Mr Robert Johnson and Mrs Marjolein Russnak-Johnson v Royal Borough of Windsor and Maidenhead
| Jurisdiction | England & Wales |
| Judge | Justine Thornton |
| Judgment Date | 01 February 2019 |
| Neutral Citation | [2019] EWHC 160 (Admin) |
| Docket Number | Case Nos: CO/3915/2018 & CO/2505/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 February 2019 |
[2019] EWHC 160 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Justine Thornton QC, sitting as a Deputy High Court Judge
Case Nos: CO/3915/2018 & CO/2505/2018
Mr W. Robert Griffiths QC and Ms Nicola Strachan (instructed by Sharpe Pritchard) for Mr and Mrs Johnston
Ms Frances Lawson instructed by Royal Borough of Windsor and Maidenhead
Ms Estelle Dehon (instructed by Treasury Solicitor) for the Secretary of State
Hearing dates: 9 October; 17, 18 December 2018
Approved Judgment
Justine Thornton QC, sitting as a Deputy High Court Judge:
Introduction
This is the judgment in two consolidated claims arising from protracted and ongoing enforcement proceedings in relation to land in Maidenhead.
The land subject to the enforcement proceedings is Fairview Stables, Darlings Lane, Maidenhead SL6 6PB. It is owned by Mr Johnston and houses stables. Mr Johnston's wife, Mrs Russnak-Johnston runs the stables and operates a livery service. Mr Johnston and Mrs Russnak-Johnston are together referred to as Mr and Mrs Johnston in this Judgment. The planning authority in whose area the land is situated is the Royal Borough of Windsor and Maidenhead (‘the Council’).
In an application for judicial review, Mr and Mrs Johnston seek to challenge the service of an enforcement notice by the Council, dated 16 May 2018, alleging material change in the use of the land from private equestrian use to a mixed private and commercial equestrian/livery use, as well as six notices alleging breach of planning conditions in a 1991 planning permission.
In the statutory appeal, under section 289 Town and Country Planning Act (TCPA), the Council seeks to challenge a costs decision made by a specialist costs decision maker on behalf of the Secretary of State for Housing, Communities and Local Government (‘the Secretary of State’) arising out of events at an aborted hearing in January 2018 in an appeal by Mr Johnston against an enforcement notice served previously by the Council. The Secretary of State awarded Mr and Mrs Johnston their costs of the appeal proceedings on grounds of the Council's unreasonable behaviour resulting in unnecessary or wasted expense.
Chronology
The land in question has been used for the grazing of horses for a number of years. It is subject to planning permission granted in 1991 containing 13 conditions.
It is common ground that, between 2006 and 2009, during previous ownership, the use of the land was equestrian use with “ DIY livery”. ‘ DIY livery’ is defined in Government Guidance on keeping horses on farms as where “ the care and management of the horse is the responsibility of the horse owner”. DIY livery is to be contrasted with “ full livery” where the care of the horse is the responsibility of the provider of the livery or yard manager and “ part livery” where the management and care of the horse is shared between the owner and livery provider.
In late 2009 / early 2010, the land was sold to Mr Johnston. Mr and Mrs Johnston undertook refurbishment work and applied unsuccessfully for planning permission, in 2011 and 2016, to restore, enlarge and modernise the stables.
In March 2016, the Council served a notice requesting information about a suspected breach of planning control on site (a Planning Contravention Notice under Section 171C TCPA). A further notice was served in July of that year.
On 1 February 2017, the Council served an enforcement notice in relation to the land (‘the First Enforcement Notice’). The notice alleged a breach of planning control arising from:
“a material change of use of the land from the keeping of horses for recreational use, including stabling and grazing of horses and training and exercising of horses in the approved menage to a commercial stud farm and livery with residential occupation”
Mr and Mrs Johnston appealed against the service of the First Enforcement Notice. On 17 th January 2018, the inquiry into the appeal against the First Enforcement Notice opened. The Council decided to withdraw the enforcement notice shortly after the inquiry opened, following its unsuccessful application for an adjournment on the basis of a very late change in circumstances. There was some debate between the parties at the hearing before me as to the basis of the application for adjournment, but it emerged as common ground that the Council's application was based on three factors:
a. Further planning breaches had been detected on site and required investigation;
b. Seventy-one pages of late evidence (livery agreements and relevant guidance) were served on behalf of Mr and Mrs Johnston at 1pm the day before the inquiry opened;
c. The Council wished to investigate whether a criminal offence had been committed with the provision of misleading information in the response to the Planning Contravention Notices.
