North Wiltshire District Council (R) v Cotswold District Council
| Jurisdiction | England & Wales |
| Judge | MR STRACHAN,MR JUSTICE KING,Mr WILLIAMS,MR PICKLES,‘MR. JUSTICE KING’ |
| Judgment Date | 23 June 2009 |
| Neutral Citation | [2009] EWHC 3702 (Admin) |
| Docket Number | CO/7838/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 June 2009 |
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice King
CO/7838/2008
Mr C Howell Williams QC and Mr C Ormondroyd (instructed by Sharpe Pritchard) appeared on behalf of the Claimant
Mr S Pickles (instructed by Cotswold DC, Legal Services) appeared on behalf of the Defendant
Mr T Straker QC and Mr J Strachan (instructed by Memery Crystal) appeared on behalf of the First Interested Party
(As approved)
Introduction
1. This is an application to quash the decision dated the 25 th of June 2008 of the defendant Cotswold District Council acting by its Planning (Regulatory) Committee, to grant the first interested party a Certificate of Lawfulness of existing use or development (the Certificate) pursuant to section 191 of the Town and Country Planning Act 1990 (The Act) in relation to Kemble Airfield, Gloucestershire. The certificate was duly issued on the 3 rd July 2008. The use is described in the certificate as “the primary established use of Kemble Airport for general aviational purposes”.
2. The site of the airfield which is said to be the site of the former RAF Kemble Airfield, straddles the boundary between the administrative area of the claimant council and that of the defendant council. When these proceedings were instituted the claimant was the North Wiltshire District Council. Consequent upon recent statutory re-organisation of local government, the North Wiltshire District Council has ceased to exist and the Wiltshire Council is now the sole primary authority for Wiltshire. Accordingly these proceedings now continue in the name of Wiltshire Council. Nothing however turns upon this.
3. The application is also to quash what is said to have been a decision of the defendant made on or before the 30 of July 2008 to modify the certificate. This is the date of a letter sent to the agent of the first interested party by Mr Napper, the Major Development Officer of the defendant, in which he enclosed a plan to be attached to the Certificate for the purposes of the Second Schedule to the Certificate that (to quote the letter) “defines the extent of (the certificate of lawfulness) to that land under the administration of (the defendant district council)”. The Second Schedule referred to “Kemble Airfield Kemble Gloucestershire”. Copies of the same plan were to be added to the Public Register. This according to the letter was “for the purposes of clarity”. Whether or not this in fact amounted to a decision to modify the existing certificate is a matter to which I shall return.
section 191
4. I turn at the outset to the terms of section 191. It provides as far as is material as follows:
“(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…
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 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 as modified by the local planning authority or a description substituted by them.” ( My emphasis).
5. I interpret sub section (4) of section 191 as meaning that if the local planning authority are satisfied, based upon the information with which they have been provided, of the lawfulness at the time of the application of the use described in the application, then as a matter of law they are under a duty to issue a certificate in respect of the use so described. In my judgment on the wording of the subsection it is only if they are not so satisfied of the lawfulness of the use so described, that they then have the power to consider whether, as an alternative to rejecting the application, they should issue a certificate of lawfulness with a different description – either a modified version of the description in the application or a description substituted by them.
6. This is to be contrasted with the position in relation to an application for a certificate of lawfulness of proposed use or development under section 192 of the Act. Subsections (1) and (2) of that section provide as follows:
“(1) If any person wishes to ascertain whether –
(a) any proposed use of buildings or other land; or
(b) any operations proposed to be carried out in, on, over or under land,
would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use or operations in question.
(2) If, on an application under this section, the local planning authority are provided with information satisfying them that the use or operations described in the application would be lawful if instituted or begun at the time of the application, they shall issue a Certificate to that effect; and in any other case they shall refuse the application.”
On this wording the planning authority do not have any option but to reject an application once they have decided they are not satisfied as to the lawfulness of the proposed use as described in the application. They do not have the option, given to them under section 191, of issuing a certificate with a modified or substituted description which they consider would be lawful.
7. I return to the further obligations imposed upon the local planning authority by section 191 material to this application. They are contained in subsection (5) which concerns the contents of any certificate issued. This provides:
“(5) A Certificate under this section shall –
(a) specify the land to which it relates;
(b) describe the use, operations or other matter in question (in the case of any use falling within one of the classes specified in an order under section 55(2) (f), identifying it by reference to that class);
(c) give the reasons for determining the use, operations or other matter to be lawful; and
(d) specify the date of the application for the Certificate.”
8. The significance of any certificate once issued is to be found in subsection (6) of the section which creates a conclusive presumption of lawfulness. It provides:
(6) The lawfulness of any use, operations or other matter for which a Certificate is in force under this section shall be conclusively presumed.”
general observations on the court's approach to judicial review of a decision under section 191
9. Before turning to the facts underlying this application or the grounds upon which it is made I make the following further observations on the approach to be adopted by this court having regard to the terms of section 191. It is classic law, as submitted by Mr Straker QC for the first interested party, that the basis upon which administrative action is subject to control by judicial review falls under the three main heads of illegality, irrationality and procedural impropriety. For this proposition I was referred to the well known exposition of principle given by Lord Diplock in Council of Civil Service Unions and others v. Minister for the Civil Service [1985] 1 AC 374 at page 410 :
“My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.”
10. In this case the attack made by the claimant upon the decision to grant the certificate in the terms it was, is now for the most part confined to an attack based upon allegations of illegality. The validity of this attack must necessarily be viewed against the terms of section 191itself. There is an additional ground under the head of irrationality alleging that the decision was influenced by an irrelevant consideration, namely the planning...
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