Newbury District Council v Secretary of State for the Environment

[HOUSE O F L O R D S ] .

NEWBURY DISTRICT COUNCIL . . . . RESPONDENTS
AND

SECRETARY OF STATE FOR T H E ENVIRONMENT APPELLANT

B
NEWBURY DISTRICT COUNCIL . . . . RESPONDENTS
AND
INTERNATIONAL SYNTHETIC RUBBER CO. LTD. APPELLANTS
[CONJOINED APPEALS]

1980 Jan. 14, 15, 16, 17, 21, 22; Viscount Dilhorne, Lord Edmund-Davies, C
Feb. 28 Lord Fraser of Tullybelton,
Lord Scarman and Lord Lane

Town Planning — Planning permission — Conditions — A ircraft
hangars used, for storage of vehicles—Planning permission to
use for storage of synthetic rubber—Whether necessary—
Condition attached that buildings to be demolished by specified _
date—Whether valid—Whether hangars used as " repository " "
—Whether grant of planning permission extinguishing existing
use rights—Town and Country Planning Act 1971 (c. 78),
ss. 29 (1), 30 (1) 1—Town and Country Planning (Use Classes)
Order 1950 (S.I. 1950 No. 1131), art. 3.(1), Sch.3
In 1941 land in open country was requisitioned by the
Crown for use as an airfield. Two large hangars were built.
The airfield remained operational until 1947. After 1947 the E
hangars were used by the Ministry of Agriculture to store
food supplies and from 1955 to 1959 they were used for storing
civil defence vehicles by the Home Office. The surrounding
area was restored to agricultural use and in 1959 family
trustees were granted planning permission.to use the hangars
to store fertilisers and corn on condition that they were
removed by the end of 1970. In' 1961 the. trustees bought
the freehold from the Crown and granted a 40-year lease F
back to the Crown at a nominal rent. .
. A rubber company, I.S.R., then applied for permission to
use'the hangars " a s warehouses for the storage of synthetic
1
Town and Country Planning Act 1971, s. 29: "(1) . . . where an application
is made t e a local'planning authority for planning permission, that authority, in
deajing with the application, shall'have regard to the provisions of the development
plan . . . and to any other material considerations, and—(a) . . . may grant planning G
permission, either unconditionally or subject to such conditions as they think fit. . . ."
S. 30: "(1) Without prejudice to the generality of section 29 (1) . . . conditions
may be .imposed on the grant of planning permission thereunder— ...(b) for
requiring the removal of any buildings or works authorised by the permission,
or the discontinuance of any use of land so authorised, at the end of a specified
period. . . . " . - . - . . . > • •
2
Town and Country Planning (Use Classes) Order 1950, art. 3 : "(1) Where a
building or other land is used for a purpose of any class specified in the Schedule
to this Order, the use of such building or other land for any other purpose of the H
same class shall not be deemed for the purposes of the Act to involve development
of the land."
Sch.: " . . . Class X. Use as a wholesale warehouse or repository for any
purpose."

579
A.C. Newbury Council v. Environment Sec. (H.L.(E.))
rubber" and on May 31, 1962, I.S.R. were given planning
A permission for t h e . use of the two. hangars as warehouses
on condition the buildings were removed " at the expiration
of the period ending December. 31, 1972." Having obtained
planning permission, I.S.R. in July 1962 bought the two
hangars and the 40-year lease from the Crown at an auction.
The particulars of sale at the auction referred to the develop­
ment plan and the local planning authority's general policy
to secure removal of war-time buildings. In November 1970
B I.S.R. applied for a 30-year extension of their permission
which was due to expire in December 1972. In January 1971
the extension application was refused as it conflicted with the
development plan in " an area of outstanding natural beauty."
I.S.R. continued to use the hangars after the end of 1972
and did not remove them. In November 1973 the local
authority served two enforcement notices. I.S.R. appealed to
the Secretary of State, who after a public inquiry held that
** the condition for the hangars' removal was invalid under the
Town and Country Planning Act 1971 because it was
extraneous to the proposed use. The Divisional Court dis­
missed the local authority's appeal against the quashing of
the enforcement notices. On appeal, the Court of Appeal
allowed the appeal.
On appeal by the Secretary of State and I.S.R.: —
Q Held, allowing the appeals, (1) that I.S.R. did not require
the grant of planning permission for their intended use of
the hangars in 1962 since the use by the Home Office of the
hangars after 1955 for storing civil defence vehicles was use
as a "repository" within the meaning of Class X of the
Schedule to the Town and Country Planning (Use Classes)
Order 1950 and that therefore their use by I.S.R. in and
after 1962 as a wholesale warehouse for the storage of synthetic
p rubber involved no material change of user but was an existing
use (post, pp. 597A-D, 602C-E, 605A-C, F-G, 614F—615C,
624C-E).
Dicta of Havers J. in Horwitz v. Rowson [I960] 1 W.L.R.
803, 810, and of Lord Denning M.R. in G. Percy Trentham
Ltd. v. Gloucestershire County Council [1966] 1 W.L.R. 506,
512, C.A. disapproved.
(2) That where the grant of planning permission, whether
p it be permission to build or for a change of use, was of such
a character that the implementation of the permission led to
the creation of a new planning unit existing use rights attaching
to the former planning unit were extinguished; but that in the
present case the grant of planning permission in May 1962 did
not create a new planning unit, and that accordingly, I.S.R.
were not precluded from relying on the existing use rights
attaching to the site (post, pp. 5 9 7 E - F , 598H—599c, 603A,
Q 606E—607B, 617G—618D, 626C-F).
Prossor v. Minister of Housing and Local Government
(1968) 67 L.G.R. 109, D.C. and Petticoat Lane Rentals Ltd.
v. Secretary of State for the Environment [1971] 1 W.L.R.
1112, D.C. considered.
(3) That in any event, even if planning permission had been
necessary for the use by I.S.R. of the hangars, in the circum­
stances of the present case the condition for their removal
IT did not fairly or reasonably relate to the permitted develop-
ment and was therefore void (post, pp. 6 0 1 D - E , 6 0 2 F - G , 6 0 9 F - G ,
621F-G, 628G—629B).
Per curiam^ For conditions attached to the grant of a
planning permission to be intra vires and valid the conditions

580
Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
imposed must be for a planning purpose and not for any
ulterior one and they must fairly and reasonably relate to the A
development permitted. Also they must not be so unreasonable
that no reasonable planning authority could have imposed
them (post, pp. 5 9 9 H — 6 0 0 A , 6 0 7 F — 6 0 8 C , 6 1 8 F — 6 1 9 A , 6 2 7 A - E ) .
Pyx Granite Co. Ltd. v. Ministry of Housing and Local
Government [I960] A.C. 260, H.L.(E.) considered.
Decision of the Court of Appeal [1978] 1 W.L.R. 1241;
[1979] 1 All E.R. 243 reversed.
B
The following cases are referred to in their Lordships' opinions:
Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation
[1948] 1 K.B. 223; [1947] 2 All E.R. 680, C.A.
City of London Corporation v. Secretary of State for the Environment
(1971) 23 P. & C.R. 169.
East Barnet Urban District Council v. British Transport Commission ^
[1962] 2 Q.B. 484; [1962] 2 W.L.R. 134; [1961] 3 All E.R. 878,
D.C.
Fawcett Properties Ltd. v. Buckingham County Council [1961] A.C. 636; .
[1960] 3 W.L.R. 831; [1960] 3 All E.R. 503, H.L.(E.).
Gray v. Minister of Housing and Local Government (1969) 68 L.G.R.
15, C.A.
Hall & Co. Ltd. v. Shoreham-by-Sea Urban District Council [1964] 1 _.
u
W.L.R. 240; [1964] 1 All E.R. 1, C.A.
Horwitz v. Rowson [1960] 1 W.L.R. 803; [1960] 2 All E.R. 881.
Kingston-upon-Thdmes Royal London Borough Council v. Secretary of
State for the Environment [1973] 1 W.L.R. 1549; [1974] 1 All E.R.
193, D.C.
Kingsway Investments {Kent) Ltd. v. Kent County Council [1971] A.C.
72; [1970] 2 W.L.R. 397; [1970] 1 All E.R. 70, H.L.(E.).
Leighton and Newman Car Sales Ltd. v. Secretary of State for the ^
Environment (1976) 32 P. & C.R. 1, C.A.
Mixnam's Properties Ltd. v. Chertsey Urban District Council [1965] A.C.
735; [1964] 2 W I . R . 1210; [1964] 2 All E.R. 627, H.L.(E.). ,
Mounsdon v. Weymouth and Melcombe Regis Borough Council [1960]
1 Q.B. 645; [1960] 2 W.L.R. 484; [1960] 1 .All E.R. 538, D.C.
Petticoat Lane Rentals Ltd. v. Secretary of State for the Environment
[1971] 1 W.L.R. 1112; [1971] 2 All E.R. 793, D.C. F
Prossor v. Minister of Housing and Local Government (1968) 67 L.G.R.
109, D C .
Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government
[1958] 1 Q.B. 554; [1958] 2 W.L.R. 371; [1958] 1 All E.R. 625,
C.A.; [1960] A.C. 260; [1959] 3 W.L.R. 346; [1959] 3 All E.R. 1,
H.L.(E.).
Reg. v. Hillingdon London Borough Council, Ex parte Royco Homes G
Ltd. [1974] Q.B. 720; [1974] 2 W.L.R. 805; [1974] 2 All E.R.
643, D.C.
Swallow and Pearson v. Middlesex County Council [1953] 1 W.L.R.
422; [1953] 1 All E.R. 580.
Trentham (G. Percy) Ltd. v. Gloucestershire County Council [1966] 1
W.L.R. 506; [1966] 1 All E.R. 701, C.A.
H
The following additional cases were cited in argument:
Bendles Motors Ltd. v. Bristol Corporation [1963] 1 W.L.R. 247; [1963]
1 All E.R. 578, D.C.

581
A.C. Newbury Council v. Environment Sec. (H.L.(E.))
Brayhead (Ascot) Ltd. v. Berkshire County Council [1964] 2 Q.B. 303;
A
[1964] 2 W.L.R. 507; [1964] 1 All E.R. 149, D.C.
Calcaria Construction Co. (York) Ltd. v. Secretary of State for the
Environment (1974) 72 L.G.R. 398.
Cozens v. Brutus [1973] A.C. 854; [1972] 3 W.L.R. 521; [1972] 2 All
E.R. 1297, H.L.(E.).
Emma Hotels Ltd. v. Secretary of State for the Environment (1979) 250
E.G. 157, D.C.
B Essex Construction Co. Ltd. v. East Ham Borough Council (1963) 61
L.G.R. 452, D.C.
Halsall v. Brizell [1957] Ch. 169; [1957] 2 W.L.R. 123 ; [1957] 1 All E.R.
371.
Howard v. Secretary of State for the Environment [1975] Q.B. 235;
[1974] 2 W.L.R. 459; [1974] 1 All E.R. 644, C.A.
Ives (E.R.) Investment Ltd. v. High [1967] 2 Q.B. 379 ; [1967] 2 W.L.R.
C 789; [1967] 1 All E.R. 504, C.A.
Kruse v. Johnson [1898] 2 Q.B. 91, D.C.
Lissenden v. C.A.V. Bosch Ltd. [1940] A.C. 412; [1940] 1 All E.R. 425,
H.L.(E.).
LTSS Print and Supply Services Ltd. v. Hackney London Borough
Council [1975] 1 W.L.R. 138; [1975] 1 All E.R. 374, D . C ; [1976]
Q.B. 663; [1976] 2 W.L.R. 253; [1976] 1 All E.R. 311, C.A.
D Miller-Mead v. Minister of Housing and Local Government [1962] 2
Q.B. 555; [1962] 3 W.L.R. 654; [1962] 3 All E.R. 99, D.C.
Slattery v. Nay lor (1888) 13 App.Cas. 446, P.C. . . .
Slough Estates Ltd v. Slough Borough Council (No. 2) [1971] A.C. .958;
[1970] 2 W.L.R. 1187; [1970] 2 All E.R. 216, H.L.(E.).
Tessier v. Secretary of State for the Environment (1975) 31 P. & C.R:
161, D.C.
p Town Investments Ltd. v. Department of the Environment [1978]
A.C. 359; [1977] 2 W.L.R. 450; [1977] 1 All E.R. 813, H.L.(E.). .
Western Fish Products Ltd. v. Penwith District Council (1978) 77 L.G.R.
185, C.A.
Young v. Bristol Aeroplane Co. Ltd. [1946] A.C. 163; [1946] 1 All E.R. 98,
H.L.(E.).

p APPEALS from the Court of Appeal.
These were appeals by leave of the House of Lords by the appel­
lants, the Secretary of State for the Environment and the International
Synthetic Rubber Co. Ltd., from an order dated July 14, 1978, of the'
Court of Appeal (Lord Denning M.R., Lawton and Browne L.JJ.)
allowing an appeal by the respondents, the Newbury District Council
from an order dated February 18, 1977, of the Divisional Court of the
G Queen's Bench Division (Lord Widgery C.J., Michael Davies and
Robert Goff J J.). By that order the motion of the respondents that a
decision of the appellant, the Secretary of State for the Environment
dated July 24, 1975, be remitted to the Secretary of State for re-hearing
and determining together with the opinion or direction of the Divisional
Court was dismissed.
TJ The facts are set out in their Lordships' opinions.
David Widdicombe Q.C. and Anthony Anderson for the appellant
company. There are three issues in this appeal: (1) The validity of the

582
Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
condition. (2) Whether planning permission was needed in view of Class X
of the Use Classes Order. (3) What has been termed " blowing hot and
cold."
(1) It is not disputed that if the condition is invalid the whole planning
permission goes. Then the question arises whether an enforcement notice
can be served? The answer is in the negative because of the date when
it was served. The Court of Appeal held that the condition was valid.
In summary, the appellant's contention is that it is invalid because it does B
not fairly and reasonably relate to the permitted development. The con­
dition must relate to the use of the hangars as warehouses but this
condition goes far beyond that.
(2) This raises the question whether there was any need for planning
permission at all. This involves consideration of the Town and Country
Planning (Use Classes) Order 1950, article 3, Schedule, Class X. Class X of c
the Order of 1950 combined Classes X and XI of the Town and Country
Planning (Use Classes) Order 1948. This makes it plain that in the Order
of 1950 " wholesale " in the expression " use as a wholesale warehouse or
repository" is confined to warehouse. "Repository" does not connote
storage of articles exclusively for business purposes.
(3) Where there are existing use rights and planning permission is not
necessary, whether the appellants nevertheless are bound by the maxim: D
qui sentit commodum sentire debet et onus; he who takes the benefit must
also take the burden. It is said that the appellants are precluded from
relying on existing use rights in Class X as they had taken up and im­
plemented the permission granted to them in May 1962. This is a false
point because there is no way of ascertaining which of the two alternatives
the appellants acted under, namely, whether they went by way of relying g
on their existing use rights or under the permission granted to them. In
the case of building operations it is plain whether a person is acting under
a planning permission for the physical evidence can be seen, namely, the
bricks and mortar. Alternatively, where there are existing use rights and
also there is planning permission how can it be said that a person has
taken the benefit of that permission when he does not need it?
The following statutory provisions give the necessary background to
this appeal: the Town and Country Planning Act 1971, sections 22 (1)
(2) (/), 23 (1) (5) (6), 24 (1).(2) (b) (4), 25, 27, 29 (1), 30 (1) (a) (b) (2),
33 (1) (2), 36 (1) (3), 51 (1) (4), 52 (1) (2), 53 (1), 87 (1) (2) (3) (4), 88 (1)
(b) (d) (3), 89 (1), 91, 170 (1) (2), 246, 266 (1) (b) (2) (3) (7), 290.
(1) For a condition imposed pursuant to section 29 (1) the Act of 1971
to be intra vires a local planning authority and valid it must satisfy three G
tests: (i) it must fairly and reasonably relate to a planning purpose; (ii)
it must fairly and reasonably relate to the permitted development, and
(iii) it must not be so unreasonable that no reasonable planning authority
could have imposed it (see Associated Provincial Picture Houses Ltd. v.
Wednesbury Corporation [1948] 1 K.B. 223).
The first and second tests stem from the statute: see section 29 which JJ
is concerned with the determination of applications for planning per­
mission. As to the second test, section 29 is in Part III of the Act relating
to control of development and development is defined in section 22.

