Alwyn De Souza v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 28 July 2015 |
| Neutral Citation | [2015] EWHC 2245 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1091/2015 |
| Date | 28 July 2015 |
[2015] EWHC 2245 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/1091/2015
and
Jonathan Clay (instructed by DMH Stallard) for the Claimant
Charles Banner (instructed by The Government Legal Department) for the Defendant
Hearing dates: 16 July 2015
These proceedings relate to an enforcement notice issued by Test Valley District Council, the second defendant, in March 2014, and relating to land in the countryside near Romsey, Hampshire. The breach of planning control alleged was that there had been a material change in the use of this land without planning permission to a use "for open storage of builders materials, plant, equipment, vehicles and surplus materials and the siting of three storage containers". The enforcement notice required that all those items should be removed from the land.
The applicant appealed against the notice under the Town and Country Planning Act 1990, TCPA, on the grounds in section 174(2)(a) that planning permission should be granted for that use, (c) that the matters alleged did not constitute a breach of planning control, (d) that the time had passed for taking enforcement action and (g) that the period for taking the required steps was too short. This case is concerned with grounds (a) and (c). By section 177(5), the applicant also is deemed to have made an application for planning permission for the matters alleged to constitute the breach of planning control. The precise terms of those statutory provisions are of importance as I shall come to.
Following a public inquiry, the Inspector rejected the appeal on all grounds, save for an amendment under grounds (c) and (g) to avoid the enforcement notice affecting permitted development rights and an extension of time for compliance with the notice to 6 months. He refused the deemed planning application. The enforcement notice as upheld with amendments contains the following requirements:
"1. Other than as permitted under the provisions of Class A Part 4 Schedule 2 to the General Permitted Development Order 1995 (as amended), cease the use of the land for the open storage of builders' materials, plant, equipment, vehicles and surplus materials and the siting three (3) storage containers; and,
2. Remove from the land all builders' materials, plant, equipment, vehicles and surplus materials and storage containers not required in connection with authorised works being undertaken on adjacent land."
This amendment is made in the requirements and not in the recitation of breach.
The applicant appealed under s289 TCPA on a point of law, or several as it happens. By s289(6), the leave of the High Court was required for the bringing of that appeal. The application for leave came before Gilbart J who on 9 December 2014 refused leave to appeal to the High Court in relation to grounds (c), (d) and (g). However, he ordered, after giving his reasons on 18 December, that:
"The application under ground (a) in respect of the decision to refuse the deemed application for planning permission stands as a ground of application under Section 288 of The Town and Country Planning Act 1990 to be listed accordingly."
The reference to ground (a) is a reference to the statutory ground (a) appeal. As he had made clear at the hearing, and contrary to the submissions of Mr Clay for the applicant, Gilbart J had taken the view that ground (a) and indeed the deemed planning application challenge had to be made, not under s289, but under s288. The Defendants were not represented. In paragraph 2 of his judgment Gilbart J said:
"As this is an application under Section 289 of the 1990 Act, it is not appropriate to include grounds directed towards quashing the decision to refuse the deemed application for planning permission, which was considered under ground (a). However nothing much turns on that since if I were minded to allow this application I could always indicate that this should stand as the grounds for a Section 288 application."
The applicant applied for permission to appeal to the Court of Appeal, not against that part of Gilbart J's Order that there should be a s288 hearing of the ground (a) appeal, but against his refusal of leave to appeal to the High Court in relation to ground (c). That application for permission to appeal to the Court of Appeal was refused on paper for want of jurisdiction by Lewison LJ in line with the decision in Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government [2013] EWCA Civ 370, and earlier decisions.
And so the matter came on before me, seemingly as a s288 application for which no leave to appeal was required, challenging the decision under ground (a) and the refusal of permission on the deemed planning application. I was puzzled by this as Gilbart J had seemingly ruled on ground (a) holding it to be unarguable. In paragraph 15 of his judgment he said this,
"So far as the Inspector's rejection of the appeal under ground (a) is concerned, he took all relevant matters into account, including the statutory Development Plan and concluded that planning permission should be refused on the basis that the principle of the use of the land for open storage was not acceptable in the open countryside, having regard to the Development Plan for this area and national planning policy. Although an attempt was made to argue that this development was somehow consistent with the Development Plan and national policy, I reject that submission for the reasons given by the Inspector in the Decision Letter, which in my judgment are unassailable."
