Lesley Anne Hedges v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Jarman |
| Judgment Date | 27 August 2021 |
| Neutral Citation | [2021] EWHC 2392 (Admin) |
| Docket Number | Case No: CO/1101/2021 |
| Year | 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 2392 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
In the Matter of an Appeal under section 289 of the Town and County Planning Act 1990
Cardiff Civil and Family Justice Centre
2 Park Street, Cardiff, CF10 1ET
HIS HONOUR JUDGE Jarman QC
Sitting as a judge of the High Court
Case No: CO/1101/2021
and
Mr Matthew Fraser (instructed by Stephens Scown Solicitors) for the appellant
Mr Jack Smyth (instructed by Government Legal Department) for the first respondent
The second respondent did not appear and was not represented
Hearing dates: 25 August 2021
Approved Judgment
This judgment is handed down remotely via CVP and is deemed to be handed down at 10am Friday 27 August 2021. It will be sent to the parties and to Bailli for publication.
HH JUDGE Jarman QC:
This is an appeal by Mrs Hedges under section 289 of the Town and Country Planning Act 1990 (the 1990 Act) against the decision dated 26 February 2021 of an inspector appointed by the first respondent (SoS) dismissing her appeal against an enforcement notice (the notice) issued under section 172 of the 1990 Act. The notice was issued by the second respondent as local planning authority (the council) on 10 October 2019 and related to a field which Mrs Hedges owns with her husband at Pleasant Streams Barn, Lower Sticker, St Austell (the land). The breach of planning control on the land alleged in the notice was “Without planning permission, the material change of use of the land from a field used for agricultural purposes to holiday use for the stationing of caravans and tents.”
The notice required the cessation of the use of the land for the stationing of caravans and tents for holiday purposes and the removal of all caravans and tents and all associated infrastructure within 2 months.
Only one ground of appeal before the inspector is now relevant and that is that under section 174(2)(d) of the 1990 Act at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters. That ground refers back to the time limits for enforcement set out in section 171B, which in the case of change of use is four years from the date of breach in the case of change of use to a single dwelling (subsection (2)) or ten years in any other case (subsection (3)). It was common ground before the inspector and before me that the unlawful use of the land referred to in the notice had continued uninterrupted since 2010. The narrow disputed period was and is from 10 October 2009 (or earlier) until the end of 2009. Mrs Hedges' case was and is that the use commenced in July 2009 and she relied on evidence in support.
In considering whether any unlawful use had taken place of the land in 2009, it is necessary to have regard to Class B of Part 4 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 (the GDPO) as it was in force at the time. Class B permitted temporary uses in the following terms:
“The use of any land for any purpose for not more than 28 days in total in any calendar year, …, and the provision on the land of any moveable structure for the purposes of the permitted use.”
An exception to the permitted use under Class B is if the use of the land is for a caravan site. Accordingly at paragraph 9 of his decision letter the inspector said:
“The use for the permitted 28 days for tent camping would not therefore have been a breach of planning control subject to enforcement. However, the use of the land for tents and caravans would have been a breach. Therefore, it is necessary for the appellants to show, in addition to the use commencing prior to the relevant date, that the land was used for tent camping purposes for a period in excess of the permitted development rights in 2009, or that it was used for a sustained period for tent and caravan camping.”
The ambit of the appeal before me is a narrow one encompassing only one ground which was given permission to proceed by HH Judge Gore QC, sitting as a judge of the High Court. That ground is that the inspector required evidence of actual use of the land as a campsite in order to give rise to a material change of use, whether for the purposes of proving more than 28 days or otherwise, and that such a requirement is contrary to case law which discourages a focus on actual use and requires the evidence to be considered in the round. As refined by Mr Fraser, on behalf of Mrs Hedges, in the hearing before me, the argument is that the inspector in considering whether the material change of use took place before 10 October 2009 so as to continue for 10 years before the date of the notice, failed to take into account factors other than actual use, such as the presence of mobile toilet and shower facilities on the land, signs, advertisements and bookings, which point to the land being used as a campsite from July 2009, or at least by October 2009.
Mrs Hedges did not submit affidavits or declarations to the inspector but did submit statements and documentary evidence in the form of invoices for the delivery of mobile toilet and shower facilities to the land in July 2019 and enquiries bookings and advertising in respect of camping on the land from then on.
At paragraph 11, the inspector accepted that precise and unambiguous evidence had been submitted to show that the facilities one would expect to see provided to serve the alleged use were on the site for a period in excess of 28 days starting from 16 July. In the following paragraph he said this:
“In paragraph 1.8 of the appellant's response, the point is made that even if the evidence provided of bookings and actual use is not sufficient, the facilities to use the land as a campsite, that is the stationing of the mobile facilities, were available throughout a period in excess of 28 days. Therefore, the Council would have been able to take enforcement action against the use and thus, by extension, the use was continuous.”
At paragraph 13 the inspector continued:
“My finding on this point is that the Council would not have been able to take enforcement action against the use of the land for camping/caravanning in these circumstances if the land was not actually being used for this purpose. The presence of the mobile facilities does not equate to the use of the land, and its presence could easily have been seen as the temporary storage of the facilities, but in any case I consider that the mere presence of the mobile facilities on the land, without evidence of actual use, would not have enabled the Council to enforce against a material change of use of the land from its lawful agricultural use. So far as their presence was not related to agricultural use, their impact on the definable character of the use of the land would have been de minimus. It is, therefore necessary to go on to assess the submissions relating to the actual use of the land.”
His conclusions on the evidence are set out in paragraph 27 of the decision letter as follows:
“The appellants have put forward evidence to show that on the balance of probability, the use of the land for camping commenced sometime in July 2009. This was probably after the delivery of the shower and toilet facilities, around the 17 July. These facilities were, on the balance of probability, on the site for a period in excess of 28 days in that year. However, I have not been provided with sufficient evidence to show that, on the balance of probability, the land was so used for tent camping for a period in excess of 28 days during that year, or that it was used for tent and caravan camping for any sustained period.
These were findings of fact which were open to the inspector and are not challenged before me. What is challenged is the inspector's approach as to whether the facts as found by him amounted to a material change of use prior to 10 October 2009.
The case law relied upon by Mr Fraser is support of the appeal arises in the context of a material change of use into a dwelling house. In Impey v Secretary of State for the Environment (1984) 47 P & CR 157, which concerned a conversion of kennels into a dwelling house without planning permission, the Court of Appeal held that a physical conversion of the site is a factor to take into account in assessing whether and when a material change of use has occurred. To acquire immunity, it is necessary for the land to have the relevant use for the whole of the four or ten year period, such that the...
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