583
A.C. Newbury Council v. Environment Sec. (H.L.fE.))
. Section 29 is dealing with control of development in particular cases—the
development which is the subject of the application in question, for example.
The decision is a decision on the application and in this case any conditions
imposed must fairly and reasonably relate to the use of.the land in ques­
tion. Section 30 (1) is helpful as being illustrative of what Parliament
intended to come within section 29 albeit section 30 commences with the
words, "Without prejudice to the generality of section 29 (1) of this Act:
B . . ." It is inherent in section 29 that any condition imposed must
relate to the permitted development. To impose a condition as in the
present case that at the end of the relevant period the buildings must be
removed is to impose a condition which is not connected with the permitted
development; it is not related to user. It is pertinent to contrast the language
of section 29 with that of section 33 (2) where the planning authority can
specify the use for which the building may be used.
The first reported case relating to imposed conditions is Pyx Granite
Co. Ltd. v. Ministry of Housing and Local Government [1958] 1 Q.B.
554, 572, where Lord Denning laid down the proposition that for " condi­
tions, to be valid," they " must fairly and reasonably relate to the per­
mitted development." The actual decision was reversed on appeal [1960]
A.C. 260 on the ground that the development in question was allowed
D under a private Act but, as Lord Reid stated in Mixnam's Properties Ltd.
v. Chertsey Urban District Council [1965] A.C, 735, 751, Lord Denning's
formulation of the law was approved by this House in Fawcett Properties
Ltd. v. Buckingham County Council [1961] A.C. 636.
Reliance is placed on Hall & Co. Ltd. v. Shoreham-by-Sea Urban Dis­
trict Council [1964] 1 W.L.R. 240 in that it confirms the three tests and
p affords a good example of the third test. The language of section 29 (1) would
appear to be in the widest terms but that the power to impose conditions
is subject to limitations is made manifest in the speech of Lord Reid in
Kingsway investments {Kent) Ltd. V. Kent County Council [1971] A.C. 72,
86. The condition imposed in City of London Corporation v. Secretary
of State for the Environment (1971) 23 P. & C.R. 169 satisfied all three
tests. Kingston-upon-Thames Royal London Borough v. Secretary of
F
State for the Environment [1973] 1 W.L.R.: 1549 supports the three tests.
True, the first test is not explicitly mentioned because it was not necessary
so to do but the other two are expressly mentioned at p. 1553, In Reg.
v. Hillingdon London Borough Council, Ex parte Royco Homes Ltd.
[1974] Q.B. 720 the conditions were held invalid because they could not
satisfy the first test.
G (2) The use of the hangars by the Home Office was use as a repository
and so was its previous use for the storage of fertilisers and the appellant's
use of them is as a wholesale warehouse. All these uses are in the same
class—Class X. Therefore there was no change of user involving develop­
ment requiring planning permission. For the general accepted meaning of
"repository," see the Shorter Oxford English Dictionary, 3rd ed. (1944),
TT p. 1707: '" A vessel, receptacle, chamber, etc., in which things are, or may
be placed, deposited, or stored." Havers J.'s definition in Horwitz v.
Rowson [1960] 1 W.L.R. 803, 810, in confining it to a building used for
storage " in the course of a trade or business" was wrong and was un-

584
Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
necessary for the decision in that case. The appellants have no quarrel
with Lord Denning M.R.'s definition in G. Percy Trentham Ltd. y.
Gloucestershire County Council [1966] 1 W.L.R. 506, 512 provided that
the concluding words in brackets are omitted: " A repository means a
place where goods are stored away, to be kept for the sake of keeping
them safe (as part of a storage business)." Calcaria Construction Co.
(York) Ltd. v. Secretary of State for the Environment (1974) 72 L.G.R.
398 does not carry the matter any further. In any event, as Town Invest- B
ments Ltd. v. Department of the Environment [1978] A.C. 359 shows,
that use by a Government department is a business use.
(3) " Blowing hot and cold." This principle stems from the judgment
of Lord Denning M.R. Lawton L.J. held that it was not necessary to
decide this question and Browne L.J. disagreed with the Master of the
Rolls on this issue. Browne L.J.'s formulation of the principle is correct c
in that it can only apply in circumstances such as those that pertain in
Prossor v. Minister of Housing and Local Government (1968) 67 L.G.R.
109.
It is a well established principle of planning law that a person who has
been granted planning permission is not prevented from subsequently
contending that no such permission was necessary by reason of existing
use rights: see Swallow and Pearson v. Middlesex County Council [1953] D
1 W.L.R. 422; Mounsdon v. Weymouth and Melcombe Regis Borough
Council [1960] 1 Q.B. 645; Miller-Mead v. Minister of Housing and Local
Government [1962] 2 Q.B. 555; Essex Construction Co. Ltd. v. East Ham
Borough Council (1963) 61 L.G.R. 452; Pyx Granite Co. Ltd. v. Ministry
of Housing and Local Government [1958] 1 Q.B. 554 and Emma Hotels
Ltd: V. Secretary of State for the Environment (1979) 250 E.G. 157. E
As to the cases relied on .by the respondents, Prossor v. Minister of
Housing and Local Government, 67 L.G.R. 109; Gray v. Minister of
Housing and Local Government (1969) 68 L.G.R. 15 and Petticoat Lane
Rentals Ltd. v. Secretary of State for the Environment [1971] 1 W.L.R.
1112, these are all distinguishable for those cases concern the creation of
a new planning unit in that they involved the erection of new buildings.
[Reference was also made to Western Fish Products Ltd. v. Penwith
District Council (1978) 77 L.G.R. 185.]
John Newey Q.C. and Christopher Symons for the Secretary of State.
The role of the Secretaryof State in this appeal is: (1) to defend what he
understands to be his function in enforcement notice appeals; (2) to
justify his conclusions in the present case and (3) to make submissions in
relation to the suggestion that equitable estoppel should apply in planning G
matters.
(1) There is no controversy in relation to this question. Appeals in
respect of enforcement notices are governed by section 88 of the Town and
Country Planning Act 1971. Before 1960 such appeals lay to magistrates'
courts. The magistrate's heard the evidence and directed themselves on
the law and they reached their conclusions. The Act of 1960 allowed the JJ
Minister to give a decision on the merits. In all other respects the position
of the Secretary of State is the same as that of magistrates before 1960.
Under section 246 appeals lie from the Secretary of State to the High

585
A.C. Newbury Council v. Environment Sec. (H.L.(E.))
. Court but only on points of law. If the Secretary of State is wrong on a.
point of law the High Court pursuant to R.S.C., Ord. 59, will remit the:
case to the Secretary of State to apply the law correctly to the facts.
On the validity of the condition, there is a slightly different approach
from that of the district council. The three tests which must be applied
to determine whether the condition is valid are: (i) The condition must
come within the wording of section 29 (1) of the Act of 1971 as clarified'
B and illustrated by section 30: Kingsway Investments (Kent) Ltd. v. Kent
Couniy Council [1971] A.C. 72. This would exclude conditions for non-
planning purposes. Reg. v. Hillingdon London Borough Council, Ex
parte Royco Homes Ltd. [1974] Q.B. 720 was rightly decided, (ii) The
condition must fairly and reasonably relate to the permitted development.
It is conceded that the removal of a building may reasonably relate to the
Q permitted development, (iii) The condition must be reasonable. In relation
to the second and third tests the role of the Secretary of State is the same
as that of the court on the question of reasonableness. Reliance is placed
on the observations of Lord Denning in Pyx Granite Co. Ltd. v. Ministry
of Housing and Local Government [1958] 1 Q.B. 554, 572; Fawcett Proper­
ties Ltd. v. Buckingham County Council [1961] A.C. 636 and Mixnam's
Properties Ltd. v. Chertsey Urban District Council [1965] A.C. 735!
D Section 33 (2) of the Act of 1971 is a useful provision for the planning
authority and also for a developer. It is possible under this section for
the planning authority to restrict the use of the land. Without this
provision a developer who has permission to erect a building would have
no permission to use the building without making a further application-
for planning permission. But it is a subsection of limited application and'
£ cannot be used by converse reasoning to support the proposition that the
local authority can attach a condition to a change of use permission re­
quiring the demolition of a building.
The Secretary of State considered that in the circumstances of the
present case, where planning permission was sought merely for a change
of use of existing substantial buildings, that a condition requiring the
removal of those buildings after the expiration of a specified number of
* years was not specifically related to the change of use in respect of which
the planning permission was granted and was unreasonable. He therefore
concluded that the condition was invalid. The Secretary of State directed
himself correctly as to the law and having so directed himself he reached
the correct conclusion on the facts. The judgment of the Divisional Court
(1977) 75 L.G.R. 608 is supported and in particular the observation of
G Michael Davies J., at pp. 611-612, that it would be an injustice to the
freeholder if the buildings were removed.
The correct method of ridding land of a non-conforming use is to
proceed under section 51 of the Act of 1971. Parliament intended that this
procedure should be used and the appropriate compensation paid. Com­
pensation may not necessarily be a large amount. It frequently occurs,
JJ as became the position in the present case, that an applicant has only a
leasehold interest in the building concerned and thus a condition requiring
the demolition of that building may well amount to a requirement that the
applicant commits an act of waste as against-his landlord.

586
Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
j As to existing use rights, the Secretary of State, as his decision letter
makes plain, expressly directed himself in the terms of Lord Denning M.R.'s
dictum in G. Percy Trentham Ltd. v. Gloucestershire County Council
[1966] 1 W.L.R. 506, 512. It is conceded that the dictionary definitions
of " repository " are against the Secretary of State. But the word has to
be seen in its context. The three relevant decisions, Horwitz v. Rowson
[1960] 1 W.L.R. 803; G. Percy Trentham Ltd. V. Gloucestershire County
Council [1966] 1 W.L.R. 506 and Calcaria Construction Co. (York) Ltd. V. B
Secretary of State for the Environment, 72 L.G.R. 398, in relation to
" repository" all import the concept of business usage. This is correct.
In the Town and Country Planning (Use Classes) Order 1950 a wholesale
warehouse is in Class X and a repository in Class XI. The 1950 Order
does not define either warehouse or repository and both are placed in the
same class—Class X. A wholesale warehouse obviously involves business c
premises to which goods are delivered and from where goods are des­
patched. According to the dictionary a "repository" is a place where,
for example, archives are kept. But the word " repository " in Class X
of the 1950 Order is coloured by the words " wholesale warehouse." It
.is emphasised that this reference to a wholesale warehouse colours the
description of a repository. " Wholesale warehouse " covers the genus.
On " blowing hot and cold," the Secretary of State is greatly concerned D
at the prospect of the importation of this doctrine into planning law: see
Western Fish Products Ltd. v. Penwith District Council, 77 L.G.R. 185,
200. Planning is concerned with the development of land and planning
permission enures to the benefit of land and all persons for the time being
interested therein: section 33 (1) of the Town and Country Planning Act
1971. E
The introduction of equitable estoppel into the planning system will
result in rights and obligations varying according to the persons concerned
and depending on such factors as to what certain persons knew or did not
know at the relevant time. The Secretary of State fears there would be
much uncertainty and that it would work to the detriment of the ordinary
citizen and would enormously complicate planning administration. It
would raise great difficulties for planning officers and planning committees. F
See the article entitled " Planning Permissions—Blowing Hot and Cold '•'
in [1979] J.P.L. 815. Reliance is placed on the same cases as those relied
upon by Mr. Widdicombe Q.C.
Peter Boydell Q.C, R. M. K. Gray and James May for the district
council. The council accept that in order to uphold the judgment of the
Court of Appeal they must satisfy the House on two issues: (i) that G
there was an error of law on the part of the Secretary of State and (ii) that
the Secretary of State was correct in determining that the company had
no Class'X right.
Having received planning permission on May 31, 1962, at a time when
the company had no interest in the land several courses were open to
them. One was to appeal to the Secretary of State. The company took JJ
with their eyes open this permission for two months later in July 1962
they bought a lease of the land at auction and the permission was referred
;to in the auction particulars. Before the Divisional Court nothing was said

587
A.C. Newbury Council v. Environment Sec. (H.L.(E.))
j. about the position of the freeholder for the condition imposed was in the
freeholder's favour. The position of freeholders was first mentioned in
the judgment of Michael Davies J. in his reserved judgment.
On validity, section 88 of the Act of 1971 concerns appeals against an
enforcement' notice. The Secretary of State should have exercised his
powers under subsections (5) and (6) of section 88. But the Secretary of
State put it out of his power to vary the condition because he had held as
B a matter of law that it was a void condition. The question at issue here is:
what are the functions of the Secretary of State when he is entertaining
an enforcement notice appeal of this nature and considering a condition?
The Secretary of State has.a dual function when he is exercising this appel­
late jurisdiction, namely (a) he has to consider whether the condition is
void in law and if he holds it is not void in law then (b) he goes on to
Q exercise his. functions under section 88 (5) and (6) and considers all the
circumstances of the case and whether he should substitute another condi­
tion. It is vital to keep separate these two functions for the first is a
quasi-judicial function. The second function is the exercise of the highest
planning function in this country. This is the heart of the respondent's
case. In the present case there has been a confusion by the Secretary of
State and the Divisional Court between these two functions.
D The Secretary of State should have held that the condition was not
void in law and then gone on to exercise his powers under section 88 and
made a decision. If the judgment of the Court of Appeal is upheld then
the case should be remitted to the Secretary of State with the direction
that the condition is not void in law and he can then exercise his powers
under section 88. There is no evidence whatsoever that the Secretary of
E State has exercised his powers under subsections (5) and (6).
In determining the validity of a condition there are two tests applic­
able, not three as suggested by the appellants: (i) Is the condition imposed
for a planning purpose? and (ii) is it a condition that no reasonable plan­
ning authority could have imposed (the Wednesbury Corporation principle
[1948] 1 K.B. 223)? Strong reliance is placed on the following example:
p a local authority has a piece of land not required for fifteen years when
it is scheduled to be the site of a public library. The local authority allow
a single-storey building to be erected on the land for use as a warehouse
with a condition that it must be removed after fifteen years. After ten
years there is a change of use to a cash-and-carry store. On the appellant's
argument there could not be imposed a condition for demolition of the
building because of the change of use!
O In Fawcett Properties Ltd. v. Buckingham County Council [1961] A.C.
636, 678, Lord Denning considered that the principles applicable to plan­
ning conditions are analogous to those applicable in the by-law cases. In
those circumstances it follows that the present condition cannot be
attacked because it cannot be said that the present action of the respon­
dents is " fantastic and capricious " : Slattery v. Naylor (1888) 13 App.Cas.
H 446, 452. The principle laid down in Kriisew. Johnson [1898] 2 Q.B. 91
can be applied a fortiori to a planning case, namely, that in determining
the validity of by-laws made by public representative bodies the court
ought to be slow to hold that a by-law is void for unreasonableness.

588
Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
The Wednesbury Corporation case [1948] 1 K.B. 223 shows that the
courts are extremely slow to interfere in by-law cases and it follows that
very rarely should the Secretary of State interfere with a condition im­
posed by a local planning authority.
Cases such as Mixnam's Properties Ltd. v. Chertsey Urban District
Council [1965] A.C. 735; Kingsway Investments (Kent) Ltd. v. Kent
County Council [1971] A.C. 72 and Kingston-upon-Thomes Royal London
Borough Council v. Secretary of State for the Environment [1973] 1 B
W.L.R. 1549 all suggest that there are but two tests. Further, in the
Kingsway Investments case [1971] A.C. 72 all their Lordships' speeches
equated planning conditions with by-laws and referred to Kruse v. John­
son [1898] 2 Q.B. 91 as containing the principle to be applied. As to
the contention that this condition would lead to a loss of rights under
section 23 (5) of the Act of 1971, it is true that requiring the removal of .-,
a building at the end of a planning period deprives the applicant of his
right to resume the former use of the land. The appellants claimed that
the rights in question were those enjoyed between 1955-1959. But that
does not avail them for they were illegal rights since all that the Home
Office had was immunity from proceedings being taken in respect of the
contravention of previous planning control because the Crown never
received planning permission. In the circumstances there was an aban- D
donment of use before 1955 and the observations of Bridge J. in LTSS
Print and Supply Services Ltd. v. Hackney London Borough Council
0975] 1 W.L.R. 138, 142F-G are applicable.
As to waste, if a condition is imposed that the recipient cannot carry
out then he has a right of appeal against it. ' This point would equally
apply to a question of operations on land or buildings. E
It is further said that the condition was void because if the local plan­
ning authority wished to have these hangars removed the correct procedure
was for them to have gone under sections 51 or 52 of the Act of 1971. But
the fact that the matter could have been dealt with under other provisions
is nihil ad rem. It is riot a relevant consideration in law that there were
other methods available to the local planning authority to achieve the p
same object but involving the payment of compensation under section 51.
Moreover, it is wholly unrealistic in the present case to suggest that be­
cause some kind of statutory agreement might have been reached under
section 52 it should have been used when no-one considered it relevant
and all parties considered the condition to be an acceptable way of achiev­
ing the local planning authority's known planning objections. The Court
of Appeal were not satisfied that Berkshire County Council might have G
achieved the objective of the removal of the hangars by proceeding under
section 16 of the Berkshire County Council Act 1953.
As to the meaning of " repository," it is not every use which fits into
a use class. There are many that do not: Tessier v. Secretary of State for
the Environment (1975) 31 P. & C.R. 161. The Home Office user was the
same sui generis user as that in the Tessier case. The Home Office use JJ
was not within Class X of the Order of 1950 at all. The Secretary of
.State was entitled so to hold.
If the ambit of Class X is as wide as the appellant company contend

