Best Holdings (UK) Ltd (trading as Wyldecrest Parks) v Secretary of State for Levelling UP, Housing and Communities
| Jurisdiction | England & Wales |
| Judge | Karen Walden-Smith |
| Judgment Date | 09 March 2023 |
| Neutral Citation | [2023] EWHC 492 (Admin) |
| Docket Number | Case No: CO/3733/2022 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 492 (Admin)
HHJ Karen Walden-Smith SITTING AS A JUDGE OF THE HIGH COURT
Case No: CO/3733/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Douglas Edwards KC (instructed by Stephens Scown LLP) for the CLAIMANT
Killian Garvey (instructed by the Government Legal Department) for the FIRST DEFENDANT
Hearing date: 2 March 2023
Approved Judgment
This the renewed oral application for permission to bring a planning statutory review pursuant to the provisions of section 288 of the Town and Country Planning Act 1990 (s.288 review).
The challenge is directed towards the decision dated 31 August 2022 of an Inspector, Grahame Kean, appointed by the First Defendant, the Secretary of State for Levelling Up, Housing and Communities (“the Decision”). The Decision by the Inspector was to dismiss the appeal brought by the Claimant, Best Holdings (UK) Limited (trading as Wlydecrest Parks), against the refusal of the Second Defendant, Dover District Council, to grant a certificate of lawful proposed use of land at Wass Drove Farm, Wass Drove, Westmarsh, Canterbury CT3 2LT (“the site”).
Permission to bring the s.288 review was refused on consideration of the papers by Upper Tribunal Judge Elizabeth Cooke on 21 November 2022. In the reasons for that refusal, it was set out that the complaint was that the Inspector had failed to allow the parties the opportunity to comment on the view he took of the current use of the site and that he formed a view from the site visit without regard to the parties respective contentions. That challenge was rejected on the papers as a consequence of the explanation given by the Inspector in his own witness statement. The Claimant has now responded to that witness statement with a further witness statement of Benjamin Eiser, which has been responded to by a further statement from the Inspector. The Claimant makes the point that it is unusual for the Secretary of State to respond to a statutory review challenge with two witness statements, particularly at the permission stage. The Claimant relies upon that as support for the merits of the Claimant's case.
Standing
The First Defendant raised an issue of standing in its acknowledgment. That point was rejected by UTJ Cooke on the papers and is not proceeded with by the First Defendant. The Claimant plainly has standing to seek permission to bring this statutory review.
Factual Background
The Claimant sought a certificate of lawful development pursuant to the provisions of section 192 of the Town and Country Planning Act 1990 (“TCPA 1990”). That application was refused by the Second Defendant, Dover District Council. The First Defendant refused the appeal made by the Claimant against the refusal to grant a certificate of lawful proposed use, pursuant to the provisions of section 195 of the TCPA 1990.
The Claimant was seeking a certificate of lawful proposed development as follows:
“The proposed stationing of up to 5 caravans for all year round residential occupation and up to 25 caravans for residential occupation during the period 1 March and 30 November each year.”
The Claimant's predecessor in title as owner of the site had sought a certificate of lawful existing development pursuant to section 191 of the TCPA 1990 on 15 June 2015 as “sui generis (caravan park permanent residential use)”. That application was refused by the Second Defendant by notice given on 21 October 2016. The decision was appealed and by a decision letter dated 15 June 2018, a certificate of existing lawful existing development was granted in the following terms:
“The use of land as a caravan site in accordance with section 1(4) of the Caravan Sites and Control of Development Act 1960 for the all year round residential occupation of not more than 2 caravans falling with the statutory definition pursuant to section 29 of that Act and for residential occupation of not more than 25 caravans during the period 1 April to 31 October in any year” (“the 2018 LDC”).
Grounds of Challenge
The first ground of challenge is that the Inspector appointed by the First Defendant reached a conclusion as to the existing use of the site being mixed use, including the siting of caravans and parts for storage, the siting of caravans for residential purposes and the deposit of waste: he concluded that this was a change of use from the 2018 LDC such that what was certified in the 2018 LDC no longer represented the current and existing use of the appeal site.
Ground 2 also alleges that the Inspector's handling of the appeal was procedurally unfair. Ground 3 alleges an error of law, a failure to give adequate reasons and irrationality on the part of the Inspector in reaching his alternative conclusion that there would be a definable change in the character of the use of the land of the site.
Both the Claimant and the First Defendant agree that if the Claimant cannot establish that permission ought to be granted under Ground 1, that as Grounds 2 and 3 challenge the alternative findings made by the Inspector, had he not taken the view he did about current use, these are not determinative to the outcome of the appeal, so they would fall away. In essence, if Ground 1 is unsuccessful grounds 2 and 3 become academic.
The complaint of the Claimant is that at no time, either at the hearing itself or after the hearing, did the Inspector raise either with the Claimant or the Second Defendant that his view was that there was, or that there may have been, a material change of use subsequent to the grant of the 2018 LDC. In his witness statement dated 16 February 2023, the Inspector accepts that “the parties did not suggest that the use of the site was a mixed use including for the deposit of waste materials” (para 6) and that it “is correct to state that I did not raise any specific issue with the current use that may have constituted a change of use...
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