Flattery v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lindblom |
| Judgment Date | 18 November 2010 |
| Neutral Citation | [2010] EWHC 2868 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 November 2010 |
| Docket Number | Case No: CO/3354 & 3363/2009 |
[2010] EWHC 2868 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Mr Justice Lindblom
Case No: CO/3354 & 3363/2009
Mr Thomas Flattery appeared in person
Mr Stephen Whale (instructed by the Treasury Solicitor) for the First Defendant
Mr Robert Walton ( instructed by the Nottinghamshire County Council) for the Second Defendant
Hearing dates: 14 & 15 October 2010
Mr Justice Lindblom:
Introduction
The First Claimant, Mr Thomas Flattery, challenges, by an application under section 288 of the Town and Country Planning Act 1990, the decision of an Inspector appointed by the First Defendant, the Secretary of State for Communities and Local Government, in a letter dated 10 March 2009, to dismiss two appeals made by him under section 195 of the Town and County Act 1990 in respect of applications to the Second Defendant, the Nottinghamshire County Council, to grant certificates of lawful use or development for the use of land formerly known as Twitch Farm, Hollowdyke Lane, Balderton, Newark as a scrap yard and for various other development on that land, and, by an application for leave to appeal under section 289 of the 1990 Act, the Inspector's decision to dismiss two appeals made by him and the Second Claimant, a company called Japanese Parts Centre Limited, (“the appellants”) under section 174 of the 1990 Act, against two enforcement notices issued by the County Council relating to that development. There is also a challenge to the Inspector's decision, given in a separate letter of the same date, rejecting an application for costs which was made by the appellants against the County Council at the end of the inquiry she held into the appeals. The Second Claimant has played no active part in the present proceedings.
Factual background
The Twitch Farm site has had a long and, at times, troubled planning history. It was acquired by Mr Flattery in 2005.
On 9 January 2006 Mr Flattery made an application to the County Council under section 191(1)(a) and (b) of the 1990 Act for a certificate of lawful use or development for development on the Twitch Farm site which was described in the application in this way:
“Existing scrap yard use for storage, sorting and retail of scrap and use for storage of portacabins and shelving and erected building.
1) The use of the site as a scrap yard covers the whole site. It includes storage, sorting and retail elements.
2) The use of the site for storage and use of portacabins.
3) The erected building.”
The County Council did not determine that application within the statutory period, and Mr Flattery appealed, under section 195, in respect of that failure. This appeal was referred to by the Inspector in her decision letter as Appeal LDC 1.
On 3 August 2007 Mr Flattery applied again for a certificate of lawful use or development, in the same terms. That application was refused by the County Council on 22 October 2007. Mr Flattery then appealed against that refusal. This appeal was referred to by the Inspector as Appeal LDC 2.
On 10 December 2007 the County Council issued an enforcement notice in respect of the land alleging a breach of planning control by the making of a material change in the use of the land, without planning permission, to a use for the storage and dismantling of vehicles, including the retailing of parts salvaged from those vehicles, and the carrying out of operational development involving the erection on the land, without planning permission, of a building, portacabins and racking. The notice required the use to cease and the removal of items brought on to the land in connection with the use, together with the removal of the building, portacabins and racking. The period for compliance with the notice was set in stages over the course of five months. The appeals against this notice proceeded in the end on the statutory grounds provided in section 174(2), (c), (f) and (g) of the 1990 Act. This enforcement notice was referred to by the Inspector as Notice A.
A second enforcement notice was served by the County Council on 10 December 2007. This alleged a breach of planning control by the making of a material change in the use of the land, without planning permission, to a mixed use for the storage and dismantling of vehicles, including the retailing of parts salvaged from those vehicles, and for the storage and use of portacabins and, without planning permission, the carrying out of operational development involving the erection of a building. The notice required the cessation of the uses and the removal of items brought on to the land in connection with those uses together with the removal of the building. Again, the time for compliance with the notice was divided into stages over a period of five months. The appeals proceeded eventually on grounds (d), (f) and (g). This enforcement notice the Inspector referred to as Notice B.
