Epping Forest District Council v Philcox: CA 13 Apr 2000

Where an activity had been continuing without planning permission for 10 years it was no obstacle to obtaining a certificate of lawful use that the activity had been illegal because it had been carried out without a waste management licence. A certificate once granted is conclusive answer to any enforcement notice subsequently issued and is a conclusive answer to any other illegality which may be raised under any other statutory provision.
Pill LJ said: ‘The court is entitled to construe a statute . . in the light of its ability to promote its notions of public policy. The cases do not, however, in my judgment, establish a principle that the plain words of a statute which define what is lawful must be read subject to a proviso that what is criminal cannot be lawful. Section 191, in a systematic way, defines what uses and operations are lawful for the purposes of the Act and states the consequences of achieving that status with specific reference to section 36(2)(a) of the Environmental Protection Act 1990. There is no principle of public policy which requires that the intent of Parliament as expressed in section 191 should be defeated in the manner claimed.’
Chadwick LJ said: ‘Whatever might be the position in other contexts, it is to my mind clear beyond argument that activity which is illegal by reason of contravention of one or other of the regulatory statutes referred to in section 191(7) is not activity which, (for that reason alone) prevents an application being made under section 191(1); or which prevents a local authority from fulfilling the duty imposed upon it by section 191(4). To hold otherwise would be contrary to the plain intention of Parliament when enacting section 191(7) of the Town and Country Planning Act 1990.’
Buxton LJ said: ‘The broad principle of not benefiting from a person’s own illegal acts simply does not fit into the reality of what is being done when planning permission is granted or when a certificate of lawful existing use is granted on the basis of failure to take enforcement action over a period of 10 years; and, in particular, it does not fit, for the reasons that my Lords have given, into the particular case here, which is a case specifically addressed in section 191(7).’


Buxton LJ, Pill LJ, Chadwick LJ


[2002] Env LR 2


England and Wales


See AlsoRegina v Epping Forest Borough Council ex parte Philcox Admn 29-Jan-1998
The claimant sought permission to bring a judicial review of the respondent’s decision to grant a certificate of lawful use. . .
See AlsoRegina v Epping Forest District Council ex parte Philcox Admn 18-May-1999
Application seeking leave to apply for judicial review of a decision by Epping Forest District Council, dated 2nd July 1998, to issue a certificate of lawfulness of an existing use. . .
Appeal fromRegina v Epping Forest District Council, ex parte Philcox (2) Admn 13-Apr-2000
Application for judicial review of the respondent’s decision to grant a certificate of lawful established use. The applicant submits that the respondent acted unlawfully because the person who made the successful application had been committing . .

Cited by:

CitedTaff v Highway Agency UTLC 10-Jul-2009
UTLC COMPENSATION – compulsory purchase – preliminary issue – valuation of land with lawful use certificates and planning permission – claimant operating without necessary waste management licence – Land . .
CitedSecretary of State for Communities and Local Government and Another v Welwyn Hatfield Borough Council SC 6-Apr-2011
The land-owner had planning permission to erect a barn, conditional on its use for agricultural purposes. He built inside it a house and lived there from 2002. In 2006. He then applied for a certificate of lawful use. The inspector allowed it, and . .
Lists of cited by and citing cases may be incomplete.


Updated: 15 May 2022; Ref: scu.431891