589
A.C. Newbury Council v. Environment Sec. (H.L.(E.))
. then a museum would come within Class X, but a museum is specifically
included in Class XVII. A burial ground is a good example of a repository
that does not come within the ambit of Class X. This shows that the dic­
tionary definition of " repository " cannot be imported as a definition into
Class X. The word " repository " has been consistently defined by the
courts as being a building where goods are kept or stored in the course
of a trade or business: see, for example, G. Percy Trentham Ltd. v.
B Gloucestershire County Council [1966] 1 W.L.R. 506, 513, per Diplock
L.J. Further, the definition of " repository " contained in the Order of
1958 is irrelevant in construing the Order of 1950: see Calcaria Construc­
tion Co. (York) Ltd. v. Secretary of State for the Environment, 72 L.G.R.
398,401, per O'Connor J.
The Home Office user as storage of civil defence vehicles necessitated
no traffic to the premises save in the event of a national emergency whilst
^ the user by the appellant company necessitated a great deal of traffic to
and from the site. This is what impressed the inspector and the Secretary
of State. If there is some element on which the Secretary of State could
find as he did then the authorities show that the courts will not disturb
his decision without his finding was perverse, in the sense that the evidence
could not support it: Bendles Motors Ltd. v. Bristol Corporation [1963]
D 1 W.L.R. 247. Reliance is placed on the observations of Lord Reid in
Cozens v. Brutus [1973] A.C. 854, 861, 862, that it is a question of fact
what is the meaning in the ordinary use of the English language of, in the
present case, the word " repository." Then it has to be considered in its
context. It is to be noted that not only the Secretary of State but all
members of the courts below found for the definition of " repository " as
contended for by the respondents. " Repository " in the present context
^ has to be construed in a more limited sense than its ordinary natural
meaning. Whether or not a given use falls within a particular use class is
a matter of fact and the Secretary of State on that matter of fact will not
be disturbed by the courts: LTSS Print and Supply Services Ltd. V.
Hackney London Borough Council [1976] Q.B. 663.
The purpose of the Use Classes Order is to relieve the developer from
F seeking planning permission for what would otherwise be a material change
of use and therefore one would expect to find some similarities between
the various uses mentioned in a given class. Thus there is a genus in
Class XI: " Use as a boarding or guest house, a residential club, or a hotel
providing sleeping accommodation." If Class X was concerned with
storage per se it would merely have contained the words " a store for any
purpose." The issue on the present appeal on this question comes down
® to the meaning of the word " repository " as a question of fact. Was the
Secretary of State's decision in the present case untenable or perverse or
so unreasonable that no Secretary of State could have reached it? The
answer is plainly in the negative.
On " blowing hot and cold," the argument can be put in three ways:
(1) as it was adumbrated in Prossor v. Minister of Housing and Local
H Government, 67 L.G.R. 109. (2) As an application of the maxim, he who
enjoys the benefit must suffer the burden. (3) Election.
(1) Hitherto the Prossor principle has only applied to building opera­
tions. It has not yet been extended to where there has been a change of

590
Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
development. This issue can-be put in three alternative ways: (a) Where .
a planning permission is sought, granted and implemented, the planning
history starts afresh, (b) Alternatively, and more narrowly, the planning
history starts afresh where the acceptance and implementation of the
planning permission is inconsistent with reliance on earlier existing use
rights. In the present case there is an assumption that there was a lawful
condition for removal of the hangars. Earlier existing use rights, namely,
as a warehouse or a repository are inconsistent with existing use rights— B
they are inconsistent with the permission of 1962, because once the hangars
had been removed clearly there can be no use of the land as a warehouse.
This is akin to a waiver. This second formulation of the argument is more
restrictive because some of the cases subsequent to the decision in
Prossor v. Minister of Housing and Local Government, 67 L.G.R. 109,
have • queried the width of the language used by Lord Parker C.J. in
Prossor. The key word in both formulations in (a) and (b) is " imple-
mented." (c) This is the narrowest formulation: the planning history
starts afresh as under (b) above except where no permission was ever
required either because the use was in existence on July 1, 1948, or
because there was a deemed, permission under the general development
order. The respondent relies on formulations (a) and (b).
There are five cases on the principle adumbrated in Prossor all of D
which have been decided within the last ten years whilst the cases relied
on to the contrary by the appellants are very much older. Those on which
the respondents rely are: Prossor v. Minister of Housing and Local
Government, 67 L.G.R. 109; Gray v. Minister of Housing and Local
Government, 68 L.G.R. 15; Petticoat Lane Rentals Ltd. v. Secretary
of State for the Environment [1971] 1 W.L.R. 1112; Kingston-upon- g
Thames Royal London Borough Council v. Secretary of State for the
Environment [1973] 1 W.L.R. 1549 and Leighton and Newman Car Sales
Ltd. v. Secretary of State for the Environment (1976) 32 P. & C.R. 1.
True, all the above were cases where some building was permitted by
the planning permission. It is also conceded that the principle has not
yet been extended to an exclusively change of use case but (i) there seems p
no reason in principle why the doctrine of Prossor should not apply to a
change of use case, and (ii) it would make for confusion if one of two
kinds of planning act development was subject to the Prossor principle
whilst the other was not. So many cases are both development by opera­
tion and development by change of use. This could lead 1o complex
situations and problems. What was done in the present case was what
was contemplated by the Court of Appeal in Leighton and Newman Car G
Sales Ltd. v. Secretary of State for the Environment, 32 P. & C.R. 1.
(2) Another way of looking at the quasi-estoppel or election in this
case is to see it as an application to planning law of the principle that a
benefit cannot be taken without associated burdens. The appellant com­
pany, having taken the benefit of the 1962 permission, cannot now allege
that permission was unnecessary in order to avoid the obligations attached JJ
to the permission.. The application of the maxim, qui sen tit commodum
sentire debet et onus to planning cases was discussed in argument in
Brayhead {Ascot) Ltd. v. Berkshire County Council [1964] 2 Q.B. 303,

591
A.C. Newbury Council v. Environment Sec. (H.L.(E.) )
. 308, but whether it could be applied in such.cases was specifically left un­
decided (p. 315). The maxim is merely a way of formulating the quasi-
estoppel or election which can arise hi a .wide variety of circumstances of
which the present case is one example. Examples of its application,
neither of them planning cases, are to be found in Halsall v. Brizell [1957]
Ch. 169 (an obligation to contribute to the maintenance of an easement)
and E. R. Ives Investment Ltd. v. High [1967] 2 Q.B. 379 (another ease-
B ment case), but there is no logical reason why the principle should be
inapplicable to planning cases. There was a discussion of the principle
(in the very different context of the Workmen's Compensation Acts) in
this House in Lissenden v. C.A.V. Bosch Ltd. [1940] A.C. 412 and in
Young v. Bristol Aeroplane Co. Ltd. [1946] A.C. 163. The question of
loss of a planning permission by abandonment (in very different circum-
stances from the present case) was also discussed in Slough Estates v.
C
Slough Borough Council (No. 2) [1971] A.C. 958, but the point was left
specifically undetermined by Lord Pearson at the end of his speech
(p. 971F).
(3) The appellant company's conduct can also be seen as raising a
quasi-estoppel or election; the company could have made in 1962 the
inquiries which it made in 1972 and the question could then have been
D resolved. The choice between two inconsistent courses, which is a pre­
requisite of an election, can be based on implied knowledge of the existence
of those two courses as well as on actual knowledge. The doctrine is set
out in Spencer Bower and Turner, Estoppel by Representation, 3rd ed.
(1977), p. 313.
In 1962 the appellant company by its actions led the planning auth-
E ority to believe that it was relying on the planning permission granted in
1962 to the exclusion of previous planning permission. If it had been
made plain that the company was relying on existing use rights then the
local planning authority would have made a discontinuance order with a
ten year condition.
As to the argument advanced on behalf of the Secretary of State that
p the principle enunciated by Lord Denning M.R. would cause uncertainty,
the contrary was in fact the case, because the 1962 planning permission
was a document certain in its terms and available to any purchaser, whereas
the rights claimed by the company depended on an examination of un­
certain facts said to be established by imprecise evidence, which would
have become inevitably more imprecise by the passing of time.
Newey Q.C. in reply. The effect of section 88 (7) of the Town and
*■* Country Planning Act 1971 is to provide that whenever an appellant has
appealed, for example on ground (b) of section 88 (1), then the Secretary
of State has jurisdiction and the effect is the same as if the appellant has
actually lodged an appeal under section 88 (1) (a). On the Secretary of
State receiving an appeal pursuant to section 88, which includes an appeal
under ground (b), his first function is to decide whether the appeal under
j j ground (b) is valid or not. If he decides that the appeal under ground (b)
should be upheld then he quashes the enforcement notice. The effect
of that is to place the appellant in a position which cannot be challenged.
In the present case if the Secretary of State correctly decided that the con-

592
Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
dition was invalid then the company is in a completely unchallengeable
position. The company has used these hangars for storage since before A
1963. If the Siecretary of State decided that the company had existing use
rights then the enforcement notice must be quashed since the use existed
before 1963 arid again the company is in an unchallengeable position.
As to tests of legal validity, the difference with the respondents appears
to be one of wording rather than of substance. It is said that the Secretary
of State mis-directed himself in law but if one peruses the Inspector's B
report it will be seen that he does not rely on Circular 5-68. It is plain on
the documents that the Secretary of State did not mis-direct himself.
It is not necessary for the House to determine the question of waste.
But as a general proposition it is a question of unreasonableness for the
Secretary of State to consider.
On " blowing hot and cold," in so far as existing use rights are con- Q
cerned:.see section 94 of the Town and Country Planning; Act 1971.
Prossor v. Minister of Housing and Local Government, 61 L.G.R. 109,
and that line of cases were correctly decided where as in those cases there
are building operations. The principle in Prossor has nothing to do with
estoppel but with the principle that planning rights exist in rem. The test
is a practical one: Has a new planning unit come into existence where
building operations are involved? If the physical character of the land D
has been altered substantially so as to create a new planning unit then a
new planning history begins.
A mere permission for change of use does not alter the physical nature
of the land and does not create a new planning history. If the Prossor
principle were extended it would lead to great difficulties: see section 22
(1) of the Act of 1971. A building, engineering or mining operation all g
affect the physical character of the land to create a new planning unit. On
the other hand, a change of use can rarely create a new planning unit in
the Crown's submission. It is conceded, however, that there are circum­
stances where this could happen, for example, where permission is granted
to change the use of residential premises in single occupation to a multi-
occupation use, such as where a house is divided into flats. p
Widdicombe Q.C. in reply. A perusal of the leases in this case shows
that the hangars were not chattels but part of the realty. As to section 88,
the key subsection containing the powers of the Secretary of State is sub­
section (5). Subsections (6) and (7) are machinery to implement the
provisions of subsection (5).
As to the three tests for validity of the condition, the second test that _,
the condition " must fairly and reasonably relate to the permitted develop­
ment " is in the statute. It is an advantage in the administration of plan­
ning law to have three and not two tests. The appellants would refer once
again to section 29 of the Act of 1971 and of the examples contained in
section 30. If the second test is to be treated as separate then the third
test has still a reasonable life and scope of its own. „
As to Kruse V. Johnson [1898] 2 Q.B. 91, the appellants join issue with
the respondents on the question of byelaw cases having any relevance in
planning matters.

593
A.C. Newbury Council v. Environment Sec. (H.L.(E.))
. It is pertinent to observe that if the language of Class X had read:
" wholesale warehouse or store " this would have led to difficulties because
it might have been considered to have included a departmental store and
therefore the word " repository " was used instead of it. As to G. Percy
Trentham Ltd. v. Gloucestershire County Council [1966] 1 W.L.R. 506
the definition adopted there of " repository " appears to have come from
Horwitz v. Rowson [1960] 1 W.L.R. 803. But in that latter case the
B definition of repository there given was not necessary to the decision. It
is further to be noted that in the Use Classes Order 1950 the draughtsman
uses the word " business " when he deems it necessary so to do.
The argument put forward on behalf of the Secretary of State in rela­
tion to the Prossor principle is adopted. Many of the earlier cases such as,
for example, Mounsdon v. Weymouth and Melcombe Regis Borough
r Council [1960] 1 Q.B. 645 were decided by Lord Parker C.J. who decided
C
Prossor, 67 L.G.R. 109.
Boydell Q.C. in reply. On an examination of those cases in which Lord
Parker was party to the decision it will be seen that in none of them was
planning permission acted upon, which is the Prossor principle.
Their Lordships took time for consideration.
D
February 28. VISCOUNT DILHORNE. My Lords, on May 7, 1962,
the appellants, the International Synthetic Rubber Co. Ltd. (hereafter
referred to as " I.S.R.") sent to the Hungerford Rural District Council
who were then acting for the Berkshire County Council, then the local
planning authority, an application dated May 3, 1962, for permission to
£ use two hangars on what had been Membury Airfield as warehouses for
the storage of synthetic rubber. They said that they were prospective
buyers of the hangars from the Air Ministry and that as considerable
capital outlay would be involved, " it would be appreciated if the plan­
ning authorities could see their way to giving their permission to cover
as long a period forward as is possible."
I.S.R. were then occupying one of the hangars under a lease granted
F to them by the Secretary of State for Air for nine years commencing
on May 8, 1961.
On May 31, 1962, the Hungerford Rural District Council gave that
company permission to use the two hangars as warehouses subject to
two conditions, one being that " The buildings shall be removed at the
expiration of the period ending December 31, 1972."
® The written statement of the Berkshire County Council which
accompanied the county map in February 1960, said that:
" Problems have arisen from time to time regarding the use of
buildings on sites relinquished by government departments. These
are often suitable in design for industrial or storage use, although
„ frequently their location in open countryside renders them unsuitable
in location as permanent centres of employment, and detrimental to
landscape amenities. The local planning authority will normally
only permit permanent changes of use in localities appropriate in the

594
Viscount Dilhorne Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
light of their general policy objectives for the distribution of employ­
ment; otherwise they will seek to secure the removal of the buildings.
Temporary periods, of changed use may be permitted in particular
circumstances."
On July 26, 1962, I.S.R. bought the two hangars and the Secretary
of State's leasehold interest in the land under a lease for 40 years which
commenced on November 30, 1961.
I.S.R. did not, as they could have done, appeal against the imposition
of the condition that the hangars should be removed. On November 4,
1969, they applied for planning permission to make an extension to an
existing office on the airfield. They were given. permission to do so
subject to the condition that at the expiration of the period ending
December 31, 1972, the building should be removed.
On November 5, 1970, I.S.R. applied for an extension of the per- C
mission to use the hangars as warehouses for 30 years. On January 4,
1971, this application was refused and on June 25, 1971, I.S.R. appealed
against this refusal.
The two hangars and the extension to the office were not removed at
the expiration of the period ending December 31, 1972, and on November
12, 1973, the hangars and extension still not having been removed, the n
Hungerford Rural District Council served two enforcement notices on
I.S.R. requiring their removal within three months.
I.S.R. appealed against these notices to the Secretary of State for the
Environment. Although the case in respect of the enforcement notice
relating to the office extension differed in some respects from that relating
to the notice applying to the hangars, it was agreed that the result of the
appeal as to the notice in respect of the office extension should depend E
on and follow the result of the appeal as to the notice about the hangars.
No separate argument was therefore advanced in connection with the
office extension.
These appeals were brought under section 88 of the Town and Country
Planning Act 1971 which provides for an appeal against an enforcement
notice on any of seven grounds. In this case only the first two are rele- F
vant. They are as follows:
" (1). . . (a) that planning permission, ought to be granted for the
development to which the notice relates or, as the case may be, that
a condition or limitation alleged in the enforcement notice not to have
been complied with ought to be discharged; (b) that the matters
alleged in the notice do not constitute a breach of planning control." Q
In the notice of appeal relating to the hangars it was asserted* first,
that the condition as to the removal of the hangars was void with the
result that the permission granted in 1962 was unconditional, .and,
secondly, that the authorised use of the hangars on July 1, 1948, the date
when the Town and Country Planning Act 1947 came into force, was
" warehouse/storage " and that the hangars were used for " warehouse/ JJ
storage purposes throughout the period 1948/62."
If the authorised use of the hangars on July 1, 1948, was "ware­
house/storage" and that use had not been abandoned or if the " existing

595-
A.C. Newbury Council v. Environment Sec. (H.L.(E.)) Viscount Dilhorne
use " of the hangars was for " warehouse/storage purposes," it was not
necessary to apply for planning permission to use the hangars for those
purposes. .: ■
The first question to be considered in this appeal appears to me to
be: Was planning permission necessary for the use by I.S.R. of the
hangars as warehouses'!
Before making his decision on these appeals the Secretary of State
B directed a local inquiry. The inspector who held the inquiry reported on
February 5, 1975. His findings of fact were accepted by the Secretary
of State and the relevant findings were as follows: that Membury Airfield
ceased to be operational in 1947; that from 1947 to 1953 the hangars were
used as a storage depot on behalf of the Ministry of Agriculture, Fisheries
and Food; that in 1953 the airfield was transferred to the United States
Q Air Force and the use then made of the hangars is not known; that in
1954 it became a sub-depot of No. 3 Maintenance Unit at Milton; that
from 1955 to 1959 the hangars were used by the Home Office for the
storage of Civil Defence vehicles; and that in 1959 an 11 year permission
was granted for the use of the hangars for the storage of fertilisers
subject to the condition that at the end of that period the hangars would
be removed.
D The inspector concluded on the facts that there was a clearly estab­
lished use of the hangars when in Crown occupation prior to 1959 for
storage and that the only gap in their use for storage was when they were
used by the United States Air Force and that after that, use for storage
was resumed. In his view the application for permission to use them for
the storage of fertilisers in 1959 was unnecessary and I.S.R. did not
p require planning permission to use them for storage as that was their
previous use.
The Secretary of State in his decision letter of July 24, 1975, held
that when the hangars were used for storage purposes from 1947 to 1953
and again from 1955 to 1959 the hangars formed an independent planning
unit. He held that the Home Office use of them was not use as whole­
sale warehouses nor was it use as repositories coming within Class X of
F the Town and Country Planning (Use Classes) Order.
It was not contended by the appellants that the use by the Home Office
was use as wholesale warehouses but it was submitted that the hangars
were then used as repositories.
By the Town and Country Planning (Use Classes) Order 1948 (which
came into force on the same day as the Town and Country Planning Act
-, 1947) it was provided by paragraph 3 (1) that:
" Where a building or other land is used for a purpose of any class
specified in the Schedule to this Order, the use of such building or
other land . . . shall not be deemed for the purposes of the Act to
involve development of the land."
Class X in the Schedule read as follows: " Use as a wholesale warehouse
H for any purpose, except storage of offensive or dangerous goods." And
Class XI as follows: " Use as a repository for any purpose except storage
of offensive or dangerous goods." "Repository" was defined in para­
graph 2 (2) of this Order as meaning " a building (excluding any land