On 23 September 2008 the Inspector held a pre-inquiry meeting, at which various procedural matters were discussed and dealt with. After that meeting correspondence took place between Mr Flattery and his solicitor and the Planning Inspectorate, in the course of which Mr Flattery made a formal complaint about the conduct of one of the Inspectorate's officials. I shall come to that correspondence when I consider the submissions Mr Flattery has made about it.
The inquiry into the four appeals began on 6 January 2009. It continued for seven sitting days. Site visits were made on 5 and 15 January 2009.
In her decision letter the Inspector allowed Appeal LDC 1 (9 January 2006) and Appeal LDC 2 (3 August 2006) to the extent that she granted certificates confirming that the skeletal frame of a Dutch barn on the site was immune from enforcement and therefore lawful, because it had been on the site for more than four years. The Inspector rejected Mr Flattery's argument that the uses to which the application for the certificate referred had become lawful by the date of the application. None of the grounds pursued in the appeals against the enforcement notices succeeded. Those appeals were dismissed, and each of the notices was upheld in a corrected and varied form.
At the start of the inquiry, as she had at the pre-inquiry meeting, the Inspector had raised her own concerns about the scope and wording both of the applications for the certificates and of the enforcement notices. These concerns were ultimately resolved at the inquiry. The outcome of the Inspector's consideration of those matters is set out in paragraphs 4 to 9 of her decision letter. The Inspector's approach to the variation of the enforcement notices is under attack in Mr Flattery's challenge and I shall come to that in due course.
In dealing with Notice A the Inspector addressed the ground (c) appeal in paragraphs 11 to 16 of her decision letter, the ground (f) appeal in paragraphs 70 to 72 and the ground (g) appeal in paragraphs 73 and 74. The Inspector's treatment of the ground (c) appeal is criticized in several respects by Mr Flattery, and I shall therefore return to that later.
In dealing with Notice B the Inspector addressed the ground (d) appeal in paragraphs 17 to 64 of the decision letter, the ground (f) appeal in paragraphs 70 to 72 and the ground (g) appeal in paragraphs 73 and 74. Mr Flattery seeks to impugn the Inspector's conclusions on the ground (d) appeal and on the related aspects of the appeals relative to the certificate applications, which are addressed in paragraphs 65 to 69 of the Inspector's letter. I shall therefore come back to that as well.
In paragraphs 75 to 84 of her decision letter the Inspector set out her conclusions on what she described as “Other matters”, namely “Legitimate expectation” (in paragraphs 75 to 80) and “Human rights” (in paragraphs 81 to 84). Those passages of the decision letter I shall consider when I come to deal with the submissions Mr Flattery has made about them.
At the end of the inquiry the appellants made an application for a full award of costs against the County Council in respect of all four appeals. The Inspector refused that application, and, as I have indicated, this decision too has been challenged.
The material before the court
Mr Flattery has submitted a large amount of material in support of his applications to the court: a document entitled “Grounds of Appeal and Statement of Case Submitted on behalf of the Appellant Pursuant to Section 288 of the Town and Country Planning Act 1990” for the section 288 challenge, and a corresponding document for the section 289 application; various other documents, including a 74 page “skeleton argument”, which, I was told had been prepared by the solicitor previously acting for Mr Flattery, a document entitled “Human Rights Statement issued under the Civil Procedure Rules”, Mr Flattery's closing submissions to the inquiry, and a list of 174 authorities which it was indicated would be dealt with at the hearing. The court has before it written evidence in the form of the several witness statements produced by Mr Flattery himself and others provided by 13 additional witnesses for Mr Flattery; the witness statement of the Inspector; and, for the County Council, the statements of Mr Turner, the County Council's Monitoring and Enforcement Manager, and Ms Kirsty Fitzgerald, a law student at Nottingham Trent University, who attended...
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