Christian Brown (Appellant/Claimant) v Secretary of State for Communities & Local Government (Respondent/First Defendant) Richmond on Thames London Borough Council (Second Defendant) Jane Claire Brown (Third Defendant) National Westminster Bank Plc (Fourth Defendant)
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Jarman |
| Judgment Date | 30 June 2015 |
| Neutral Citation | [2015] EWHC 2502 (Admin) |
| Docket Number | CO/1511/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 June 2015 |
[2015] EWHC 2502 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
The Strand
London
WC2A 2LL
His Honour Judge Jarman QC
Sitting as a Judge of the Queen's Bench Division)
CO/1511/2015
and
and
and
Mr Jonathan Clay (instructed by DMH Stallard) appeared on behalf of the Appellant/Claimant
Ms Justine Thornton (instructed by the Treasury Solicitor) appeared on behalf of the Respondent/First Defendant
Tuesday 30 th June 2015
This is an appeal under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") against a decision of an inspector appointed by the first defendant (the Secretary of State) who himself was dealing with an appeal by the claimant, Mr Brown, under section 195 of the 1990 Act against the refusal by the second defendant (the authority) to grant a certificate of lawfulness in respect of the ground floor and basement of 85 White Hart Lane, London (the premises). The use in respect of which the certificate was sought was specified in an application (the application) dated 26 th November 2013 under section 191 of the 1990 Act as "use of the ground and basement floors for dual use of either B1(a) (offices) or A1 (retail)". Those references are taken from the Town and Country Planning (Use Classes) Order 1987 (as amended).
The reason which the authority gave when refusing the application by a decision dated 22 nd January 2014 was that Mr Brown had failed to demonstrate by reason of insufficient evidence that the ground and basement floors of the premises could be used for retail or office use. That was after an officer's report had been placed before the authority. In paragraph 8 of that report it was noted that planning permission was granted in 1992 for use of the ground and basement floors of the premises as retail/office use. It was said that a previous officer's report upon the application for that permission makes it clear that permission was granted for a mixed A1/B1 use on the ground and basement floors and did not allow the entire premises to be used as either A1 or B1. In paragraph 11 of the later report reference is made to the evidence then before the authority that the property had been used as an office. At paragraph 12 this is said:
"The only evidence of this provided by the applicant is reference to an email from the applicant dated 27 th June 2013 and submitted with the application withdrawn last year. … This email indicates that the subject premises changed from the mixed use permitted in 1992 to an office with basement storage in 2001 or 2002. … As such, the applicant has not demonstrated, on the balance of probabilities, that the subject premises can be used for either retail or office purposes."
The appeal before the inspector proceeded on the written representation procedure under the Town and Country Planning (Enforcement) (Written Representations Procedure) (England) Regulations 2002 (the Regulations). The document submitted on behalf of Mr Brown included a statement by his agents, Savills UK Limited, the application form, site location and existing floor plans, counsel's advice, photographs, documents relating to planning permissions given in respect of the premises in 1989 and 1992 and correspondence. The inspector visited the premises unaccompanied. In his succinct decision letter, dated 17 th February 2015 (the decision letter), he recorded what he saw as follows:
"1. … When I saw the site the premises were vacant except for what appeared to be some carpentry equipment. I could see the upper part of an internal spiral stairway leading down from the ground floor to the basement."
The inspector dismissed the appeal for two main reasons. First, he held that at the date of the application the premises had no use and that any use rights which may have existed in the past had been lost through abandonment, so that the use described in the application was not lawful. Second, even if he had not found abandonment, he said that the outcome of the appeal would have been the same, because he then found that from 2001 to 2002 the premises were in mixed use for offices and storage, with neither activity being ancillary to the other. He referred to the phrase "basement warehouse" used on behalf of Mr Brown in the application form which, he said, implied that storage was a significant element of the overall use, and not just the type of storage of items such as stationery, which would normally be regarded as ancillary to office use. Accordingly, the last use of the premises was not office use or retail use, but a mixed use for offices and storage. Such a use at the date of the application was unlawful.
On behalf of Mr Brown, Mr Clay submitted in his skeleton argument that the decision of the inspector was wrong in law on three grounds: first, there was a breach of natural justice because the issue of abandonment was not raised by either Mr Brown or the authority in the written representations and the inspector should not have made his finding without first giving them the opportunity to deal with it; second, the inspector was wrong to find that there was an abandonment; and third, there was nothing before the inspector to support the finding that storage was not ancillary to office use.
Those submissions were supplemented in a supplemental skeleton argument which Mr Clay filed where he set out two propositions: first, that there is no principle in planning law that a valid planning permission can be abandoned by the actions of a party who is entitled to the benefit of the planning permission; and second, that there is no principle that a planning permission for a change of use can be treated as "spent" so that the resumption of the permitted use cannot take place following a long period of non-user.
Miss Thornton, on behalf of the Secretary of State, also put in a supplemental skeleton argument to deal with those propositions. She accepts that there is no material dispute between the parties on propositions in the abstract. The material difference between the parties is that the Secretary of State contends that the propositions fall under the weight of the factual context which the inspector had to determine, namely an application for a lawful development certificate, and that the factual finding by the inspector that the use of the premises in 2001 to 2002 was for office and storage use.
Before I go into the background in more detail it is important to bear in mind precisely what the inspector was dealing with. Section 191, so far as material, provides as follows:
"(1) If any person wishes to ascertain whether —
any existing use of buildings or other land is lawful; or
any operations which have been carried out in, on, over or under land are lawful; or
any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,
he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.
(2) For the purposes of this Act uses and operations are lawful at any time if —
no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and
they do not constitute a contravention of any of the requirements of any enforcement notice then in force.
…
(4) If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application.
…
(6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed."
Section 192 of the 1990 Act, so far as material, provides as follows:
"(1) If any person wishes to ascertain whether —
any proposed use of buildings or other land; or
any operations proposed to be carried out in, on, over or under land,
would be unlawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use or operations in question.
(2) If, on an application under this section, the local planning authority are provided with information satisfying them that the use or operations described in the application would be lawful if instituted or begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application.
…
31. (4) The lawfulness of any use or operations for which a certificate is in force under this section shall be conclusively presumed unless there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness."
The 1989 permission was for the development of the premises "to provide a two bed maisonette and change of use of ground floor shop to B1 involving rebuilding of existing two storey rear section" and a single storey extension. The 1992...
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