596
Viscount Dilhome Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
occupied therewith) where storage is the principal use and where no .
business is transacted other than incidentally to such storage." The
meaning of " wholesale warehouse " was also denned.
In 1950 this Order was replaced by the Town and Country Planning
(Use Classes) Order 1950. The purpose of this Order was to amalgamate
certain of the use classes so that a wider range of changes of use might
take place without involving development requiring planning permission.
Classes X and XI of the Order of 1948 were amalgamated and Class B
X in the Order of 1950 read as follows: " Use as a wholesale warehouse
or repository for any purpose." In subsequent Use Classes Orders, this
has not been altered.
The definitions of " repository " and " wholesale warehouse " were
omitted from the 1950 and subsequent Use Classes Orders but, if it had
been the intention that these words should bear a different meaning from Q
that they bore from 1948 to 1950, I would have expected that to have
been made clear.
In my opinion the definition of " repository " in the Order of 1948 is
an excellent definition of the meaning that would ordinarily be given to
that word.
The Secretary of State based his decision on a sentence of Lord Den­
ning M.R. in his judgment in G. Percy Trentham Ltd. v. Gloucestershire ^
County Council [1966] 1 W.L.R. 506. Lord Denning had pointed out
that under Class X a building used as a repository for storing furniture
could be used as a repository for storing archives without getting planning
permission and then went on to say, at p. 512: " A repository means a
place where goods are stored away, to be kept for the sake of keeping
them safe, as part of a storage business." (my emphasis). E
In an earlier case Horwitz v. Rowson [1960] 1 W.L.R. 803, 810
Havers J. had said: " ' Repository,' I think, means a building wherein
goods are kept or stored, and I think it must be in the course of a trade or
business."
He did not say why he thought that nor did Lord Denning say why he
thought that the storage must be part of a storage business. It may be p
that the conjunction of " wholesale warehouse " and " repository " in
Class X of the Order of 1950 led to the view that as use as a wholesale
warehouse would be use for a business purpose, use as a repository must
also, to come within Class X, be for a business purpose but if this was so,
the history of the Order shows, in my opinion, that it was not well-founded.
A place may be used as a repository for archives without being used as
part of a business, e.g. a muniment room. The merger of Classes X and O
XI of the Order of 1948 into Class X of the Order of 1950 was not done
with the object of altering the meaning to be given to the word " reposi­
tory " but to extend the changes of use that might be made without
planning permission.
All the members of the Divisional Court (Lord Widgery C.J., Michael
Davies and Robert Goff JJ.) and all the members of the Court of Appeal JJ
(Lord Denning M.R., Lawton and Browne L.JJ.) agreed that the use of
the hangars by the Home Office was not use as a repository.
Despite the unanimity of judicial opinion and despite the strong view

597
A.C. Newbury Council v. Environment Sec. (H.L.(E.)). Viscount Dilhorne
. expressed by Lord Denning M.R. [1978] 1 W.L.R. 1241, 1250, that " no
one conversant with the English language would dream of calling these
hangars a ' repository' when filled with fire-pumps or synthetic rubber "
and that of Lawton L.J., at p. 1253, that
" As a matter of the ordinary modern usage of the English language,
. . . no literate person would say that the use to which the Home
Office had put the hangars in the 1950s was, or that the company
B are now, using them as a repository "
T feel compelled to say that to describe the use of the hangars when so
filled as use for a repository is* in my opinion, a perfectly accurate and
correct use of the English language. They were when used by the Home
Office used as repositories for fire-pumps and so to describe them is
just as correct as it is to describe a burial place as a repository for the
C dead.
The Secretary of State cannot be blamed for holding that they were
not used as repositories coming within Class X in the light of what was
said in G. Percy Trentham Ltd. v. Gloucestershire County Council [1966]
1 W.L.R. 506 but in my view it is wrong to say that to come within
that class use as a repository must be use as part of a storage business.
D My conclusion on this part of the case is that the use by the Home
Office was use as a repository coming within Class X and that, conse­
quently, unless that use was abandoned—and that was not established—or
unless I.S.R. cannot now rely on that use in consequence of " blowing hot
and cold," I.S.R. can now, by virtue of Class X, use the hangars as
wholesale warehouses without planning permission.

E Blowing hot and cold
The respondents contended that the appellant was precluded from
relying on existing use rights and Class X as they had taken up and
implemented the permission granted to them on May 31, 1962. This
contention found favour with Lord Denning M.R. He said, that in 1962
I.S.R: had two inconsistent courses open to them, [1978] 1 W.L.R. 1241,
F 1250-1251:
" One was to apply for a grant of planning permission; the other
was to rely on any existing use rights that might be attached to
the site. Once they opted for planning permission—and accepted
it without objection—they had made their bed and must lie on it.
No doubt they did not know of the past history, but that was only
Q because they did not choose to rely on it. They should not be
allowed to bring it up again now."
I do not know, whether I.S.R. before they applied for planning
permission in May 1962 and before they had acquired the hangars could
have found out the past history but however that may be, I find this
passage from Lord Denning's judgment difficult to reconcile with his
JJ acceptance of the argument advanced in Gray v. Minister of Housing
and Local Government (1969) 68 L.G.R. 15 that the fact that a man
applies for planning permission does not debar him from afterwards
alleging that he was entitled to rely on " existing use " rights.

598
Viscount Dilborne Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
Lawton L.J. did not find it necessary to decide this question and .
Browne L.J. did not agree with Lord Denning on this.
It was not until the decision in Prossor v. Minister of Housing and
Local Government (1968) 67 L.G.R. 109 that any support can be found
for the proposition that application for followed by the grant and use
of planning permission prevented reliance on existing use rights. In. that
case permission was given for the rebuilding of a petrol station subject
to the condition that no retail sales other than of motor accessories B
should take place thereon. After the rebuilding second-hand cars were
displayed for sale on the site. An enforcement notice was served.. In
the course of his judgment, with which the other members of the court
agreed, Lord Parker C.J. said, at p. 113:
" . . . assuming that there was . . . an existing use right running on
this land for the display and sale of motor cars, yet by adopting Q
the permission granted in April, 1964, the appellant's predecessor,
as it seems to me, gave up any possible existing use rights in that
regard which he may have had. The planning history of this site,
as it were, seems to me to begin afresh on April 4, 1964, with the
grant of this permission, a permission which was taken up and
used . . . "
D
The correctness of this decision was doubted by Winn L.J. but not
by Lord Denning M.R. in Gray v. Minister of Housing and Local
Government, 68 L.G.R. 15. There the planning permission was to build
premises twice the size of premises which had been destroyed by fire.
Lord Denning doubted whether, having obtained that permission and
having taken advantage of it by building the new premises, the appellants
could afterwards rely on existing use rights. Winn L.J. did not think ^
it necessary to decide the case on that ground. He thought: that there
was no sufficient proof of existing use rights.
These two cases were reviewed in Petticoat Lane Rentals Ltd. v.
Secretary of State for the Environment [1971] 1 W.L.R. 1112. In this
case Widgery L.J., with whose judgment Lord Parker C.J. agreed,
while thinking that the Prossor case, 67 L.G.R. 109, was rightly decided, F
thought it was a case which should be applied with some little care. In
this case planning permission was given for the erection of a building
on a clear site and the building was put up. Widgery L.J. said, at
p. 1117:
" Where that happens . . . in my judgment one gets an entirely new
planning unit created by the new building. The land as such is Q
merged in that new building and a new planning unit with no
planning history is achieved. That new planning unit, the new
building, starts with a nil use, that is to say, immediately after it
was completed it was used for nothing, and thereafter any use to
which it is put is a change of use, and if that use is not authorised
by the planning permission, it is a use which can be restrained by
planning control." H
My Lords, there are a number of cases, of which Mounsdon v.
Weymouth and Melcombe Regis Borough Council [1960] 1 Q.B. 645

599
A.C. Newbury Council v. Environment Sec. (H.L.(E.)) Viscount Dilhorne
is one, in which it has been held that a grant of planning permission
• does not prevent it being subsequently contended that no such permission
was necessary on account of existing use rights and I do not myself
think that the decision in the Prossor case, 67 L.G.R. 109, is
sustainable on the basis that the obtaining and taking up of planning
permission in itself prevents reliance on such rights.
If, however, the grant of planning permission, whether it be per­
il mission to build or for a change of use, is of such a character that the
implementation of the permission leads to the creation of a new planning
unit, then I think that it is right to say that existing use rights attaching
to the former planning unit are extinguished. It may be that in the
Prossor case the erection of the new building created a new planning
unit. If it did, and it is not very clear from the report, then in my
view that case was rightly decided.
It is clear that in this case the grant of the planning permission in
May 1962 did not create a new planning unit and so, in my opinion,
I.S.R. were not precluded from relying on the existing use rights attaching
to the site.
If, contrary to my view, planning permission was necessary for the
use of the hangars by I.S.R., the validity of the condition attached to
D that permission has to be determined.

The validity of the condition
Section 29 (1) of the Town and Country Planning Act 1971 requires a
local planning authority when dealing with an application for planning
permission to have regard to the provisions of the development plan
E so far as material " and to any other material considerations," and
gives the planning authority power, subject to the provisions of a number
of sections (which have no relevance to this case) to grant planning
permission, either unconditionally or subject to such conditions as it
thinks fit or to refuse permission.
The power to impose conditions is not unlimited. In Pyx Granite
— Co. Ltd. v. Ministry of Housing and Local Government [1958] 1 Q.B.
554 Lord Denning said, at p. 572:
" Although the planning authorities are given very wide powers to
impose ' such conditions as they think fit,' nevertheless the law says
that those conditions, to be valid, must fairly and reasonably relate
1
to the permitted development. The planning authority are not at
„ liberty to use their powers for an ulterior object, however desirable
that object may seem to them to be in the public interest."
As Lord Reid said in Mixnam's Properties Ltd. v. Chertsey Urban
District Council [1965] A.C. 735, 751, this statement of law was approved
by this House in Fawcett Properties Ltd. v. Buckingham County Council
[1961] A.C. 636.
JJ It follows that the conditions imposed must be for a planning purpose
and riot for any ulterior one,.and that they must fairly and reasonably
relate to the development permitted. Also they must not be so un­
reasonable that no reasonable planning authority could have imposed

600
Viscount Dilhorne Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
them: see Associated Provincial Picture Houses Ltd. v. Wednesbury .
Corporation [1948] 1 K.B. 223; Hall & Co. Ltd. v. Shoreham-by-Sea A
Urban District Council [1964] 1 W.L.R. 240, per Willmer L.J. at p. 248,
per Harman L.J. at p. 255, per Pearson L.J. at p. 261; City of London
Corporation v. Secretary of State for the Environment (1971) 23 P. &
C.R. 169 and Reg. v. Hillingdon London Borough Council, Ex parte
Royco Homes Ltd. [1974] Q.B. 720.
The conditions in this case were clearly imposed for planning purposes. B
Did they fairly and reasonably relate to the proposed development? If
they did not, it is unnecessary to consider whether they were so un­
reasonable that no planning authority could reasonably have imposed
them. The Secretary of State came to the conclusion that the condition
that the hangars should be removed at the end of the period during
which their use as warehouses was permitted, did not fairly and reason- _
ably relate to their use as warehouses. The Court of Appeal held that
he was wrong.
In 1968 the Ministry of Housing and Local Government published
a circular entitled " The Use of Conditions in Planning Permissions " as
guidance to the use of the power. In the paragraph headed " Is the
condition relevant to the development to be permitted? " the following
appears: D
" A condition requiring the removal of an existing building, whether
on the application site or not, will only be reasonable if the need
for that removal springs directly from the fact that a new building
is to be erected. It may so spring, for example, if with both
buildings on it, the site would be overdeveloped. But the grant of
permission for a new building or for a change of use cannot properly E
be used as a pretext for general tidying-up by means of a condition
on the permission."
The attention of the inspector was drawn to this paragraph and it
was contended that he and the Secretary of State had reached the
conclusion that the condition did not fairly and reasonably relate to the
permission granted on the ground that, in view of this statement in p
the circular, a condition requiring the removal of a building could not
be attached to a permission relating to its use. If they had decided
this question on this ground, they were in my opinion, wrong. Although
it may be that only in exceptional cases could it be held that a condition
requiring the removal of buildings fairly and reasonably related to the
grant of permission for their use, such cases may occur.
I do not, however, think that the inspector or the Secretary of State
decided this question on this ground. The inspector held that:
" . . . the condition that such substantial and existing buildings as
the two hangars should be removed would appear to flow from a
general wish to restore the area as a whole rather than from any
planning need arising from the actual purpose for which the „
permission was sought. It was not necessary to that purpose, or
to the protection of the environment in the fulfilment of that
purpose: it was a condition extraneous to the proposed use."

601
A.C. Newbury Council v. Environment Sec. (H.L.(E.)) Viscount Dilhorne
So he held that the condition was void.
A
The Secretary of State in his decision letter said:
" The inspector's conclusions have been considered. It is evident
that the local planning authority imposed the condition to remove
the hangars to safeguard their long term policy for industrial
development in rural areas and to secure the future improvement
of the amenity of the area of the appeal site. It is considered
B however, in the circumstances of this case where planning permission
was sought merely for a change of use of existing substantial build­
ings, that a condition requiring the removal of those buildings after
the expiration of a specified number of years was not sufficiently
related to the change of use in respect of which the planning
permission was granted and was unreasonable."
C This appears to me in substance to be a repetition in different
language of the inspector's conclusion. The Secretary of State agreed
with him as to the object the local planning authority had sought to
achieve. They both emphasised the substantial nature of the existing
buildings. The contention that the Secretary of State misdirected himself
by holding that a condition requiring demolition of a building could
jy not be attached to a use permission does not appear to me established.
If in the circumstances of this case the condition imposed was not,
in the Secretary of State's opinion, fairly and reasonably related to the
permission granted, the courts cannot interfere with his conclusion unless
it is established that he misdirected himself or reached a conclusion to
which he could not reasonably have come. That has not been done.
The Secretary of State held that the condition which in his view
E was invalid, was not severable from the permission granted and that
consequently this permission was void. In my opinion he was entitled
so to do and I consequently conclude that the enforcement notices
were invalid and also that as the use of the hangars by I.S.R. started
before January 1; 1964, no enforcement notice can now be served.
I would allow the appeals and restore the order of' the Divisional
~,p Court. In my opinion the proper order as to costs should be that no
order should be made in respect of the Secretary of State's costs and
that the Newbury District Council should pay the appellants' costs in
this House and in the Court of Appeal.

