding that the question of what is the proper planning unit is essentially a matter of fact and degree.

29. The issue in this case is not precisely the same. I am concerned with interpretation of a different provision. The issue before me concerns the way in which an enforcement notice in respect of the whole planning unit (here, the Land) was required to be served on those occupying compounds within that unit. I am not concerned with the terms of the enforcement notice. Nevertheless, the context - in which the “ limits of every plot were not clearly defined on the ground ” - and the submissions which were rejected in Gregory and Rawlins are both strikingly resonant of the context and the appellant’s submissions in this case.

30. Section 329(2) has broad application to many notices and documents which are required or authorised to be served under the 1990 Act . The term “ premises ” is not defined and must be considered in context in each case. In my judgment, the permissible method of service should be read consistently with the provision which imposes the service requirement. In the context of service of an enforcement notice, the words “ where the notice … is required … to be served on any person as an occupier of premises ” relate back to, and have to be understood by reference to, the requirement imposed by s.172(2) (a) to serve the enforcement notice “ on the occupier of the land to which it relates ” (“ it ” being the notice).

31. In this enforcement context, at least ordinarily, the term “ occupier of premises ” will have the same meaning as “ occupier of the land to which it relates ” and the premises are the land to which the enforcement notice relates. In my judgment, the Inspector made no error in determining that the “ premises ” in this case were the appeal site.

32. I reject the contention that this interpretation undermines Parliament’s intention of ensuring that it is likely that the notice would come to the attention of the person who is required to be served. The requirement is for the notice to be affixed “ conspicuously ”. Contrary to the appellant’s submissions, that requirement would not have been met if it had been affixed to an object in an inconspicuous corner of the Land where occupiers would have been unlikely to see it, even if it would have been visible to a person who happened to stumble across that object. This hypothetical scenario did not arise. The Enforcement Notice was fixed to the entrance gates across the only means of access to the Land. There was no suggestion that the requirement to be affixed conspicuously was not met.

33. On the other hand, there is force in the Secretary of State’s contention that the appellant’s interpretation would frustrate Parliament’s intention to enable local planning authorities to take enforcement action. In a case such as this, the Council probably would have had to have applied to the magistrates’ court for a warrant to enable them to access the Land, as the appellant’s uncooperative conduct demonstrated that he would not have given them permission to enter for the purposes of serving enforcement notices. That would have taken time and increased the costs of pursuing such action. It was impossible for the Council to know the layout of the compounds on the ground, so there would have been little prospect of the Council being able to serve all of the occupiers it had been unable to serve by other methods by affixing the notice to an object on each of their compounds. It is not a sufficient answer that the Council might have been able to rely on s.176(5).

34. In his written submissions the appellant submitted that s.329(3) is an aid to interpretation of s.329(2) , on the basis that the permission to affix a notice to some object “ on the land ” contrasts with the reference to “ on those premises ” in s.329(2) (b)(ii). Mr Whale did not pursue that submission orally and in my judgment, in light of the analysis above, it is of no assistance.

35. Accordingly, I dismiss the appeal on ground 1. Ground 2

36. In light of my conclusion that the Inspector made no error in concluding that the occupiers were served with the Enforcement Notice, the question whether any occupiers were substantially prejudiced by a failure to serve them does not arise. As Ground 2 is academic, I shall address it shortly. It concerns the Inspector’s conclusion that, if he was wrong in concluding that all the occupiers were served, nonetheless they were not substantially prejudiced by the failure to serve them: s.176(5). The Inspector stated: “MJL Contracts did say they would appeal, but they didn’t provide any representations to the current appeal or explain what they would have appealed about. In fact not one of the very many ‘occupiers’ provided any representations or turned up at the inquiry, despite the fact that, eventually, they all did know about the Inquiry. An appeal was made by the appellant which up until the last minute included a ground (a). The appellant withdrew that without explanation, and the explanation they did give as part of the Council’s costs claim suggested they decided, wisely in my view, they did not stand a chance of success. It is difficult to see what prejudice therefore any of the occupiers suffered.”

37. The appellant contends that this conclusion is unreasonable in the Wednesbury sense. The occupiers were deprived of the ability to appeal against the Enforcement Notice. The Council’s planning witness conceded that one or more of the occupiers might, if they had been served (assuming for this purpose they had not been), have appealed and included grounds different to those pursued by the appellant and/or argued any appeal grounds in a different way. The appellant relies on the decision of another inspector in relation to land in Waltham Forest that occupiers were substantially prejudiced in circumstances where, by the time they knew about the notice it was too late for them to appeal against it, the enforcement action would in most cases lead to the loss of their home, and if they had been served they would likely have appealed, and they would have better understood the enforcement and appeal process and so made more substantial and/or more comprehensive representations than they had made in the appeal.

38. The respondent submits that this case is much closer to Cash v Secretary of State for Communities and Local Government [2012] EWHC 2908 (Admin) in which an appeal against an inspector’s conclusion that the occupiers suffered no substantial prejudice as a consequence of not being served was found (following a rolled up hearing) to be unarguable.

39. In my judgment, the issue is fact-specific and so little reliance can be placed on these decisions. If, as is the case here, an unserved occupier did not know of an enforcement notice until it was too late to file an appeal, and there is evidence that the occupier would have appealed if he had learned of the enforcement notice in time, no doubt that may often lead to the conclusion that the occupier has been substantially prejudiced by the failure of service. But it cannot be said that is the only reasonable conclusion an inspector can reach, regardless of the circumstances.

40. In this case, all of the occupiers knew about the Inquiry yet none chose to attend or to make any representations. Only one occupier complained of non-service: MJL Contracts Ltd. That company could have attended, and made representations in support of the appellant’s appeal, but chose not to do so. Beyond asserting that it would have appealed, MJL Contracts Ltd gave no indication of any basis on which it would have sought to do so, and so the assertion that it was substantively prejudiced was speculative. The appellant, who was the owner of the Land, was professionally represented and brought a broadly based appeal, which until the last minute included an appeal pursuant to s.174(2) (a) of the 1990 Act . It is clear that the Inspector, having considered the submissions in respect of ground (a) prior to its late withdrawal, and having visited the site and held an Inquiry, considered it hopeless. More generally, his view that there was no real prospect that an appeal or submissions by an occupier would have made a substantive difference to the outcome, is readily apparent. That was a fact-specific determination which the Inspector was in an excellent position to make, and I am not persuaded that his determination that there was, in any event, no substantial prejudice to any occupier was unreasonable. Costs Ground

41. As is common ground, it follows that the Costs Ground must also be dismissed. Conclusion

42. Accordingly, the appeal is dismissed on all grounds.