Humphris v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 01 May 2012 |
| Neutral Citation | [2012] EWHC 1237 (Admin) |
| Date | 01 May 2012 |
| Docket Number | CO/2425/2011 |
| Court | Queen's Bench Division (Administrative Court) |
[2012] EWHC 1237 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Ouseley
CO/2425/2011
Mr J Lopez (instructed by DMH Stallard LLP) appeared on behalf of the Claimant
Mr S Whale (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
This is an appeal under section 288 of the Town and Country Planning Act 1990 against a decision of the Secretary of State for Communities and Local Government given by an inspector on 4 February 2011. By that decision he dismissed the claimant's appeal against the refusal of planning permission by the London Borough of Bromley for the erection of a large two-storey five-bedroom detached dwelling with integral garage on a substantial plot in Mottingham Lane, Mottingham. The appeal was dismissed because the land was Metropolitan Open Land and its development for residential purposes, as would be the case with the green belt, was inappropriate development. In those circumstances the harm caused by the inappropriateness of the development and any other harm had to be outweighed by sufficient very special circumstances.
The history of decision making is important. The claimant acquired the land from the Crown in December 2009. It had previously formed part of the Mottingham Farm Riding Centre. There was a caravan on the northern part of the site which was accessed solely from adjoining land to the north and east which formed part of the Mottingham Farm Riding Centre, rather than being accessed from the front of the property in Mottingham Lane. After the claimant acquired the site, he replaced that caravan with another in a similar position. Then, in May 2010, he replaced that caravan with a mobile home but placed it on the southern part of the site, much closer to Mottingham Lane, some 18 metres south of where the previous caravan had been. That gives some idea of the size of the plot. The claimant also cleared the southern part of the site of much of the densely overgrown vegetation and trees on it.
In April 2010, the claimant sought planning permission for the house which is the subject of the appealed decision under challenge. Permission was refused in July 2010. In June 2010, 29 June to be precise, the London Borough of Bromley issued an enforcement notice in respect of the mobile home. It alleged a material change of the use of the land:
"… from woodland to the use of stationing of a mobile home for residential purposes."
The requirements of the notice were to:
"… discontinue the use of the land for the stationing of the mobile home for residential purposes and (b) remove from the land any resulting debris."
The claimant appealed against that enforcement notice on the grounds that the use of the land for those purposes was immune from enforcement control, since it had been carried on since at least 29 June 2000. He also appealed on the grounds that more time should be given for compliance with the requirements. In respect of that he was partially successful, since the inspector extended time for compliance from one month to six months.
The Enforcement Notice Appeal was heard by an inspector, Mr Woolnough, on 14 December 2010 and he issued his decision letter on 24 January 2011. That decision letter was not the subject of challenge but the claimant seeks to rely on it for this section 288 challenge to the dismissal of his appeal in respect of the two-storey house. Mr Woolnough rejected the claim to immunity. He concluded:
"… that a mobile home or caravan was present continuously on the appeal site for the whole of the relevant period."
See paragraph 12 — the relevant period is the 10 years beginning with 29 June 2000.
He accepted that, as from December 2009, when the claimant acquired the land, there had been a caravan or mobile home on the site somewhere which had been occupied for residential purposes, but he was not satisfied that that had been the case since June 2000. He accepted that there had been a caravan on the site, as I have said, but concluded that it was only used as an occasional overnight shelter by riding centre staff or, by day, for staff who popped in and out to use its facilities. As he put it in paragraph 23:
"The caravan was used first and foremost for purposes ancillary to the use of the wider land as a riding centre …"
The use of the caravan, including for occasional overnight accommodation, was thus ancillary to and part of the riding centre use which was then taking place over the whole of what the inspector called the wider land, of which the land now owned by the claimant was then part. He said in paragraph 24:
"This is in stark contrast to the use of the appeal site made by the appellants. They have no discernible association with the activities of the riding centre and, quite clearly, occupy the land as a self contained independent residential entity."
He found:
"… on the balance of probabilities that a material change of use of the land occurred when Mr Humphris [one of the appellants] first took up residence on the site in December 2009."
The inspector also concluded that, when the claimant purchased the site and it ceased to be part of that wider land, a new planning unit was created on which a self-contained residential use began in 2009. He said in paragraph 27 that the existence of a new planning unit was, in this case:
"… strongly indicative of the cessation of activity primarily ancillary to the riding centre and the commencement of a new self-contained residential use."
This occurred in December 2009, within the relevant period in all likelihood. He also took the view in paragraph 28 that, even if the caravan had formed a residential unit before December 2009, the southern section of the appeal site, where the house was proposed, would not have been part of it because that southern part had been so overgrown as to be virtually inaccessible and could not have been used to any significant degree in association with any caravan before December 2009, when clearance of the southern part of the site began.
He extended time for compliance on the ground that the period of one month was too short, since by that stage the mobile home had become the only home of the claimant and his family. There had been no appeal on the grounds that planning permission should be given and the inspector accepted that the development resulted in harm to interests of acknowledged importance.
For reasons of grammatical accuracy and internal consistency, the inspector made some amendments to the wording of the enforcement notice. Mr Lopez, for the claimant, does not attribute any real significance to that change in wording. The wording, as amended, in relation to the allegation of the breach of planning control now read:
"Without planning permission the material change of use of the land from woodland to the use for the stationing of a mobile home occupied for residential purposes."
The requirements in section 5 of the enforcement notice were:
"Cease the use of the land for the stationing of a mobile home occupied for residential purposes and (b) remove from the land any resulting debris."
Mr Lopez points out that it is common for enforcement notices in relation to caravans to include a requirement that the caravan itself be removed from the site, but this enforcement notice does not explicitly do so, nor was it amended to do so.
Meanwhile, on 11 January 2011 a hearing had been held into the claimant's appeal in respect of the refusal of planning permission for the two-storey house. So this hearing took place after the inquiry into the enforcement notice appeal but before the decision letter on it was issued. As I have said, the decision letter was issued on 4 February 2011, 10 days or so after the decision letter on the enforcement notice.
The inspector at the section 78 appeal, Mr Hogger, was well aware that there had been an inquiry into the appeal against the enforcement notice. He raised this issue with the parties in settling the agenda for the hearing. He pointed out that his decision would not be published until he had had time to consider the deliberations of the other inspector. If, he said at the hearing, the other inspector refused permission for the mobile home, he could determine this appeal based on the evidence he had before him:
"If the other inspector refuses permission for the mobile home, I can determine this appeal based on the evidence I have before me. If he allows the appeal, it is likely that I would seek the written views of all parties with regard to the implications for the proposal before me. However, in the interests of fairness, I will give all parties the opportunity under issue C to briefly outline, if they wish, the consequences as they currently see them for this proposal should the inspector allow the earlier appeal. Are you satisfied with that approach to the situation?"
The inspector notes, and it is not contentious, that all present expressed themselves satisfied with that approach and, when they came to discuss issue C, no-one raised it as part of their case that there was any likelihood that the mobile home could stay on the site but in non-residential use. The inspector's note continued that indeed no-one raised any issues related to the different outcomes that could arise from the inquiry inspector's decision.
I merely add this comment at this stage, that the inspector's reference to refusing permission for the mobile...
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