John Emilyn Stone and James Emilyn Stone v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wyn Williams |
| Judgment Date | 12 May 2014 |
| Neutral Citation | [2014] EWHC 1456 (Admin) |
| Docket Number | Case No: CO/20/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 May 2014 |
[2014] EWHC 1456 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Wyn Williams
Case No: CO/20/2013
Neil Cameron QC (instructed by Michelmores Solicitors) for the Appellants
James Strachan QC (instructed by Treasury Solicitor) for the First Respondent
The Second Respondent did not appear and was not represented
Hearing date: 30 January 2014
The Second Respondent is the local planning authority for the county of Cornwall. On 27 April 2012 it issued an enforcement notice in respect of land at Brickworks Hill, St Day near Redruth (hereinafter referred to as "the 2012 notice"). The area of land which was the subject of the notice is referred to hereinafter as "the appeal site" but like others before me I shall refer to four distinct areas making up the appeal site as areas A, B, C and D.
The 2012 notice alleged that there had been a breach of planning control upon the appeal site as follows:
"Without planning permission, the material change of use of land to a mixed use consisting of:
• the commercial storage and processing of vehicles for the repair/renovation and the breaking of vehicles for resale of parts; and
• the non-commercial storage of vehicles and vehicle parts; and
• the storage of caravans."
The appeal site was delineated in red upon a plan attached to the enforcement notice. Parts of the site were hatched in blue. Those were areas A, C and D. The notice required the following steps to be taken in respect of those areas of land.
"(1) Permanently cease the use of the land hatched in blue on the attached plan for the commercial storage and processing of vehicles for repair/renovation and the breaking of vehicles for resale of parts;
(2) Permanently cease the use of the land hatched in blue on the attached plan for the non-commercial storage of vehicles and vehicle parts;
(3) Permanently cease the use of the land hatched in blue on the attached plan for the storage of caravans;
(4) Permanently remove from the land hatched in blue on the attached plan all vehicles and vehicle parts and other ancillary items connected with the use described at (1) above;
(5) Permanently remove from the land hatched in blue on the attached plan all vehicles and vehicle parts and other ancillary items connected with the use described at (2) above;
(6) Permanently remove all caravans from the land."
Most of the land comprising the appeal site was and is owned by the First Appellant. A dwelling house known as Cassita which is situated at the southern end of the appeal site and which lies within area D is jointly owned by both Appellants.
Following the issue of the 2012 notice the Appellants exercised their right of appeal. The appeal was heard by an inspector duly appointed by the First Respondent. By a decision letter dated 6 December 2012 the Inspector dismissed the appeal albeit he exercised his power to correct and vary the notice.
The Appellants now appeal to this court. They rely upon two grounds of appeal. Before considering those grounds, however, it is necessary to set out the planning history of the appeal site so far as is material.
Planning History
On 12 November 2008 the Second Respondent issued an enforcement notice ("the 2008 notice") in respect of an area of land described as "land at Cassita, Tolcarne, St Day, Redruth, Cornwall". The land which was the subject of this notice was the same as area D. The 2008 notice alleged that there had been a breach of planning control upon area D by reason of a change of use of the land without planning permission "from domestic curtilage to a mixed use of (a) the storage of vehicles and (b) domestic curtilage". The notice required that the Appellants (a) cease the use of the land for the storage of scrap vehicles and (b) remove all scrap vehicles from the land. It is common ground that the Appellants complied with the requirements of the notice within the time specified within the notice – as was confirmed by a letter dated 17 March 2009 sent by the Second Respondent to the First Appellant.
Almost immediately thereafter the First Appellant applied to the Second Respondent for a certificate of lawfulness for the mixed use of area D for the storage of vehicles (other than scrap vehicles) and as domestic curtilage. The Second Respondent's response was threefold. First, on 16 December 2009 it purported to withdraw the 2008 notice. Second, on 21 December 2009 it issued a second enforcement notice in respect of area D ("the 2009 notice"). Third, on 15 March 2010 it refused the First Appellant's application for a certificate of lawfulness.
The 2009 notice alleged that the First Appellant was in breach of planning control because:
"Without planning permission, there has been a change of use of part of the land from domestic curtilage to a mixed use of (a) the storage of vehicles and (b) domestic curtilage."
The First Appellant appealed against this notice. His appeal was successful; an inspector duly appointed by the First Respondent quashed the notice. There has been no suggestion in these proceedings that the Inspector's decision was erroneous. Of significance to the appeal before me, however, are the conclusions reached by the Inspector at paragraphs 6 to 10 of his decision letter dated 8 February 2011. They read as follows:-
"6. Before proceeding to determine this appeal I have a number of concerns that were aired in post-visit correspondence. The first is identification of the correct planning unit. The second is my query whether the allegation correctly reflects the uses that have been going on at Cassita, at least since the previous notice was issued.
7. I saw no formal physical enclosure effectively dividing and separating the uses of Cassita's rear garden from the adjoining commercial yard. On the contrary, from my observation and from the detailed evidence submitted by the neighbour at The Cottage, it seems clear that there is a functional link, as well as common occupation and no meaningful physical separation, between these two sites. Access ways have been cleared among trees and hedgerow to allow free movement between the adjoining sites. While some boundary clearance seems to have been carried out in 2004 I particularly note the neighbour's evidence of clearance in May 2009 and 2010.
8. What seems to be going on in the Appeal Site is an integral part of the commercial business of storing and processing vehicles for repair or renovation or by breaking them for resale or parts whether or not they have extant road fund licences. The two adjoining sites have been combined in their use but I do not have details of the adjoining site and the enforcement notice does not include it. There are also some non-domestic materials being stored on the appeal site but, on the scant evidence I have, that aspect of the use of Cassita may be subsumed by the major use of making and breaking vehicles.
9. Looking through Cassita's kitchen window and seeing the state of the approach to the house and the rear garden raise the question in my mind as to whether Cassita has been used residentially for some time. The photographs submitted in evidence by the neighbour show an oppressive degree of vehicles storage sufficient to overwhelm residential use of this property in the usual sense. I believe this to be the normal state of affairs. Mr Stone reports that Cassita is occupied by several tenants in three units of accommodation. Mr Hinds-Randle is under the impression that these tenants are employed by Mr Stone in his business in and around the appeal site.
10. In the light of the evidence before me I conclude the allegation in the enforcement notice is incorrect and is not capable of being corrected without injustice being caused. The correct planning unit has not been identified and is more extensive than described. I will therefore quash the notice……"
The Inspector's reference to "the adjoining commercial yard" in paragraph 7 of his decision letter is probably a reference to area C; it is common ground that area C adjoins area D and did so at the time of the inspector's decision. It is also very likely that the Inspector's reference to the "2 adjoining sites" in paragraph 8 is a reference to areas B and C. Area B adjoins area C as it did at the time of the Inspector's decision. Looked at sensibly and in the round paragraphs 6 to 10 of the decision letter appear to describe a situation as at 2011 in which areas B, C and D were being used together for the business of "storing and processing vehicles for repair or renovation or by breaking them for resale of parts whether or not they have extant road fund licences" – see in particular paragraph 8.
Area A adjoins area B and it is located at the northern most area of the appeal site. Originally it was an area of scrub and/or used for agricultural purposes. According to the Second Respondent its use was altered over time so that it, too, became used for the commercial purposes identified above. In 2007 an enforcement notice was issued in respect of area A and at the time of the Inspector's decision which is under appeal in these proceedings that notice was still extant. At the time of the issue of the 2012 notice the Second Respondent maintained that area A was being used as an integral part of the Appellants' business purposes.
It is common ground that area B has the benefit of a planning permission for...
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