LORD EDMUND-DAVIES. My Lords, I seek to do no more than add
some short comments on the three main issues involved in these appeals,
G as I share in the common agreement of your Lordships that the appeals
must be allowed and the order of the Divisional Court restored, and
this for the reasons advanced in the speech of my noble and learned
friend, Viscount Dilhorne.
Of the three issues, the first' logically calling for consideration is
whether, on the true construction of Class X of the Town and Country
JJ Planning (Use Classes) Order 1950, the use by the Home Office of the
former aircraft hangars between 1955 and 1959 for the long-term storage
of civil defence vehicles constituted use as a " repository." A negative
answer to that question has hitherto been given throughout by the

602
Lord Edmund-Davies Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
Secretary of State, the Divisional Court and the Court of Appeal. But .
the true answer, as I think, is that there was a Class X user of the
hangars right back to 1950, when the Use Classes Order of that year
put " wholesale warehouse " and " repository " uses for the first time in
the same user class. It is common ground that the I.S.R. user was as
a wholesale warehouse, and the sole dispute on this aspect of the case
relates to the nature of the Home Office four years' user. If, as I.S.R.
assert, it was as a " repository," it follows that the later user by them B
involved no material change of user and therefore no " development,"
and, accordingly, no planning permission was necessary. The issue
accordingly resolved itself into the proper meaning of the term
"repository." Havers J. said in Horwitz v. Rowson [1960] 1 W.L.R.
803, 810: " ' Repository,' I think, means a building wherein goods are
kept or stored, and I think it must be in the course of a trade or business." _,
This was followed by the obiter dictum of Lord Denning M.R. in G.
Percy Trentham Ltd. v. Gloucestershire County Council [1966] 1 W.L.R:
506, 512, that: " A repository means a place where goods are stored
away, to be kept for the sake of keeping them safe, as part of a storage
business." (Emphasis added). But, my Lords, the relevant words of
the Use Classes Order itself are " repository for any purpose," and the
qualification judicially imposed was, with respect, contrary both to the D
Order itself and to the generally accepted meaning of " repository."
There is, I hold, no material difference (as far as the Use Classes
Order is concerned) between a furniture repository or a repository for
archives (cited by Lord Denning M.R. as typical uses of the word) and
the use of the hangars by I.S.R. as a wholesale warehouse. It follows,
accordingly, that no planning permission was required by them in
turning the hangars to such use. . . B
My Lords, as to the earlier issue raised, that relating to the interpre­
tation of sections 29 and 30 of the Town and Country Planning Act 1971,
I desire to say no more than that, in my judgment, learned counsel for
I.S.R. went farther than he need in submitting that a condition for
removal of buildings could never be attached to a planning permission
restricted to change of use. It is true that such was the view expressed p
in the ministry circular 5/68, issued in 1968 ("The Use of Conditions in
Planning Permissions") and followed by the Secretary of State in the
present case. But whether a removal condition may properly be imposed
in some circumstances, wholly different from those of the present case,
may on another occasion call for careful consideration. For present
purposes it is sufficient to hold, as I do, that, in the circumstances of the
instant case, the condition for removal of the hangars did not fairly or ^
reasonably relate to the permitted development.
The third issue ("Blowing hot and cold") was not advanced at the
inquiry and was therefore never considered by the Secretary of State.
Nor was it raised in the notice of motion to the Divisional Court, though
it was adverted to at the hearing, Michael Davies J. restricting himself to
saying (1977) 75 L.G.R! 608, 612: " I do not think that there is any comfort H
for the appellant [Newbury District Council] in it," and Robert Goff J.
expressing himself similarly. In the Court of Appeal it was sympatheti­
cally received by Lord Denning M.R. alone. Learned counsel for the

603
A.C. Newbury Council v. Environment Sec. (H.L.(E.)) Lord Edmund-Davies
Secretary of State expressed alarm in this House at the prospect of the
A
view expressed by Lord Denning M.R. receiving acceptance by your
Lordships, envisaging as one of the possible results the destruction even
of what had long been regarded as established rights of user. I restrict
myself to saying that I am in respectful agreement with all your Lordships
in holding that, on the facts of this case, the " hot and cold " doctrine
should be regarded as having no application.
B
LORD FRASER OF TULLYBELTON. My Lords, these appeals, which were
heard together, raise questions of planning law as it affects two hangars
built by the Royal Air Force on Membury Airfield during the war. The
hangars now belong to the International Synthetic Rubber Co. Ltd.
(" I.S.R. "), who are the appellants in one appeal. The appellant in the
other appeal is the Secretary of State for the Environment. The respon-
C dent in both appeals is Newbury District Council. After the war the
hangars were used for storing various things but it is unnecessary to go
further back than 1955. From 1955 to 1959 they were used by the Home
Office for the long-term storage of civil defence vehicles, including
" Green Goddess " fire engines. In 1959 planning permission was given
for the hangars to be used for the storage of agricultural products, subject
r_) to a condition that the buildings were to be removed at the expiration of
a period ending December 31, 1970. Thereafter one of them was used for
a time for storing fertilisers and agricultural goods. On May 31, 1962,
planning permission was granted to I.S.R. by the predecessors of the
respondents as planning authority, for use of the hangars as " ware­
houses." The permission was not expressed to be for a limited period,
but it was subject to two conditions, one of which was that " The build-
E ings shall be removed at the expiration of the period ending December
31, 1972." In July. 1962 I.S.R., having been granted planning permission,
bought the hangars and proceeded to use them as warehouses.
In 1970, when the time for demolition was drawing near, they applied
for an extension of the planning permission for 30 years, but their appli­
cation was refused, by the respondents. I.S.R. appealed to the Secretary
p of State against the refusal, and on November 12, 1973, while the appeal
was pending, an enforcement notice was served on them requiring them
to comply with the condition that the hangars be removed. (A separate
enforcement notice was served on I.S.R. at the same time relating to the
removal of another small building. This notice was also the subject of
an appeal which forms part of the present proceedings, but we heard no
separate argument about it and I need not refer to it again.) I.S.R.
G appealed to the Secretary of State against the enforcement notice, and
against the refusal to extend the planning permission for 30 years.
After a public inquiry, the Secretary of State upheld I.S.R.'s appeal
against the enforcement notice on the ground that the condition attached
to the planning permission of 1962 was invalid and was not severable
from the rest of the notice. But he rejected an argument for I.S.R. to
JJ the effect that no planning permission had been required in 1962 because
the hangars had been in use since 1947 for a purpose in the same use
class as wholesale warehouse. He dismissed the appeal against the
refusal to extend planning permission for 30 years. The Divisional

604
of°rTuHybeiton Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
Court refused an appeal against the Secretary of State's decision. The ,
Court of Appeal allowed an appeal by the respondents and held that the
enforcement notice was valid but they again rejected the argument that
planning permission had been unnecessary. It will be convenient to
consider that argument first.

Was planning permission necessary in 1962 for use of the hangars as
warehouses? , B
The Town and Country Planning (Use Classes) Order 1950 provides in
paragraph 3 that where a building or other land is used for a purpose
specified in the Schedule to the Order, the use of the building or land for
any other purpose of the same class shall not be deemed to involve
development of the land in the sense of the Town and Country Planning
Acts. The result is that planning permission for the change of use Q
within the class is not required. Class X in the Schedule is as follows:
" Use as a wholesale warehouse or repository for any purpose." It was
common ground that the hangars had been used since 1959 as wholesale
warehouses. It; was also common ground that if the use of the hangars
by the Home Office from 1955 to 1959 had been as "repositories"
such use would be within Class X of the Order and that therefore no
planning permission would be required to use them as wholesale ware- D
houses. The question, in dispute is whether the use by the Home Office
for the long-term storage of civil defence vehicles was use as a " reposi­
tory." The Secretary of State and all the learned judges who have so
far considered this question have held that the Home Office did not use
the buildings as repositories. It is therefore only with diffidence that I
reach the opposite conclusion, as I feel bound to do. In the Court of „
Appeal, Lord Denning M.R. said that it was a matter of impression
depending on the meaning that one gives to the word " repository " in
one's own vocabulary: [1978] 1 W.L.R. 1241, 1249. He went on, at
p. 1250:
" My opinion is that no one conversant with the English lan­
guage would dream of calling these hangars a ' repository' when
filled with fire-pumps or synthetic rubber." . . F
The other learned Lords Justices agreed with Lord Denning's view and
they also expressed agreement with the statement by Lord Denning in
the case of G. Percy Trentham Ltd. v. Gloucestershire County Council
[1966] 1 W.L.R. 506, 512 as follows: " A repository means a place where
goods are stored away, to be kept for the sake of keeping them safe, as
part of a storage business." (My italics). That statement was quoted by ^
the Secretary of State in his decision letter in the present appeal and he
naturally and properly relied upon it in making his decision. But the
words in italics were not strictly necessary to the decision in the case of
Trentham. They seem to have been taken from an earlier statement,
which was also obiter, by Havers J. in Horwitz v. Rowson [1960] 1
W.L.R. 803, 810. In my respectful opinion, for the reason which I am JJ
about to explain, the words in italics are not correct.
The question is not simply what the word " repository " means in
ordinary speech, but what it means as used in Class X of the Schedule

605
A.C. Newbury Council v. Environment Sec. (H.L.(E.)) Lord Frascr
of Tullybelton
. to the Order of 1950. The two meanings are not necessarily identical.
In ordinary speech the word is seldom used, but when used it is applied
mainly to two things, a furniture repository and a repository for docu­
ments. In the latter sense it may be applied either to a building such as
the Public Record Office or to places such as a safe or a desk in which a
person's will or codicils are likely to be found after his death; in neither
case is the storage " as part of a storage business." But the Shorter
B Oxford English Dictionary, 3rd ed. (1944), p. 1707, gives the word a much
more general meaning. It gives the first meaning of " repository " as " A
vessel, receptacle, chamber, etc., in which things are, or may be placed,
deposited, or stored." In this Order the meaning is not restricted, because
Class X includes repository " for any purpose." It seems to me that build­
ings used for the long-term storage of vehicles fall clearly within that
_ description. The reason why the draftsman preferred the word reposi­
tory to the commoner word " store " may be that " store " is sometimes
used to include a retail shop such as a " department store."
If it were permissible to refer to the Use Classes Order of 1948,
which was repealed and replaced by the Order of 1950, the matter would,
I think, be even clearer because in paragraph 2 (2) of the Order of 1948
" repository " is defined as meaning " a building . . . where storage is
D the principal use and where no business is transacted other than incident­
ally to such storage." In the Schedule to the Order of 1948, use as a
wholesale warehouse and use as a repository were in separate Use Classes,
numbered X and XI respectively. But in the Schedule to the Order of
1950 those classes were amalgamated and the definition of repository
was omitted. Comparison of the two Orders is of course permissible,
p but there is no way in which the courts can know for certain what was
the purpose of these changes. In any event, what matters is their effect
which has to be ascertained by construing the Order of 1950, and not
by relying on the explanatory note attached to it which is not part of
the Order but is intended merely to indicate its general purport. In these
circumstances I do not think it.would be legitimate to assume that the
meaning of repository was the same in both Orders, or to use the 1948
F definition as an aid to construing the Order of 1950. I shall therefore
disregard the Order of 1948.
It follows from what I have said that in my opinion the change of
use from repositories to wholesale warehouses was a change between
two uses, both of which were within Class X. It was therefore not
development and did not require planning permission. So, unless I.S.R.
G are precluded from relying upon the Home Office use of the buildings
as repositories, it is immaterial whether the enforcement notice was
valid or not.

Blowing hot and cold
In the Court of Appeal Lord Denning M.R. held that, even if the
JJ hangars had been used as "repositories" by the Home Office, I.S.R.
would not now be entitled to rely upon existing use rights derived from
that use, because they had accepted and acted upon the grant of planning
permission in 1962, which was subject to the condition of removal, and

606
Lord Fraser Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
of Tullybelton '
they could not turn round now and say they did not need planning .
permission after all. That would be blowing hot and cold and should
not be allowed. He applied the maxim of law and equity: " Qui sentit
commodum sentire debet et onus." Mr. Boydell said that the planning
authority had been prejudiced by I.S.R.'s apparent acceptance of the
planning permission with its attached condition for nearly 10 years, and
I was at first attracted by the argument. The principle for which Mr.
Boydell contended was stated by him thus: " The planning history of a B
site starts afresh when the acceptance and implementation of planning
permission is inconsistent with reliance on earlier existing use rights."
I doubt whether that formulation really applies to the circumstances of
the present case, because the implementation of the 1962 planning per­
mission can hardly be said to have been inconsistent with reliance on
earlier existing use rights during the period before December 31, 1972. _
During that period there was nothing to show whether I.S.R.'s use of
the hangars was in reliance on the planning permission of 1962 or on
earlier existing use rights. But apart from that point which arises on
the facts of this appeal, I am of opinion that the principle contended
for is unsound. It would introduce an estoppel or bar, personal to the
particular party, which is quite inappropriate in this field of law, which
is concerned with rights that run with land. To do so would lead to D
uncertainty and confusion. It would also interfere with the; convenient
practice whereby prospective vendors or purchasers of land apply for
planning permission as a precaution if there is doubt about whether their
proposals are already permissible or not. It would, moreover, be incon­
sistent with a number of decided cases, including Mounsdon v. Weymouth
and Melcombe Regis Borough Council [1960] 1 Q.B. 645. p
The only circumstances in which existing use rights are lost by
accepting and implementing a later planning permission are, in my
opinion, when a new planning unit comes into existence as in Prossor
v. Minister of Housing and Local Government, 67 L.G.R. 109. That
was a case where planning permission had been given for the rebuilding
of a petrol service station and the rebuilding had been carried out.
Lord Parker C.J. said, at p. 113: F
" . . . by adopting the permission granted in April 1964, the appel­
lant's predecessor, as it seems to me, gave up any possible existing
use rights in that regard which he may have had. The planning
history of this site, as it were, seems to me to begin, afresh on
April 4, 1964, with the grant of this permission, a permission which
was taken up and used . . . " Q
Prossor's case was approved in Leighton and Newman Car Sales Ltd.
v. Secretary of State for the Environment (1976) 32 P. & C.R. 1, 10,
where the facts were very similar, and in Petticoat Lane Rentals Ltd.
v. Secretary of State for the Environment [1971] 1 W.L.R. 1112 where
a new building was erected covering the whole of an area of open land.
Such physical alteration will normally be made only in implementation JJ
of planning permission for erection of new buildings, but it might be
made in implementation of planning permission for a change of use in
some circumstances. For example, as was suggested in argument, there

607
Lord Fraser
A.C. Newbury Council v. Environment Sec. (H.L.(E.))
J x x
'' of Tullybelton
. is the case of a single dwelling house being divided into separate flats
by purely internal alterations, for which the only planning permission
required would be for a change of use. Accordingly I do not think
that the principle should be limited to cases of planning permission for
rebuilding, although it will only seldom apply to planning permission
for change of use.
For these reasons I do not consider that I.S.R. are precluded from
B relying upon their existing use rights derived from the Home Office use
of the site. It follows that there is nothing to prevent their continuing
to use the hangars as warehouses or, if they choose, reverting to using
them as repositories.
Validity of the enforcement notice
Q Having regard to the opinion which I have already expressed, it is
not strictly necessary to consider this matter, but as we were urged by
counsel for all the parties to give what guidance we could, I shall express
my opinion on the questions that arise.
The power on which the respondents relied to justify the condition
attached to the planning permission granted in 1969 was derived from
section 17 (1) of the Town and Country Planning Act 1962, but it is
■^ more convenient • to refer to section 29 (1) of the Town and Country
Planning Act 1971, which does not differ from the earlier enactment in
any material respect. Section 29 (1) provides as follows:
" Subject to the provisions of sections 26 to 28 of this Act, and to
the following provisions of this Act, where an application is made
to a local planning authority for planning permission, that authority,
in dealing with the application, shall have regard to the provisions
of the development plan, so far as material to the application, and
to any other material considerations, and—(a) subject to sections 41,
42, 70 and 77 to 80 of this Act, may grant planning permission,
either unconditionally or subject to such conditions as they think
p «'■ ■ ■ •"

The words that I have italicised would appear on their face to confer
an unlimited power, but it is plain that the power is subject to certain
limitations. If authority for that proposition is needed it is to be found
in the speech of Lord Reid in Kingsway Investments {Kent) Ltd. v. Kent
County Council [1971] A.C. 72, 86. In order to be valid, a condition
must satisfy three tests. First, it must have a planning purpose. It may
G have other purposes as well as its planning purpose^ But if it is imposed
solely for some other, purpose or purposes, such as furtherance of the
housing policy of the local authority, it will.not.be valid as a planning
condition: see Reg. v. Hillingdon London Borough Council, Ex parte
Royco Homes Ltd. [1974] Q.B. 720. Second, it must relate to the
permitted development to which it is annexed. The best known state-
JJ ment of these two tests is that by Lord Denning in Pyx Granite Co. Ltd.
v. Ministry of Housing and Local Government [1958] 1 Q.B. 554 which
has been followed and applied in many later cases.'. Lord Denning said,.
at p. 572: - .■ , ' . " . - . .

608
Lord Fraser Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
" Although the planning authorities are given very wide powers to »
impose ' such conditions as they think fit,' nevertheless the law says
that those conditions, to be valid, must fairly and reasonably relate
to the permitted development. The planning authority are not at
liberty to use their powers for an ulterior object, however desirable
that object may seem to them to be in the public interest."
One reason, relevant to the instant case, why it would be wrong to secure ™
removal of buildings by the use of a condition unrelated to the permitted
development is that it would enable the planning authority to evade its
liability to pay compensation for removal under section 51 of the Act of
1971. Thirdly, the condition must be " reasonable " in the rather special
sense of Associated Provincial Picture Houses Ltd. v. Wednesbury
Corporation [1948] 1 K.B. 223, 229. Thus it will be invalid if it is " so
clearly unreasonable that no reasonable planning authority could have C
imposed i t " as Lord Widgery C.J. said in Kingston-upon-Tliames Royal
London Borough Council v. Secretary of State for the Environment
[1973] 1 W.L.R. 1549, 1553.
There was no dispute between the parties that tests substantially in
the terms I have set out were those relevant for the present purpose. It
may not be strictly necessary to specify the second of these tests n
separately, as it may be included within the third, but I think it is
desirable to set it out as a separate test lest it be overlooked.
It remains to ascertain whether the Secretary of State applied these
tests in the present case. Clearly the condition for the removal of the
buildings was imposed in furtherance of the authority's planning policy,
and it therefore satisfied the first test. I think it also satisfies the third
test. The second test raises more difficulty. The reasons for the Secre- E
tary of State's decision on this part of the appeal are given in paragraph 8
of his decision letter, which included, the following passage:
" It is evident that the local planning authority imposed the con­
dition to remove the hangars to safeguard their long term policy
for industrial development in rural areas and to secure the future
improvement of the amenity of the area of the appeal site. It is F
considered however in the circumstances of this case where planning
permission was. sought merely for a change of use of existing sub­
stantial buildings, that a condition requiring the removal of those
buildings after the expiration of a specified number of years was not
sufficiently related to the change of use in respect of which the
planning permission was granted and was unreasonable. It is there- Q
fore concluded that the condition was invalid. The allegation that
[I.S.R.] failed to comply with the condition is therefore inappro­
priate. The appeal succeeds on ground (b) and the enforcement
notice is being quashed."
Ground (b) is a reference to section 88 (1) (b) of the Act of 1971 which
provides that an appeal may be taken to the Secretary of State against an JJ
enforcement notice on the ground: " (b) that the matters alleged in the
notice do not constitute a breach of planning control." I am not sure
whether paragraph 8 is intended to mean that a condition for removal

