Kartikeya Solutions Ltd T/A Unique Children's Home v Secretary of State for Communities and Local Government (First Defendant) London Borough of Waltham Forest (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Frances Patterson |
| Judgment Date | 18 June 2013 |
| Neutral Citation | [2013] EWHC 2019 (Admin) |
| Docket Number | CO/1201/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 June 2013 |
[2013] EWHC 2019 (Admin)
IN THE HIGH COURT OF JUSTICE CO/1202/2012
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Frances Patterson QC
(Sitting as a Deputy High Court Judge)
CO/1201/2012
Mr I Colville (instructed by DMH Stallard Solicitors) appeared on behalf of the Claimant
Mr S Whale (instructed by Treasury Solicitor) appeared on behalf of the Defendants
THE DEPUTY JUDGE: This is a hearing into two conjoined appeals. The first is under section 288 of the Town and Country Planning Act to a decision letter on the part of the first defendant dated 9 January 2012. In that letter, the Inspector appointed by the first defendant dismissed appeals by the claimant against the decision of the second defendant to (i) refuse to grant planning permission for the continuation of use of 4 Pembroke Road, Walthamstow, E17 as a residential children's home on a permanent basis without complying with condition 3 of planning permission 2006/1801 which limited the use of the premises to a period which expired on or before 20 June 2009 and required the use to cease; (ii) to issue an enforcement notice which required the use of the property as a residential children's home to cease.
The second appeal is under section 289 of the Town and Country Planning Act. That has been conjoined with the first appeal as the issues clearly overlap. The issue there is whether permission should be granted on a point of law arising from the decision letter. If granted, it is agreed that this hearing is the appropriate forum for determination of that issue. The issue, it is said, of law which arises from the second appeal is whether the Secretary of State erred in law in concluding that the change of use of the appeal site from use as a dwelling house to a residential children's home was a material change of use for the purposes of section 55(1) of the Town and Country Planning Act.
Background
Kartikeya Solutions Limited, who I will refer to hereafter as the claimant, own the property known as 4 Pembroke Road in Walthamstow. It is an end of terrace property, sharing a party wall with 6 Pembroke Road.
On 6 May 2004, planning permission was granted under reference 2004/0240 for a change of use from a dwelling house to a residential children's home. The permission was temporary, with conditions that, firstly, limited the use to a 2 year period; secondly, required the installation of soundproofing to the party wall with 6 Pembroke Road; and, thirdly, limited the number of children to no more than six. The reasons for the conditions were to consider the effect on the amenities of the neighbouring properties and to protect the amenities of the adjacent residential occupier.
On 15 March 2007, planning permission was granted under reference 2006/1801 for the removal of condition 1 to continue use as a residential children's home. That permission repeated the earlier conditions, save that condition 3 now read:
"The use hereby permitted shall be for a limited period only expiring on or before 20 June 2009 at which time the use shall cease."
The claimant purchased the property in March 2008.
On 31 March 2009, an application was made under reference 2009/0543 for the renewal of planning permission 2006/1801 to continue use as a residential children's home. Details of soundproofing works to the property undertaken by the claimant were submitted in support of that planning application. The application was refused on 6 August 2010 on two grounds. They were:
"1. The use of the property as a children's home results in a level and intensity of use in and around the property that results in a serious adverse impact on the amenity of adjoining and local residential occupiers by reason of noise and disturbance and a continuation of the use would therefore be harmful to local residential amenity. As such the development contravenes policies SP1, SP14, GSC1, BHE3 and BHE4 of the adopted Waltham Forest Unitary Development Plan.
2. The soundproofing works that have been installed to the party wall between numbers 4 and 6 Pembroke Road fail to sufficiently limit the amount of air borne and impact sound generated by the operation of the children's home and the continuation of the use would result in a significantly harmful level of noise, disturbance and nuisance to the occupiers of No. 6 Pembroke Road. As such the development contravenes policy SP1, SP14, GSC1, BHE3 and BHE4 of the adopted Waltham Forest unitary Development Plan."
An enforcement notice was served following the refusal of the application requiring cessation of use. An appeal was lodged and heard at a public inquiry at the end of 2007.
On 9 January 2012, the Inspector issued his decision letter dismissing both appeals. There was a further decision letter of the same date on the issue of costs in which he made a partial award of costs in favour of the claimant on the issue of noise transfer through the party wall with 6 Pembroke Road.
The legal framework
An appeal under section 288 of the Town and Country Planning Act allows a person who is aggrieved on a section 78 appeal to question its validity in the High Court on the grounds that the action taken is not within the powers of the 1990 Act or that any of the relevant requirements have not been complied with. As Sullivan J (as he then was) said in the case of Newsmith, R (on the application of) v Secretary of State for Environment, Transport & the Regions [2001] EWHC (Admin) 74:
"6. An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits.
7. In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable."
It does not provide an opportunity to review planning merits of any decision. The structure and approach to a decision are matters largely for the judgment of the decision maker, as set out in the case of Dartford Borough Council v Secretary of State for Communities and Local Government [2012] EWHC 634 at paragraph 20:
"20. My attention was drawn to the decision in Edinburgh City Council v Secretary of State for Scotland [1997] 1 WLR 1447, 1459-60, where it was emphasised that the structure of and approach to a decision were matters largely for the judgment of the particular decision-maker. Mr Ormondroyd also submitted that the court should look broadly at the Inspector's findings and reasoning and not focus on the minutiae. In this context, he cited ELS Wholesale (Wolverhampton) Ltd v Secretary of State for the Environment (1987) 56 P & CR 69. It is right that I should address the reasoning in this case with those broad principles in mind."
The court will consider a quashing order in a case of failure to take into account a relevant consideration only if it is satisfied that there is a real possibility that the consideration of the matter would have made a difference to the decision (see Simplex (GE) Holdings v Secretary of State for the Environment [1998] 3 PLR 25).
What is development is set out in section 55 of the Town and Country Planning Act 1990 and includes "the making of a material change in the use of any building".
One of the prescribed exceptions which is not to be taken to be development is that under section 55(2)(f) of the Town and Country Planning Act and the Town and Country Planning (Use Classes) Order (as amended) which is when the use of a building within one Use Class is to another purpose within the same Use Class. Notwithstanding that, a change of use not benefiting from the Use Classes Order will amount to development only if it is a material change of use.
Ground 1. The material change of use issue: section 289
The Inspector dealt with this in paragraphs 9 to 20 of his decision letter. The Inspector referred to the local authority argument that the personal care of children was classed as "care" in the context of Class C2 of the Use Classes Order. He continued:
"It is common ground that care is provided by non-resident carers. The High Court judgment in North Devon provides authority for the view that children cannot, as a matter of law, form a household. Even where carers provide 24-hour care, they cannot, if they do not live at the property, be regarded as living together as part of a household."
Having reviewed the argument, the Inspector concluded at paragraph 13 as follows:
"The lesson from it is that, regardless of the origins of a given group of people, a fact and degree assessment...
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