I was also puzzled because the appellant was trying to argue in relation to ground (a) that the Inspector had failed to consider as a material consideration the fact that he had planning permission for the use of part of the enforcement notice land for the open storage of builders' material and the other items. But the existence of this planning permission for open storage was in fact the basis for his ground (c) argument which the Inspector had rejected, which decision Gilbart J had found to contain no arguable error of law and which, as ground (c) could no longer be pursued.
I was troubled by the Order which Gilbart J had made and asked for submissions as to the jurisdiction he had to make it in the light of s284, 288 and 289 TCPA. S284(1) is the exclusionary jurisdiction provision; it says:
"Except in so far as may be provided by this part, the validity of… (f) any such action on the part of the Secretary of State as is mentioned in subsection (3), shall not be questioned in any legal proceedings whatsoever."
Section 284(3) lists the actions referred to in s284(1)(f): it is action of any of the following descriptions—
"… (e) any decision to grant planning permission under paragraph (a) of s177(1)…"
It is to be noted that s284(3)(e) only applies to a decision to grant planning permission and not to any decision on the deemed application for permission under s177(5) or to any decision on an appeal under ground (a).
S288 is the provision which deals with applications in relation to actions under s284(3) and so would be relevant had the Inspector granted planning permission but he did not do so. S288(1) provides:
"If any person—
(a) is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds—he may make an application to the High Court under this section."
Section 288(4) provides:
"This section applies to … any such action on the part of the Secretary of State as is mentioned in subsection (3) of [section 284]."
Accordingly Section 288 has no application: Section 289 is the only possible avenue for a High Court challenge. S289(1) is broad. An appeal lies to the High Court on a point of law against the decision of the Secretary of State "in proceedings on any appeal under Part VII against an enforcement notice." The appeal right is available to the appellant, a local planning authority or any other person having an interest in the land to which the notice relates. The appellant is the appellant against the enforcement notice.
The reason for the distinction between grant and refusal in section 284(3)(e) appears to be that those "aggrieved" by the grant of planning permission on an enforcement notice appeal should have a right of application to the court equivalent to that which they would enjoy under s288, and particularly because the language of standing differs as between an "aggrieved" person for s288 purposes and the more limited range of those who can appeal under s289. But be that as it may, the only jurisdiction of this court in relation to the decisions of the Secretary of State challenged by this applicant lay under s289. Leave to appeal is required. The hearing could not take place as a s288 hearing as I have no jurisdiction to hear it and Gilbart J had no jurisdiction to order such a hearing.
The parties agreed on that point and suggested that the hearing before me should be treated as a substantive hearing following an assumed grant of permission to apply. Neither thought it right to say that as Gilbart J had had jurisdiction under s289 and not otherwise, and had considered the ground (a) appeal and ruled on it adversely to the applicant, there was no further power in the court at all to hear further applications. Indeed Mr Clay had argued much of his case by the...
To continue reading
Request your trial
-
Bramley Solar Farm Residents Group v Secretary of State for Levelling Up, Housing and Communities
...read, cannot be interpreted as removing it altogether.” 131 In De Souza v Secretary of State for Communities and Local Government [2015] EWHC 2245 (Admin), at [32], Ouseley J. held: ““Recognising intrinsic character” must involve some response to that recognition which is inherently a prot......
-
R (on the application of Cham) v Secretary of State for the Home Department
...should be noted: i) On 9 July 2014 Ouseley J delivered his judgment in Detention Action v Secretary of State for the Home Department [2015] EWHC Admin 2245 (Admin). I do not propose to attempt to summarise the 232 paragraphs of this important judgment to which I pay tribute. It is sufficien......
-
Modou Lamin Cham v Secretary of State for the Home Department
...should be noted: i) On 9 July 2014 Ouseley J delivered his judgment in Detention Action v Secretary of State for the Home Department [2015] EWHC Admin 2245(Admin). I do not propose to attempt to summarise the 232 paragraphs of this important judgment to which I pay tribute. It is sufficient......