609
A.C. Newbury Council v. Environment Sec. (H.L.(E.)) Lord fnm
* of lulljbelton
A of buildings could never, as a matter of law, be sufficiently related to
planning permission which was merely for a change of use (as distinct
from permission for the erection of buildings), or that on the facts in
this case, it was not related to the permission. On the whole I am
inclined to think that the former view is correct, because the only
circumstance of the case which is mentioned is that planning permission
has been sought " merely for a change of use of existing substantial
B buildings." I am also influenced by the fact that that appears to be the
opinion of the Secretary of State's department as set out in the circular
5/68, dated February 6, 1968, issued by the former Ministry of Housing
and Local Government with its accompanying memorandum on " The
Use of Conditions in Planning Permissions," paragraph 9 of which
includes the following sentence:
C " A condition requiring the removal of an existing building, whether
on the application site or not, will only be reasonable if the need
for that removal springs directly from the fact that a new building
is to be erected." (My italics.)
That statement is, in my opinion, too absolute and the words in italics
are not supported by authority. If (as I am inclined to think) it explains
D the reason on which the Secretary of State's decision was based, then
the reason was, in my opinion, erroneous in law. But even if that is so,
I am satisfied that, if the Secretary of State had correctly appreciated
that a condition for removal of buildings attached to permission for
change of use might be valid, he would nevertheless have certainly decided
that in the circumstances of this case it was not sufficiently related to
the permission and was therefore invalid. There was nothing that
E I can see about the change of use to a wholesale warehouse which
required or justified a condition for removal of the buildings. The
reason why the planning authority ordered their removal was to improve
or restore the amenity of the neighbourhood by getting rid of ugly
buildings. No doubt that was a very proper object, but it had nothing
particularly to do with the use of the buildings as warehouses. The
p fact that the permission was in substance a temporary permission, as
the Court of Appeal held, does not seem to me to be relevant to this
matter.
Accordingly I am of opinion that, even giving this condition the
benevolent treatment to which, like a byelaw, it is entitled, it was invalid.
If planning permission had been required for the change of use in 1962,
the Secretary of State would have been right in so deciding and also in
G deciding that, as the condition could not be severed from the permission,
the permission itself was invalid, although his reason for doing so was
(on my reading of his letter), wrong.
I would allow the appeal by I.S.R. with costs here and below against
Newbury District Council. The Secretary of State must bear his own
costs throughout.
H
LORD SCARMAN. ' My Lords, the House has under consideration two
appeals. Both the Secretary of State for the Environment, to whom I
shall refer as " the Minister," and the International Synthetic Rubber
A.C. 1981—22

610
Lord Scarman Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
Co. Ltd., to whom I shall refer as " the company," appeal against the
reversal by the Court of Appeal of the decision of the Divisional Court A
dismissing the appeal of the Newbury District Council, to whom I shall
refer as " the council," from a decision of the Minister allowing the
company's appeal against an enforcement notice served on it by the
Hungerford Rural District Council as agent for the local planning
authority to whose statutory functions and duties the council has
succeeded. The council, as local planning authority, seek to uphold a g
condition imposed by Hungerford Rural District Council upon a planning
permission granted to the company on May 31, 1962, to use two ex-
R.A.F. hangars as warehouses for the storage of synthetic rubber. The
condition was that " The buildings shall be removed at the expiration
of the period ending December 31, 1972." The Minister, holding that
the condition was invalid quashed the enforcement notice. The Divisional
Court agreed. But the Court of Appeal, ruling that the condition was C
valid, upheld the enforcement notice. This House gave leave to appeal.
The Minister announced his decision by letter dated July 24, 1975.
He accepted the facts as found by his inspector after a public inquiry held
by him in January 1975. The appeal site comprises two large aerodrome
hangars on either side of an unclassified road and enclosed in a perimeter
fence at the former Membury airfield some five miles north-west of p
Hungerford and just south of the M4 motorway. The freehold was vested
in the Crown until 1961, when it was returned to the Gilbey family who
had owned the land before the war.
The airfield is an area allocated on the county map for service
requirements but is surrounded for the most part by land in agricultural
use (" white " on the map, indicating that it is not planned to disturb the
existing use). The airfield was operational until 1947. From 1947 until ^
1953 the two hangars were used by the Ministry of Agriculture, Fisheries
and Food " as a buffer storage depot." In 1953 the depot was cleared
and the airfield transferred to the United States Air Force for their use.
The nature of the U.S.A.F. use is not known. In 1954 the Royal Air
Force took over the airfield (including the hangars) for use as a sub-
depot of No. 3 Maintenance Unit. From 1955 to 1959 the hangars were p
used by the Home Office for the storage of civil defence vehicles. In
1959 planning permission was granted to Mr. J. S. Gilbey (a member of
the family whose land it had been before the war) for use of the hangars
for the storage of agricultural products (including fertiliser). Permis­
sion was conditional upon the buildings being removed at the expiration
of the period ending December 31, 1964—which was later extended
to December 31, 1970. A certain Mr. James was allowed to use, and did G
use, one of the hangars for the storage of agricultural products and
fertiliser. In 1961 the company began to use one hangar for the storage
of synthetic rubber.
In 1962 there occurred the planning application and permission with
which these appeals are directly concerned. On May 3, 1962, the com­
pany applied for permission to use the two hangars " as warehouses for JJ
the storage of synthetic rubber," declaring (with strict accuracy only so
far as one hangar was concerned) that they were already in use for that
purpose. On May 31, 1962, planning permission was granted subject to

611
A.C. Newbury Council v. Environment Sec. (H.L.(E.)) Lord Scarman
. conditions. The relevant terms of the permission were that the local
planning authority permitted:
" Use of two hangars on Membury Airfield as warehouses. . . subject
to compliance with the conditions specified hereunder: 1. The build­
ings shall be removed at the expiration of the period ending
December 31, 1972. 2. . . . [irrelevant to the two appeals]."
g The reasons for the conditions were stated to be:
" 1 . To accord with the local planning authority's policy regarding
industrial development in rural areas. 2. To safeguard the amenities
of the area." .
The company did not appeal against the conditions; But two months
later, in July 1962, it took a long lease of the site, and put both hangars
C to use as warehouses.
On November 5, 1970, the company applied for planning permission
to use the hangars as warehouses for a further 30 years (i.e. until the
expiry of their lease) from December 31, 1972. Clearly the company
saw their right of use as based on a temporary permission expiring at the
end of 1972. Permission was refused, and on June 25, 1971, the com-
£. pany appealed to the Minister.
The company did not remove the hangars by December 31, 1972,
but continued, its use of them. On November 12, 1973, .the local
planning authority served an enforcement notice requiring the company
to remove them. The company appealed to the Minister against the
notice.
After stating the facts, the inspector, who took the public inquiry,
E concluded:
" . . . that there was a clearly established use of the appeal hangars
when in Crown occupation, prior to .1959, for storage. Foodstuffs
. were stored from 1947 to 1953, then the hangars were part of a
sub-depot for No. 3 Maintenance Unit at Milton, then from 1955
to 1959 they were used for storing civil defence vehicles."
F
He noted that, after a gap in 1953, when the United States Air Force
had the use of the airfield, the storage use was resumed and commented
that " The application for permission for storage in 1959 [the Gilbey
application] appears to have been unnecessary." Though his report
contains a very helpful discussion of what he calls " the legal implica­
tions " of the facts, he was careful to leave them to the Minister. He
G contented himself with two recommendations confined to the planning
aspects of the case: the first that, if the Minister decided that there
had been a breach of planning control, the condition for removal of the
hangars should not be discharged, and the second that the planning
appeal should be dismissed.
Three questions arise on these facts. First, was planning permission
JJ required when it was granted in 1962? I shall call this the existing use
point. Secondly, if it was not, can the company now rely on an existing
use right and so avoid the condition imposed, that the hangars' should
be removed by the end of 1972? I shall call this the estoppel point.

612
Lord Scarman Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
Thirdly, if planning permission was required, was the condition one which
the local planning authority could lawfully impose? The first question
turns on the true construction of the Use Classes Order 1950—the
effective order.in 1962. The second and third questions raise points of
great importance in the law of planning control and its enforcement.

Existing use
The Town and Country Planning Act 1971 (the Act) consolidated the B
statute law relating to town and country planning in England and Wales.
Part III (sections 22 to 53) provides for general planning control, and
Part V (sections 87 to 111) for the enforcement of planning control.
Section 22 (1) (which reproduces the earlier law) defines development as
meaning " the carrying out of building, engineering, mining or other
operations in, on, over or under land, or the making of any material Q
change in the use of any buildings or other land." Subsection (2)
provides that certain operations or uses of land shall not be taken to
involve development of the land including
" (/) in the case of buildings or other land which are used for a
purpose of any class specified in an order made by the Secretary of
State under this section, the use thereof for any other purpose of -.
the same class."
This provision has been a feature of the legislation ever since the Town
and Country Planning Act of 1947. A Use Classes Order had been
made under that Act in 1948. It was revoked and replaced by the Use
Classes Order 1950, which is the effective order for the purposes of these
appeals. (In its turn it has been replaced by subsequent orders.) Where E
a building or other land is used for a purpose of any class specified in
the Schedule to the order, its use for any other purpose of the same
class shall not be deemed to involve development of the land: (article
3 (1)). The Schedule specifies, amongst other classes. " Class X—Use
as a wholesale warehouse or repository for any purpose."
The purpose of the Use Classes Order becomes evident when one p
reaches section 23 (1) of the Act, which provides that subject to the
provisions of the section " planning permission is required for the carry­
ing out of any development of land." Since a change of use within a
class is not deemed to involve development, planning permission for the
change of use is not required. The effect, therefore, of Class X is that
premises previously used as a repository for any purpose may be used as
a wholesale warehouse; and vice versa. In neither case does the law O
deem any development'to be involved or require the grant of planning
permission. A comparison of the Order of 1950 with that of 1948, which
it revoked, is, in my judgment, permissible and instructive. The Order
of 1950 amalgamated certain use classes to be found in the earlier Order,
thus permitting a wider range of changes of use to take place without
the requirement of planning permission. The Order of 1948 placed use JJ
as a wholesale warehouse in Class X and use as a repository in. Class XI:
it also included definitions of " wholesale warehouse " and " repository."
The Order of 1950 has no definition of either term: but, since the

613
A.C. Newbury Council v. Environment Sec. (H.L.(E.)) Lord Scarman
purpose of the Order is the amalgamation of certain.use classes to be
found in the Order of 1948, it is legitimate, for the purpose of construing
the Order, to note the meaning of these terms in the two use classes
which the Order of 1950 has amalgamated into one (the new Class X).
The Order of 1948 provided that " wholesale warehouse " means " a
building where business, principally of a wholesale nature, is transacted,"
and that " repository" means " a building . . . where storage is the
B principal use and where no business is transacted other than incidentally
to such storage."
It is common ground that the company uses the hangars as wholesale
warehouses. If, therefore, the lawful prior use was that of a " repository
for any purpose," planning permission was unnecessary: for there would
be an existing use right entitling the company to use them as wholesale
warehouses.
^ It is also common ground (though at one time the council was dis­
posed to deny it) that the Crown use, which began in 1947 and with
two " service " breaks continued until 1959, was lawful. The inspector
has found and the Minister has accepted that this use was " for storage
purposes." In other words, the hangars were buildings in respect of
which there had been lawfully established an existing storage use prior
D to the arrival of the company on site.
The sole issue, therefore, is as to the meaning to be given to the
words " repository for any purpose " where they appear in the Order.
The company's submission is that " repository " is (as defined in the Order
of 1948) a building used for storage, and that Class X includes such
use "for any purpose." The Minister and the council submit that the
context requires that a limitation be placed on the words " for any
E purpose," namely a limitation to the purposes of a storage business.
This construction found favour with the Divisional Court and the
Court of Appeal. Reliance was placed on G. Percy Trentham Ltd. v.
Gloucestershire County Council [1966] 1 W.L.R. 506, a decision of the
Court of Appeal. In that case the Court of Appeal reached the un­
surprising conclusion that use as a farm shed was not use as a repository,
p Diplock L.J. commenting that nowhere, except in a court of law, did he
think it would be argued " with gravity " that ordinary farm buildings
are properly described as " repositories." In his judgment, however,
Lord Denning M.R. essayed a definition of repository. He said, at
p. 512: " A repository means a place where goods are stored away, to
be kept for the sake of keeping them safe, as part of a storage business."
The Court of Appeal applied this definition in this case. After hearing
G Mr. Widdicombe's submissions for the company (no doubt very persuasive,
if his argument in this House be any guide), the Master of the Rolls
felt that his " one answer" must be " a matter of impression." So
far, I agree. But then he added [1978] 1 W.L.R. 1241, 1250: " My
opinion is that no one conversant with the English language would
dream of calling these hangars a ' repository' when filled with fire-pumps
JJ or synthetic rubber." I cannot, with respect, agree. I find that neither
the standard English dictionaries nor my experience of the English
language as writer and student suggest that the qualification " as part
of a storage business " is to be embodied in the ordinary meaning of the

614
Lord Scarman Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
word "repository." The primary and literal meaning of "repository" .
is what anyone acquainted with its Latin origin would expect—a place
or receptacle where things are stored. But there is also an old established
secondary meaning " A place where things are kept or offered for sale;
a warehouse, store, shop, mart": Shorter Oxford English Dictionary,
3rd ed., p. 1707, and repeated in subsequent editions. But this meaning
is not limited to use "as part of a storage business." It embraces any
business use, as distinct, for example, from a repository used for domestic, B
museum, or academic purposes. Two questions, therefore, arise. First,
is " repository" used in the Order in its primary, or literal, sense?
Secondly, if not, is the term " use as a repository " a reference to a general
business use or to a use limited to that of a storage business?
The language of the class is wide enough to permit the primary, or
literal, meaning. But the context, I think, makes the secondary, but c
well established, meaning the more likely. In this respect, I note that
Havers J. in Horwitzv. Rowson [1960] 1 W.L.R. 803, 810, denned "re­
pository " 'as a building wherein goods were kept in the course of trade or
business. Although the various classes scheduled to the Order make
strange reading and include some oddly assorted bedfellows, they are
classes. The Order being part of the apparatus of planning control, I
look for a planning link between the several members of each class: D
and this is not difficult to ascertain, though the linkage is looser in some
classes than in others. So far as Class X is concerned, if each of the
two specified uses is a business use, the planning link between them is
established without doing any violence to the English language. But I
cannot go the step further which was taken by Lord Denning M.R. in
the Trent ham case [1966] 1 W.L.R. 506 and construe the business use g
as limited to that of a storage business. The words " for any purpose,"
though consistent with a general limitation of the class to business use,
negative the possibility of limiting use as a repository to.a specific type
of business. The express limitation of " wholesale " upon the warehouse
use is to be contrasted with the express extension of the repository use
to. such use " for any purpose." p
The question for decision is, therefore, whether the Crown use of
the.hangars for storage purposes between 1947 and 1959 was a business
use. .'The word "business" is apt to include official or governmental
business as well as commercial business. The relevance of business to
planning is that it is associated with a certain character of development
and a certain level of activity upon and adjacent to the land, e.g., the
type of buildings and the level of traffic movement. As such, it matters G
not whether the Crown is storing goods in the hangars for the purposes
of; public business or a wholesaler for his private business purposes or
any. other commercial enterprise for its business purposes. To quote the
Order of 1948, " where storage is the principal use and where no business
is transacted other than incidentally to such storage," the nature or
purpose of the business for which the repository is used is immaterial JJ
for planning purposes. The one essential limitation, which is to be
compared with the " wholesale " limitation upon warehouse use, is implicit
in the word "repository," namely, that the principal use is storage. So

615
A.C. Newbury Council v. Environment Sec. (H.L.(E.)) Lord Scarman
understood, Class X does embrace the Home Office and Ministry of
Food use. Mr. Boydell, for the council, sought to avoid this con­
clusion by submitting—correctly—that not all uses of land are included
in the Use Classes Order. He urged' upon the House the proposition
that the Crown use was sui generis, (in English, a distinct, unique use)
and not covered by Class' X. I do not accept his proposition. Properly
considered, the Crown use was as much a storage use for.its business as
B would be that of any commercial enterprise for its business.
Accordingly, I think the Trentham limitation, " as part of a storage
business," was erroneous and that Class X is wide enough to include
the Crown use in this case. The Crown did, and the company does, use
the hangars for storage, each for the purposes of its business: and no
business is transacted on the site save that which is incidental to storage.
.-, My conclusion is, therefore, that the planning permission obtained by
the company in 1962 was unnecessary. There was an existing use right
by virtue of Class X of the Use Classes Order.

The estoppel point (" Blowing hot and cold ")
The Court of Appeal did not have to decide whether the company by
taking up and then exercising the 1962 planning permission had estopped
D itself from relying on its existing use right; for the court was unanimous
that no such right existed. But, as your Lordships are agreed that plan­
ning permission was unnecessary, the point does now arise for decision.
In the Court of Appeal, Lawton L.J. found the point attractive, but,
since it did not arise, expressed no final opinion. Browne L.J. did not
find the point attractive. He said [1978] 1 W.L.R. 1241, 1256:
E " I will only say that as at present advised I am afraid that I do not
agree with' Lord Denning M.R. on this point, except where the
circumstances are as in Prossor v. Minister of Housing and Local
Government, 67 L.G.R. 109 and the cases which have followed and
applied that decision—viz. where a new planning unit—and indeed
in those cases a new physical unit—has been created."
p
Lord Denning M.R., however, was prepared to lay down a broad general
principle. He said, at p. 1250: ..
" Blowing hot and cold. In case I am wrong about ' repository'
I must turn to the final point, which is this: seeing that I.S.R.
accepted the grant of planning permission in 1962 (subject to the
condition of removal), can they now turn round and say that they
Q did not need planning permission at all? Being entitled, as they
say, to use the hangars for storing rubber without any permission
at all. Mr. Widdicombe submitted that they could. He referred
to Mounsdon V. Weymouth and Melcombe Regis Borough Council
[1960] 1 Q.B. 645 and East Barnet Urban District Council v. British
Transport Commission [1962] 2 Q.B. 484. But Mr. Boydell on the
JJ other side referred to Brayhead {Ascot) Ltd. v. Berkshire County
Council [1964] 2 Q.B. 303, 315; Prossor v. Minister of Housing and
Local Government, 67 L.G.R. 109; Gray v. Minister of Housing
and Local Government, 68 L.G.R. 15; Petticoat Lane Rentals Ltd.