The Inspector (‘the Appeal Inspector’) refused the Council's application to adjourn, whereupon the Council withdrew the Enforcement Notice. Both sides applied for costs in relation to the aborted inquiry.
On 16 th May 2018, the Council served a second enforcement notice (“the Second Enforcement Notice”) and six Breach of Condition Notices. Three of the notices were served on Mr Johnston and three were served on Mrs Johnston. The Second Enforcement Notice refers to the breach of planning control as:
“the material change in the use of the land from the keeping of horses for private recreational purpose comprising non commercial DIY livery, functioning with a maximum of six horses and six stables, to a mixed use comprising of private stabling and commercial livery with ancillary activities including ‘assisted’ DIY livery, part livery, full livery, schooling, hacking, lessons, massage, grooming, clipping and the formation of hardstanding, the erection of buildings and the siting of a metal container to facilitate the material change in the use of the land”
The Breach of Condition Notices each relate to breaches of conditions 7, 9 and 10 of the 1991 planning permission.
Mr and Mrs Johnston appealed against the service of the Second Enforcement Notice and issued judicial review proceedings challenging the issue of the Second Enforcement Notice and the Breach of Condition Notices (“BCNs”). The grounds of claim were as follows:
a. The Council could not rely on conditions 7, 9 and 10 of the 1991 planning permission as the time for taking any enforcement action in relation to those conditions had expired;
b. As a matter of construction, the conditions did not have the effect of limiting any development of the Claimant's land other than the land in respect of which the permission had been granted – namely, the retention of internal access road and replacement of lean-to to existing stables;
c. The Second Enforcement Notice was of considerably wider ambit than the First Enforcement Notice and was therefore an unlawful second bite at enforcement contrary to section 171B(4)(b) of the TCPA 90.
In July 2018, Robin Purchas QC, sitting as a Deputy High Court Judge, granted permission in relation to the challenge to the decision to issue the Breach of Condition Notices on grounds of the scope of the conditions and the effect of any change of use. He refused permission on the basis that the decision to issue the Second Enforcement Notice was perverse or contrary to article 6 of the European Convention on Human Rights. Any arguments to this effect could and should be properly addressed as part of the statutory appeals. The argument that the BCNs were served out of time was wholly misconceived on the basis that Section 171B(4)(b) TCPA provides for an extension of time and the Council contended that the breaches arose within the ten year period. He refused the application for a stay in respect of criminal proceedings for breach of the earlier planning contravention notices.
On 13 September 2018, the Secretary of State issued his decision on costs arising from the aborted appeal hearing on 17 January 2018. He awarded Mr and Mrs Johnston their costs of the appeal proceedings on grounds of ‘unreasonable’ behaviour by the Council resulting in unnecessary or wasted expense. He declined to award the Council partial costs, in respect of the expense incurred in preparation for the inquiry on 17 January 2018, on the basis that the Council was not put to unnecessary or wasted expense as a result of the appellant's unreasonable behaviour in submitting late evidence.
In response, the Council challenged the costs decision on grounds of Wednesbury unreasonableness; mistake of fact and error of law under s.288 of the Town & Country Planning Act. The challenge proceeded as an appeal under s.289 TCPA.
On 9 October 2018, the substantive hearing into the judicial review application opened before me in the High Court. It was adjourned part heard at the request of the Council, on grounds that the Council had been taken by surprise at propositions of law relied on by Counsel for Mr and Mrs Johnson. The hearing was adjourned and the parties were ordered to produce addendum skeleton arguments on the point of law arising.
By order dated 15 November 2018, the judicial review claim and statutory appeal were consolidated, to be heard on 17 th and 18 th December 2018. The statutory appeal was to proceed by way of a rolled up permission hearing with any substantive hearing to follow immediately if permission was granted.
On 10 th December 2018, the trial into the Planning Contravention Notices served in 2016 was heard at Reading Magistrates Court. After...
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