Miles v National Assembly for Wales
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE LLOYD JONES |
| Judgment Date | 22 January 2007 |
| Neutral Citation | [2007] EWHC 10 (Admin),[2006] EWHC 10 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6334/2006 |
| Date | 22 January 2007 |
[2007] EWHC 10 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr. Justice Lloyd Jones
Case No: CO/6334/2006
Mr. Graham Walters (instructed by Everett, Tomlin, Lloyd and Pratt) for the Claimant
Mr. Clive Lewis QC (instructed by the National Assembly for Wales) for the First Defendant.
The Second Defendant did not appear.
This is an application pursuant to section 288, Town and Country Planning Act 1990 ("the 1990 Act"). The Claimant Mr. William Jeffrey Miles seeks to challenge a decision of the first defendant, the National Assembly for Wales ("the Assembly"), dated the 2 nd June 2006. By that decision a planning inspector acting on behalf of the Assembly, dismissed an appeal by the Claimant against a decision of the second defendant, Caerphilly County Borough Council ("Caerphilly CBC"), refusing an application for a certificate of lawful development.
On 26 th January 2005, the Claimant applied under section 191 of the 1990 Act for a certificate of lawfulness of existing use or development ("LDC") in respect of Penrhiwdarren Farm, Mynyddislwyn, the farm owned by the Claimant's father. The application described the use in respect of which the application was made as "use of land for recreational motorcycling activities and farming". The application was refused by Caerphilly CBC on the 13 th May 2005. The Claimant appealed against that refusal under section 195 of the 1990 Act to the Assembly. An inspector held a public inquiry. He gave his decision on the 2 nd June 2006, dismissing the appeal.
Section 191 makes provision for the issue of a certificate of lawfulness of existing use or development. It provides in relevant part:
"(1) If any person wishes to ascertain whether—
(a) any existing use of buildings or other land is lawful;
(b) any operations which have been carried out in, on, over or under land are lawful; or
(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,
he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.
(2) For the purposes of this Act uses and operations are lawful at any time if—
(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and
(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force.
…
(4) If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application."
Section 55 defines "development" as follows:
"(1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, "development," means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.
Section 57(1) imposes a requirement for planning permission.
"Subject to the following provisions of this section, planning permission is required for the carrying out of any development of land."
Enforcement of planning regulation is governed by Part VII of the 1990 Act. Section 171 A (1) provides:
"(1) For the purposes of this Act—
(a) carrying out development without the required planning permission, or
(b) failing to comply with any condition or limitation subject to which planning permission has been granted,
constitutes a breach of planning control."
Time limits for enforcement action are governed by section 171 B which provides, in relevant part:
"(1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.
…
(3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach."
Provision for the issue of an enforcement notice is made by section 172(1).
"(1) The local planning authority may issue a notice (in this Act referred to as an "enforcement notice") where it appears to them—
(a) that there has been a breach of planning control; and
(b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations.
…"
Section 173 makes provision for the contents and effect of an enforcement notice:
"(1) An enforcement notice shall state—
(a) the matters which appear to the local planning authority to constitute the breach of planning control; and
(b) the paragraph of section 171A(1) within which, in the opinion of the authority, the breach falls.
…
(3) An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes.
(4) Those purpose are—
(a) remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place; or
(b) remedying any injury to amenity which has been caused by the breach.
(5) An enforcement notice may, for example, require—
(a) the alteration or removal of any buildings or works;
(b) the carrying out of any building or other operations;
(c) any activity on the land not to be carried on except to the extent specified in the notice; or
(d) the contour of a deposit of refuse or waste materials on land to be modified by altering the gradient or gradients of its sides.
…
Article 3, General Permitted Development Order 1995 ("the GPDO") grants planning permission for certain classes of development. Article 3 (1) provides:
"-(1) Subject to the provisions of this Order and regulations 60 to 63 of the Conservation (Natural Habitats, &c.) Regulations 1994 (general development orders), planning permission is hereby granted for the classes of development described as permitted development in Schedule 2."
Schedule 2, Part 4 of the 1995 Order provides for temporary uses. Under Class B permitted development is defined in relevant part as follows:
"B. The use of any land for any purpose for not more than 28 days in total in any calendar year, of which not more that 14 days in total may be for the purposes referred to in paragraph B.2…"
It further provides in respect of the interpretation of Class B:
"B.2 The purposes mentioned in Class B above are –
…
(b) motor car and motorcycle racing including trials of speed, and practising for these activities."
In the present case the appeal to the Assembly was made under section 195 of the 1990 Act which provides:
"(1) Where an application is made to a local planning authority for a certificate under section 191 or 192 and—
(a) the application is refused or is refused in part, or
(b) the authority do not give notice to the applicant of their decision on the application within such period as may be prescribed by a development order or within such extended period as may at any time be agreed upon in writing between the applicant and the authority,
the applicant may by notice appeal to the Secretary of State.
(2) On any such appeal, if and so far as the Secretary of State is satisfied—
(a) in the case of an appeal under subsection (1)(a), that the authority's refusal is not well-founded, or
(b) in the case of an appeal under subsection (1)(b), that if the authority had refused the application their refusal would not have been well-founded,
he shall grant the appellant a certificate under section 191 or, as the case may be, 192 accordingly or, in the case of a refusal in part, modify the certificate granted by the authority on the application.
(3) If and so far as the Secretary of State is satisfied that the authority's refusal is or, as the case may be, would have been well-founded, he shall dismiss the appeal.
…"
The present application is made pursuant to section 288 of the 1990 Act which provides:
"(1) If any person—
(a) is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds—
(i) that the order is not within the powers of this Act, or
(ii) that any of the relevant requirements have not been complied with in relation to that order; or
(b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds—
(i) that the action is not within the powers of this Act, or
(ii) that any of the relevant requirements have not been complied with in relation to that action,
he may make an...
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Basingstoke and Deane Borough Council v Secretary of State for Communities and Local Government
...or alleged breach, of a condition. 35 Miss Boyd has also referred me to a decision of Lloyd Jones J in Miles v The National Assembly for Wales and Caerphilly Borough Council [2007] EWHC 10 (Admin). That was a case where the breach in question was alleged to be use for motorcycle racing. Tha......