616
Lord Scarman Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
v. Secretary of State for the. Environment [1971] 1 W.L.R. 1112
and Kingston-upon-Thames Royal London Borough Council v.
Secretary of State for the Environment [1973] 1 W.L.R. 1549,
1552. To my mind the maxim of law and equity applies here: Qui
sentit commodum sentire debet et onus. He who takes the benefit
must accept it with the burdens that go with it. It has been applied
recently in Halsall v. Brizell [1957] Ch. 169 and E. R. Ives Invest­
ment Ltd. v. High [1967] 2 Q.B. 379, 394. It is an instance of the B
general principle of equity considered in Crabb v. A run District
Council [1976] Ch. 179, 187-188 and it is, in my view, particularly
applicable in planning cases. At any rate in those cases; where the
grant of planning permission opens a new chapter in the planning
history of the site."
His last sentence is an echo of Prossor's case, 67 L.G.R. 109, which, I C
think, was correctly decided. But, as I shall endeavour to show, it does
not follow from the correctness of Prossor's case that " the general
principle " of equitable estoppel is applicable to planning cases.
As every law student who has read the opening chapters of Snell's
Principles of Equity (now in its 27th ed. (1973) ), knows, equity, as a body
of law ancillary to the common law, developed so as to provide a J-J
protection for interests in property which was more effective than the
remedies available at law. The Court of Chancery acted on the con­
science of the legal owner of property. Equitable interests were strictly
not proprietary in character, but rights in personam. Although they
have developed a proprietary character, they are not enforceable against
all the world. The purchaser for value without notice is not bound.
In the field of property law, equity is a potent protection of private E
rights, operating upon the conscience of those who have notice of their
existence. But this is no reason for extending it into the public law of
planning control, which binds everyone.
The case law does not support Lord Denning's view. In Swallow
and Pearson v. Middlesex County Council [1953] 1 W.L.R. 422 Parker J.
refused to hold that the plaintiffs, having treated an enforcement notice p
as a good notice, were estopped from denying its validity. He said, at
p. 426: " . . . no person can waive a provision or a requirement of the
law which is not solely for his benefit but which is for the public benefit."
In Mounsdon v.. Weymouth and Melcombe Regis Borough Council
[1960] 1 Q.B. 645 a Divisional Court, which included Lord Parker C.J.,
referred to " the principle " applied in Swallow's case with approval and
held that appellants who had obtained a conditional planning permission G
were not precluded from arguing that it was unnecessary.
Although the point was not argued, this House in Pyx Granite Co.
Ltd. v. Ministry of Housing and Local Government [1960] A.C. 260
implicitly accepted Lord Parker's view: for in that case the appellant
company, though it had obtained a conditional planning permission,
was granted a declaration that their development was authorised by the JJ
Malvern Hills Act 1924 and so did not require permission.
Mr. Widdicombe, for the appellants, referred us to other cases to
the same effect; notably East Barnet Urban District Council v. British

617
A.C. Newbury Council v. Environment Sec. (H.L.(E.)) Lord Scarman
Transport Commission [1962] 2 Q.B. 484, in which Lord Parker C.J.
was a member of the court.
My Lords, I agree with the view so consistently expressed by Lord
Parker C.J. that it is wrong to introduce into public administrative
law concepts such as equitable estoppel which are essentially aids to the
doing of justice in private law. I forbear to discuss the cases upon
which Lord Denning M.R. founded his view to the contrary because
B Mr. Boydell for the respondents did not seek to rely upon them.
Indeed Mr. Boydell based his argument on Prossor's case, 67 L.G.R.
109, the principle of which is independent of any equitable doctrine.
Suffice it to say of the authorities mentioned by Lord Denning in the
passage which I have quoted that, if and in so far as they suggest (and
I do not think that they do) that equitable estoppel has a place in the
r law of planning control, they are incorrect in law and should not be
followed.
In Prossor's case Lord Parker C.J. enunciated a genuine planning
principle. The appellant's predecessor in title had obtained planning
permission for the rebuilding of a petrol service station on a by-pass.
It was subject to a condition that no retail sales other than the sale of
motor accessories should be carried out on the site. The appellant
D displayed on the site second-hand cars for sale. Being served with an
enforcement notice, he claimed an existing use right. Though it was
held that he had not established an existing use right, the Divisional
Court also held that, by reason of the exercise of the planning permission
to rebuild, the appellant was bound by the condition attached to the
permission.
_ The case has nothing whatever to do with equitable estoppel. The
permission was for a new operational development of the site, i.e. the
rebuilding. Lord Parker C.J. put it thus, at p. 113:
" The planning history of this site, as it were, seems to me to begin
afresh on April 4, 1964, with the grant of this permission, a
permission which was taken, up and used. . . . "
p Prossor's case has been followed in a number of cases. Their effect is
accurately summarised by Browne L.J. in the passage from his judgment
which I have already quoted. Prossor's case was approved by the Court
of Appeal in Gray v. Minister of Housing and Local Government, 68
L.G.R. 15 and by the Divisional Court (Lord Parker C.J. .presiding) in
Petticoat Lane Rentals Ltd. v. Secretary of State for the Environment
[1971] 1 W.L.R. 1112. It has never, however, been applied—so far as
G the researches of counsel have been able to ascertain—to a change of
use case. In every case the permitted development which has been held
to begin a new planning history has been operational in character: i.e.,
it altered the physical nature of the land by building, mining, or other
engineering works.
Mr. Widdicombe for the company submitted at the outset of his
H argument—and at that stage he was supported by Mr. Newey for the
Minister—that the principle in Prossor's case, 67 L.G.R. 109, is not
applicable to a " change of use " case, where there is no building or
other physical operation covered by the planning permission. Clearly it

618
Lord Scarman Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
will; be much more difficult to establish the creation of a new planning .
unit or the beginning of a new chapter of planning history where the
unnecessary permission which has been granted subject to conditions
purports to authorise only a change of use. But such cases can exist,
as at a later stage in the argument counsel for the Minister was able
to show: e.g., where permission is granted to change the use of residential
premises in single occupation to a multi-occupation use. There is in
such a case a wholly new departure, a new chapter of planning history. B
It would be a negation of sound planning if the conditions attached to
the multi-occupation use could be avoided merely because prior to such
use the premises had the benefit of an existing residential use in single
occupation. I conclude, therefore, that Prossor's principle is of general
application where it can be shown that a new planning unit has been
brought into.existence by the grant and exercise of a new planning _,
permission. But, where Prossor's case does not apply, the grant, of an
unnecessary planning permission does not preclude a landowner from
relying on an existing use right.
Upon the facts of this case, it is, however, not possible to apply the
Prossor principle. Planning-wise, upon the facts as found by the inspector
and accepted by the Minister, there was no departure from the previous
use substantial enough to justify the inference that a new unit had been D
created or a new planning history begun. I, therefore, reject the sub­
mission to the contrary made on behalf of the council.

The validity of the condition
My Lords, it is strictly unnecessary for me to express a view on the
validity of the condition. But the House has heard full argument on JJ
the point, and I have reached the clear conclusion that the Minister's
decision that the condition was invalid cannot be said to be incorrect
in law. I think it right, therefore, to state briefly the reasons for my
conclusion.
The Divisional Court agreed with the Minister. But the Court of
Appeal upheld the enforcement notice, ruling that the condition for the p
removal of the hangars was valid. In their view, it fairly and reasonably
related to the permitted development, i.e. the temporary use of the
hangars as warehouses for the storage of synthetic rubber.
The Court of Appeal was entitled to reverse the Minister only if he
could be shown to have made an error in law: section 246 of the Act.
The law is, I think, well settled save for one small area of doubt. Mr.
Widdicombe, opening the appeal, suggested that the law requires three G
tests of validity, all of which, he submitted, must be satisfied. Mr. Newey
for the Minister agreed with him. Mr. Boydell for the council suggested
that there were really only two. The difference between them is semantic
not substantial. The three tests suggested are: (1) The condition must
fairly and reasonably relate to the provisions of the development plan
and to planning considerations affecting the land, (2) it must fairly and JJ
reasonably relate to the permitted development, and (3) it must be such
as; a reasonable planning authority, duly appreciating its statutory duties,
could have properly imposed. As Mr. Boydell said, test (3) is almost

619
A.C. Newbury Council v. Environment Sec. (H.L.(E.) ) Lord Scarman
invariably wrapped up in the first two: but it is possible, though unusual,
that a condition could in an exceptional case satisfy the first two tests
but fail the third.
My Lords, I accept the appellant's submission that there are these
three tests. The legal authority for the tests is to be found in the statute
and its judicial interpretation. Section 29 (1) of the Act, substantially
re-enacting section 14 (1) of the Act of 1947, provides as .follows:
B " (1) Subject to the provisions of sections 26 to 28 of this Act, and
to the following provisions of this Act, where an application is made
to a local planning authority for planning permission, that authority,
in dealing with the application, shall have regard to the provisions
of the development plan, so far as material to the application, and
to any other material considerations, and—(a) subject to sections 41,
Q 42, 70 and 77 to 80 of this Act, may grant planning permission,
either unconditionally or subject to such conditions as they think
fit; or (Z?) may refuse planning permission."
Though the subsection speaks of " such conditions as they think fit," its
opening words impose a limitation on the powers of the local planning
authority including the discretionary power to impose conditions. In
p dealing with the application for permission, it shall have regard to the
development plan ." so far as material to the application, and to any
other material considerations." I construe " material considerations " in
the context of the subsection as a reference to planning considerations.
The subsection therefore expressly mentions the first two tests. The
third test arises from the application to the planning law of the reason­
ableness test as enunciated by Lord Greene M.R. in Associated Provincial
E Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223.
This view of the subsection and its predecessor has been accepted
by a line of authoritative judicial decisions, the most notable of which
are Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government
when in the Court of Appeal [1958] 1 Q.B. 554 and Fawcett- Properties
Ltd. v. Buckingham County Council [1961] A.C. 636. In the Pyx
P Granite case at p. 572 Lord Denning said that " conditions . . . must
fairly and reasonably relate to the permitted development." In
Fawcett's case this House, in effect, adopted the three tests. Lord Cohen
(pp. 660, 662) considered that the relevant questions which the court
must answer were, as Mr. Megarry Q.C. had submitted, whether the
scope of the condition was " unrelated to the policy declared. in the
outline plan or to any other sensible planning policy." Lord Denning
G repeated his formula in the Pyx Granite case, adding, at p. 678, with
a reference to the Wednesbury case, that "they [i.e. the local planning
authority] must produce a result which does not offend against common
sense." Lord Jenkins, at pp. 684-685, quoted Lord Denning's formula­
tion in the Pyx Granite case with approval.
Fawcett's case [1961] A.C. 636 renders it unnecessary to cite further
IT authority, though there is plenty in the books, to establish the three tests.
They have been recognised and adopted by the courts and this House.
The small area of doubt which remains is whether a condition for
the removal of existing buildings can ever satisfy the tests if the

620
Lord Scannan Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
permitted development is limited to a change of use. The doubt is .
whether in such a case the condition could ever be said fairly and
reasonably to relate to the permitted development. Indeed, the Court
of Appeal has interpreted the Minister's decision as based on the view
that in law no such condition can be imposed upon a " change of use
permission." Browne L.J. put their view of the Minister's decision
succinctly... [1978] 1 W.L.R. 1241, 1253: " . . . it is a holding of law that
such a condition can never [emphasis supplied] be valid. . . . " B
My Lords, if the Minister really did base his decision upon this
view of the law, I would agree with the Court of Appeal that he erred
in law. The point is not covered by any clear authority. But I would
reject such a view of the law as being wrong in principle. First, the
acceptance of an inflexible rule would, so far as it extends, preclude
the application in change of use cases of the three recognised tests of c
validity. There would be substituted a rule of thumb for the exercise
of the Minister's judgment upon the facts of the appeal.
Secondly, so various are the circumstances and interests affected by
a planning permission that I would think it wrong, in the absence
of an express statutory prohibition, to assert that, as a matter of law,
a condition requiring the removal of buildings already in existence can
never fairly or reasonably relate to a permission limited to a change of D
use. And the statute contains no express prohibition: for section 29 (1)
leaves the imposition of conditions to the discretion of the local planning
authority (and to the Minister on appeal). The validity of a condition
must, therefore, depend in all cases upon the application of the three
tests to the particular facts. If the permitted change of use is unlimited
in time, it may well be fair and reasonable to require the removal of F
some existing buildings as a condition of the permission. But, if the
permitted change of use should be for a limited period, the reasonable­
ness of the condition may be more difficult to establish. In either case,
the planning history, the situation of the land, the circumstances of
all those interested in the land, and the existence of other statutory
powers to achieve the same planning purpose would be relevant con­
siderations. F
In his decision letter the Minister gave the following reasons for
holding the condition invalid. He said, in paragraph 8:
" It is considered however in the circumstances of this case where
planning permission was sought merely for a change of use of
existing substantial buildings, that a condition requiring the removal
of those buildings after the expiration of a specified number of Q
years was not sufficiently related to the change of use in respect
of which the planning permission was granted and was unreason­
able. It is therefore concluded that the condition was invalid."
These words do not suggest to me that the Minister committed him­
self to the view of the law which the Court of Appeal has attributed to
him. He noted that permission was sought "merely for a change of JJ
use of existing substantial buildings": he considered that the removal
condition was " not sufficiently related "to the change of use " and was
unreasonable. With the greatest respect, the Court of Appeal has

621
A.C. Newbury Council v. Environment Sec. (H.L.(E.) ) Lord Scarman
. misinterpreted the Minister's reasons. He did not hold that a condition
for removal of buildings attached to a " change of use permission "
could never be valid. He held that in the circumstances of this case
the condition was not sufficiently related to the permitted change of
use. The condition certainly related to the development plan and to
planning considerations and so satisfied the first test. But did it
satisfy the second test? Was it fairly and reasonably related to
B the permitted development, i.e. a temporary change of use? This
was for the Minister in the light of all the circumstances to decide;
and he decided it. I would comment only that the Minister, being
the ultimate authority on planning questions arising in the enforcement
of planning control, is the appropriate authority to determine whether
a condition " sufficiently," i.e. fairly and reasonably, relates to the per-
mitted development.
The Court of Appeal was led into error by their belief that the
Minister based his conclusion upon a statement to be found in the
Ministry of Housing and Local Government Circular 5/68. Lord
Denning M.R. put it thus [1978] 1 W.L.R. 1241, 1247:
" The present view of the ministry is contained in a circular which
was issued in 1968 and is numbered 5/68, ' The Use of Conditions
D in Planning Permissions.' It is to the effect that, when an
applicant applies for permission to change the use of an existing
building, the local planning authority, when granting permission,
can impose a condition limiting the period of time during which
the building may be so used: but cannot impose a condition
requiring the building to be removed at the end of that time. The
£ crucial sentence in the circular is: ' A condition requiring the
removal of an existing building, whether on the application site
or not, will only be reasonable if the need for that removal springs
directly from the fact that a new building is to be erected.'"
I agree that the circular has no legal effect and that, if in the sentence
quoted it purports to lay down a rule of law, it is wrong. But how
p can it be said, as Lord Denning M.R. said, that this sentence in the
circular represents " the present view of the Ministry upon the law "?
The answer has to be—only if the Minister's letter of decision is to be
read as saying so. But, my Lords, it says nothing of the sort.
I conclude, therefore, that the Minister made no error of law.
That being so, his view—that a condition requiring the removal of
existing substantial buildings was not sufficiently related to the
G temporary change of use for which permission was granted in this
case—is unappealable: see section 246 of the Act.
My Lords, for all these reasons I would allow the appeals. I agree
with the order for costs proposed by my noble and learned friend
Viscount Dilhorne.
H LORD LANE. My Lords, R.A.F. Station Membury was a wartime
airfield built on requisitioned farming land. There were, apart from
the usual concrete runways, perimeter tracks, hardstandings and so on,
two hangars in which repair and maintenance of aircraft could be

622
Lord Lane Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
carried out. The last aeroplane left Membury in about 1947. The
hangars have since then had a chequered history. They are now
(albeit functionally useful) an eyesore in otherwise pleasant countryside
and, if aesthetic considerations were the only criterion, ought to be
removed. The local planning authority (now Newbury District Council)
contend that that is also the position in law, and the Court of Appeal
have upheld that contention. They have decided that the present
owners, the International Synthetic Rubber Ltd. (I.S.R.) are in law obliged B
to remove the hangars.
The history of the site, so far as it is known and material, is as
follows. From 1947 to 1953 the hangars were used as a food storage
depot by the Ministry of Agriculture, Fisheries and Food. For brief
periods in 1953 the U.S.A.F. and in 1954 the R.A.F. used the airfield
for purposes which are not known. From 1955 to 1959 the Home ^
Office stored civil defence vehicles, fire-pumps and suchlike in the
hangars. In 1959 planning permission was given for the use of the
hangars for storage of agricultural products, subject to the condition
that the hangars should be removed by a date later extended to
December 31, 1970. In May 1962 permission was granted to I.S.R. as
follows: " Use of two hangars on Membury Airfield as warehouses."
That was qualified by two conditions: D
" (1) The buildings shall be removed at the expiration of the period
ending December 31, 1972. (2) The use shall be confined to storage
and no materials shall be stored which give rise to offence by
reason of smell." For this reason: " (1) To accord with the local
planning authority's policy regarding industrial development in
rural areas. (2) To safeguard the amenities of the area." £
The freehold title of the site was vested in the Crown until 1961.
On November 30, 1961, the site was sold to the former owner and then
leased back to the Crown for a period of 40 years. In July 1962 (i.e.
after receipt of the permission) the lease was assigned and the hangars
were sold to I.S.R. The terms of the particulars of sale imply, sur­
prisingly, that the hangars were being treated as chattels, distinct from p
the realty. Nothing now turns on that point because the parties are all
agreed that the hangars were and are, as one would expect, part of the
realty.
Since then I.S.R. has used the hangars continuously for the storage
of synthetic rubber." In November 1970 they applied for a postpone­
ment of the removal date to 2002. That was refused. By December
31, 1972, I.S.R. had taken no steps to comply with the condition by G
removing the hangars. In November 1973, therefore, the local autho­
rity served an enforcement notice. I.S.R. appealed under section 88 of
the Town and Country Planning Act 1971. An inquiry was held in
January 1975. The Minister's decision letter was published in July of
that year. He allowed the appeal on the grounds that the condition
imposed by the local authority was ultra vires and void. He further JJ
decided that the condition could not properly be severed from the per­
mission and that the planning permission as a whole was void. If this
conclusion is right, there is nothing at present to stop I.S.R. continuing

623
A.C. Newbury Council v. Environment Sec. (H.L.(E.)) Lord Lane
. to use the hangars as warehouses. This is because they started to
use them as warehouses before 1963, and section 87 (1) of the Act
of 1971 provides them in these circumstances with immunity. The
Minister's view of the matter was upheld by the Divisional Court. The
Court of Appeal, however, held that the condition was not ultra vires,
that the enforcement notice was lawful and should be obeyed.
The issues are these. First, was any planning permission necessary
B in 1962, that is, was there an existing use which absolved I.S.R. from
the need for permission to use the hangars as warehouses? Secondly,
if such was the case, are I.S.R. debarred from asserting that that is so?
This has been referred to as the " blowing hot and cold " point. Thirdly,
was the condition requiring the removal of the hangars outside the
proper powers of the local planning authority and therefore void?
If the first two questions are decided in favour of the appellants, the
^ third, although remaining important, would not affect the outcome
whichever way it was decided.
Existing use
The use which I.S.R. assert was sufficient to render planning per­
mission unnecessary in 1962 was the Home Office's storage of civil
D vehicles from 1955 to 1959. That is the basis on which the case has
been fought throughout.
The Town and Country Planning (Use Classes) Order 1950 provides
by paragraph 3 (1) as follows:
" Where a building . . . is used for a purpose of any class specified
in the Schedule to this Order, the use of such building . . . for any
£ other purpose of the same class shall not be deemed for the purposes
of the Act to involve development of the land."
Class X of the Schedule is " Use as a wholesale warehouse or repository
for any purpose."
The present use is undoubtedly as a wholesale warehouse. If the
previous use was as a " repository for any purpose," it follows that no
p permission was necessary because permission is only required for deve­
lopment and if the change was only from one Class X use to another
there was ho development.
All those who have hitherto considered the matter have come to the
conclusion that the use by the Home Office as a store for Civil Defence
vehicles was not use as a " repository." That being so, one naturally
hesitates to differ, but I fear I must. The first meaning of the word
^ given in the Shorter Oxford English Dictionary is " A vessel, receptacle,
chamber, etc., in which things are, or may be placed, deposited or
stored." The hangars fell plainly within this definition. The Court of
Appeal held that a repository means " a place where goods are stored
away, to be kept for the sake of keeping them safe, as part of a storage
business." If those last six words properly form part of the definition
U then the Home Office use did not constitute the building a repository.
But are those words justified? Their origin is probably to be found in a
judgment of Havers J. in Horwitz v. Rowson [1960] 1 W.L.R. 803,
810 "'Repository,' I think, means a building wherein goods are kept

624
Lord Lane Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
or stored, and I think it must be in the course of a trade or business."
No reasons are given for this conclusion. The same view was expressed
(obiter) by Lord Denning M.R. in G. Percy Trent ham Ltd. v. Glouces­
tershire County Council [1966] 1 W.L.R. 506, 512 and reiterated by
him in the present case. As to the other point of view, exemplified by
the Oxford English Dictionary, Lord Denning M.R. said this [1978]
1 W.L.R. 1241, 1249-1250:
" The one answer I can give to this argument is that it is a matter B
of impression—depending on the meaning one gives to the word
' repository' in one's own vocabulary. My opinion is that no one
conversant with the English language would dream of calling
these hangars a ' repository' when filled with fire-pumps or
synthetic rubber."
; C
No doubt there are few people, however conversant with the English
language, who would use the word " repository " at all. The question
is, what does it mean in the Order of 1950? The word " store " might
perhaps have been employed, but that would have led to confusion
because the word is now commonly used to mean retail shop (e.g.,
" village store "). To my mind repository simply means a storage place.
If there were any real doubt about the matter it would, I think, be D
resolved by the words which follow, namely " for any purpose." It
is difficult to see how those words can possibly mean " for any purpose
provided it is a business purpose." That is what the contention of the
local authority entails. In my opinion I.S.R. had an existing use
right under Class X and no planning permission was necessary.
E
Blowing hot and cold
The local authority contends further that even if the use made of
the hangars by the Home Office fell within Class X of the Order of 1950,
nevertheless it is not open to I.S.R. to rely on that existing use by
reason of their applying for, receiving and using, the planning permission
of May 1962. In short they cannot now assert that no planning per­
mission was necessary in the face of their 1962 actions. &
This contention has been put in a number of different ways. Lord
Denning M.R. put it thus [1978] 1 W.L.R. 1241, 1250-1251:
" The truth is that, back in 1962, they had two inconsistent courses
open to them. One was to apply for a grant of planning permis­
sion; the other was to rely on any existing use rights that might
be attached to the site. Once they opted for planning permission— "
and accepted it without objection—they had made their bed and
must lie on it. No doubt they did not know of the past history,
but that was only because they did not choose to rely on it. They
should not be allowed to bring it up again now."
Lawton L.J. found it unnecessary to decide the point. Browne L.J. JJ
felt unable to agree with the dictum of the Master of the Rolls on this
aspect of the case, except insofar as it applies to circumstances where
a new planning unit has been created. Nor does' Mr. Boydell seek to

625
A.C. Newbury Council v. Environment Sec. (H.L.(E.)) Lord Lane
. argue that the doctrine is of any more than narrow application. He
contends, on the strength primarily of the decisions in Prossor v.
Minister of Housing and Local Government, 67 L.G.R. 109 and
Leighton and Newman Car Sales Ltd. v. Secretary of State for the
Environment, 32 P. & C.R. 1. that where planning permission is " sought,
granted and implemented " (as he puts it) the planning history starts
afresh and any previous existing use must be ignored. Alternatively
B the planning history starts afresh where " the acceptance and imple­
mentation " of the planning permission is inconsistent with reliance
on earlier existing right. It is inconsistent here, because the permission
together with the condition as to removal of the hangars cannot live
with the existing use right. In Prossor's case, 67 L.G.R. 109, the local
planning authority granted permission for the rebuilding of a petrol
station with a condition prohibiting any retail sales other than of motor
accessories. The appellant nevertheless displayed second-hand motor
cars on the site. An enforcement notice was served but the appellant
claimed that the site had existing use rights for the sale of second-hand
cars. The Minister upheld the enforcement notice. On appeal to the
Divisional Court Lord Parker C.J. had this to say, at p. 113:
" . . . assuming that there was at all material times prior to April 1964
*-* an existing use right running on this land for the display and sale
of motor cars, yet by adopting the permission granted in April
1964 the appellant's predecessor, as it seems to me, gave up any
possible existing use rights in that regard which he may have had.
The planning history of this site . . . seems to me to begin afresh
on April 4, 1964 with the grant of this permission, a permission
™ which was taken up and used, and the sole question here is: has.
there been a breach of that condition? "
The facts in Leighton and Newman Car Sales Ltd. v. Secretary of State
for the Environment, 32 P. & C.R. 1 were very similar to those in
Prossor's case. Browne L.J. in delivering the judgment of the court
said, at p. 10:
" Mr. Payton made some criticism of Prossor v. Minister of
Housing and Local Government . . . but . . . there is nothing to
throw any doubt on the actual decision in that case, which was that
where (as in the present case) there has been an application for a
new planning permission and a grant of permission subject to an
Q express condition prohibiting a previous established use, and the
new permission has been acted on, the previous use is extinguished."
Taken out of context, those words seem to widen the scope of Prossor's
case. They must, however, be read.against the facts of the case which
show that this, was an extensive development, involving not only the
original site but the addition of two adjoining sites and the creation
JJ of access to the highway from the two new sites. It was, in short,
the classic Prossor situation of a new planning unit being born.
The other cases relied on by Mr. Boydell all tell the same story.
Gray v. Minister of Housing and Local Government, 68 L.G.R. 15 was

.626
Lord Lane Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
another rebuilding case. Petticoat Lane Rentals Ltd. v. Secretary of State .
for the Environment [1971] 1 W.L.R. 1112 concerned planning permis­
sion to erect a building upon an area of open land, a cleared bomb-site.
Widgery L.J. in the course of his judgment in the Divisional Court
•said at p. 1117:
" For my part I also think that it [Prossor's case] was entirely
correctly decided, but I think that in extending and applying it we
should tread warily and allow our experience to guide us as that
experience is obtained . . . but I am quite confident that the
principle of Prossor's case can be applied where, as here, one has
a clear area of land subsequently developed by the erection of a
building over the whole of that land. Where that happens . . . one
gets an entirely new planning unit created by the new building.
The land as such is merged in that new building and a new planning
unit with no planning history is achieved."
Those words seem to me to express precisely and accurately the
concept underlying Prossor's case, 67 L.G.R. 109. The holder of
planning permission will not be allowed to rely on any easting use
rights if the effect of the permission when acted on has been to bring ~
one phase of the planning history of the site to an end and to start a
new one. It may not always be as easy as it was in Petticoat Lane
Rentals to say whether that has happened. There will no doubt be
borderline cases difficult to decide, but that does not affect the principle.
We were asked by Mr. Newey to say that the principle can only apply
where the permission granted is to build or rebuild or the like and can
never apply to cases where the permission is simply to change the use. E
I do not consider that any such limitation would be proper. It is not
the reason for the break in planning history which is important. It
is the existence of the break itself, whatever the reasons for it may
■have been. No doubt it will usually be a case of permission to build
which will attract the doctrine, but I myself would not altogether
rule out the possibility that in some circumstances the permitted change F
•of use might be so radical as to fulfil the criteria of Prossor's case.
In the present case there is no such break in the history. The
change of use from repository to wholesale warehouse could not by
any stretch of the imagination be said to have started a new planning
history or created a new planning unit. Indeed no one has so con­
tended. I.S.R. succeed on this point.
G
Was the condition void?
The Town and Country Planning Act provides:
" 29 (1) . . . where an application is made to a local planning
authority for planning permission, that authority, in dealing with
the application, shall have regard to the provisions of the develop- „
ment plan . . . and to any other material considerations, and—(a)
. . . may grant planning permission, either unconditionally or
subject to such conditions as they think fit. . . .

627
A.C. Newbury Council v. Environment Sec. (H.L.(E.)) Lord Lane
. " 30 (1) Without prejudice to the generality of section 29 (1) . . .
conditions may be imposed on the grant of planning permission there­
under—. . .(h) for requiring the removal of any buildings or works
authorised by the permission, or the discontinuance of any use of
land so authorised, at the end of a specified period . . . "
Despite the breadth of the words " subject to such conditions as
_ they think fit," subsequent decisions have shown that to come within
the ambit of the Act and therefore to be intra vires and valid a condi­
tion must fulfil the following three conditions: (1) it must be imposed
for a planning purpose; (2) it must fairly and reasonably relate to the
development for which permission is being given; (3) it must be reason­
able; that is to say, it must be a condition which a reasonable local
authority properly advised might impose. The first test arises directly
C from the wording of the material sections of the Act. The second test
comes from the same sections as interpreted by Lord Denning in Pyx
Granite Co. Ltd. v. Ministry of Housing and Local Government [1958]
1 Q.B. 554 and approved in this House by Lord Keith of Avonholm and
Lord Jenkins in Fawcett Properties Ltd. v. Buckingham County Council
[1961] A.C. 636 and by Lord Reid and Lord Guest in Mixnam's Proper-
ties Ltd. v. Chertsey Urban District Council [1965] A.C. 735. The
third test is probably derived from Associated Provincial Picture
Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, and
ensures that the Minister, if he is asked to review the actions of a
local authority, may, even if tests (1) and (2) are quite satisfied, never­
theless allow an appeal on much broader grounds, if the effect of the
condition would be to impose an obviously unreasonable burden upon
E the appellant. Decisions of the local planning authority should not,
however, lightly be set aside on this ground. As Lord Guest said in
Mixnam's Properties Ltd. v. Chertsey Urban District Council [1965]
A.C. 735, 760-761:
" There should, however, in my view be a benevolent interpretation
given to the discretion exercised by a public representative body
F such as the appellants in carrying out the functions entrusted to
them by Parliament. Courts should' not be astute to find they
have acted outside the scope of their powers."
In the present case there is no doubt that the removal of these
hangars by 1972 together with their use meantime as a wholesale ware­
house was the fulfilment of a planning purpose. The idea was in
G accordance with the development plan and amply fulfilled the. first test.
It is on the second test, whether one treats it as part of test (3) (as
Mr. Boydell suggests one should) or as a matter to be considered
separately, that difficulty arises. The Court of Appeal has, unlike the
Divisional Court, found that the obligation to demolish the hangars
after 10 years did truly relate to the permitted development. Since
JJ the permitted development consisted not in permission to build but
in a change of use of the hangar to the purpose of a warehouse, it is
at first sight hard to see how the conclusions of the Divisional Court can
be faulted. As Robert Goff J. said in his judgment, 75 L.G.R. 608, 616:

€28
Lord Lane Newbury Council v. Environment Sec. (H.L.(E.)) [1981]
" I cannot see how a condition that the buildings be removed .
related to the permitted development in the present case, which was
the use of the building as a warehouse for synthetic rubber."
The Court of Appeal took the view that the application by I.S.R.
should be interpreted as an application for temporary use of the two
hangars as warehouses; and that the permission should be read as
permission for temporary use. So interpreted, it is said, a condition JJ
which specified a period of temporary use and a condition which
required removal of the hangars at the end of that period both related to
the permitted development. Assuming that those glosses upon both
the application and permission are legitimate, it still seems to me, with
respect to the reasoning of the Court of Appeal, that a condition requir­
ing the hangars to be demolished cannot fairly be said to relate to the
use of the hangars as warehouses. The fact that the use; is to be C
temporary does not bring the requirement to demolish into any closer
relationship with the permitted development. In my opinion the
Minister arrived at the correct conclusion, namely that the condition
•did not relate to the permitted development, was void and therefore
failed, taking with it the permission to which it was annexed.
It is not altogether clear on what precise basis the Minister reached D
his decision. We have been shown a circular emanating from the
Ministry in 1968 containing certain guidelines which it suggests should
be observed by local planning authorities when considering applications
for planning permission. Paragraph 9 of that document states as follows:
" Is the condition relevant to the development to be permitted!
Unless it can be shown that the requirements of the condition E
are directly related to the development to be permitted, the condi­
tion is probably ultra vires. . . . The condition must be expedient
having regard to the development which is being permitted; and
where the condition requires the carrying out of works, or
regulates the use of land, its requirements must be connected with
the development permitted on the land which forms the subject F
of the planning application."
So far there can be no criticism. These suggestions are simply an
amplification of the second test. At the end of paragraph 9, however,
come the following words:
" A condition requiring the removal of an existing building, whether G
on the application site or not, will only be reasonable if the need
for that removal springs directly from the fact that a new
building is to be erected."
That is too sweeping a proposition. No doubt a condition requiring
the removal of a building will usually relate to the permission only if
the permission has been to erect a new building. There may however
be exceptional cases, and some possibilities were suggested in
argument, where a requirement to remove could properly be said to

629
A.C. Newbury Council v. Environment Sec. (H.L.(E.) ) Lord Lane
. relate to a mere permission to change the use. In short, the test is,
does the condition fairly relate to the permission?; not, does the condi­
tion spring directly from the fact that a new building is to be erected?
It is not clear which test the Minister applied here. The decision at
which he arrived was correct whichever test he applied.
Since the decision was correct, the provisions of R.S.C., Ord. 94,
r. 12 (5) do not require this House to remit the matter to the Minister
B for rehearing.
I would allow the appeal and restore the order of the Minister.
I agree with the order for costs proposed by my noble and learned
friend, Viscount Dilhorne.
Appeals allowed.
C Solicitors: Treasury Solicitor; Herbert Smith & Co.; Sharpe,
Pritchard & Co.
J. A. G.