Peter Robert Marlow v The Secretary of State for the Environment, Transport and the Regions
| Jurisdiction | England & Wales |
| Judgment Date | 19 November 1999 |
| Judgment citation (vLex) | [1999] EWHC J1119-4 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 November 1999 |
| Docket Number | CO 1509/99 |
[1999] EWHC J1119-4
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
Mr George Bartlett QC
(Sitting as a Deputy Judge of the Queen's Bench Division)
CO 1509/99
MR R LEWIS (instructed by Donne Mileham & Haddock, Brighton, East Sussex BN1 3YB) appeared on behalf of the Appellant.
MR D FORSDICK (instructed by The Treasury Solicitors) appeared on behalf of the Respondent.
MR BARTLETT QC: Mr and Mrs Marlow (whom I will call "the Appellants") appeal under section 289 of the Town and Country Planning Act 1990 against the dismissal by an Inspector, appointed by the First Respondent, of their appeal against an enforcement notice served by the Second Respondent. They make application under section 288 of the Act to have quashed the same Inspector's decision dismissing their appeal against the Second Respondent's refusal of a certificate of lawful use. Both matters are dealt with in a single decision letter which also covered other appeals in respect of which no challenge is now made.
The appeals were conducted by written representations. The Appellants trade as Marlowe Motors, using (along with other premises) a former chapel building and its curtilage, together with parts of the adjoining unadopted road, Albert Road in the London Borough of Sutton.
The chapel was in use as such until 1993. The Enforcement Notice identified, as the breach of planning control, the use of the former chapel site for the general parking and storage of vehicles. It required the discontinuance of the use of the land for parking and/or storage of motor vehicles. The application for a certificate of lawful use specified as the use for which application was made, was for the general parking of motor vehicles.
The Appellants' appeals against the Enforcement Notice and against the refusal of a certificate were considered by an Inspector along with five other appeals, one of which related to the insertion of a folding door in the former chapel building, and the four others of which concerned the storage or parking of vehicles on various plots of land at Albert Road.
The Appellants appealed against the Enforcement Notice on the former chapel land on Grounds (a), (b), (d), (f) and (g) of section 174 of the 1990 Act. They submitted a large number of signed statements about the previous use of the land.
In relation to Ground (b), the Inspector in his decision letter said this:
"40. The notice alleges use for'general parking and storage' of motor vehicles. You say that no storage takes place, only the parking of vehicles which leave the site daily. Letters from residents refer to parking by night as well as by day. There is also evidence that recovery vehicles have frequently delivered cars to the site. The site appears to have been used in such a way that some of the vehicles could not be moved on to or off the land without moving others out of the way. From the evidence it seems to me that the site may have been used for parking or for a mixture of parking and storage, but it is difficult to be precise. I note that the requirements of the notice refer to 'parking and or storage', which is not quite the same as the allegation."
41. I have decided to use the powers available under Section 176 of the Act to correct the notice and to remove the inconsistency, so that the allegation refers to 'parking or storage'. I shall also delete the word 'general' which in this context is superfluous…."
The Inspector then turned to Ground (d), and he said this:
"42. You have submitted various statements and documents to support your claim that the unauthorised use has been carried on for at least ten years and is therefore immune from enforcement. As I have already commented, one of the problems of assessing evidence by the written representation procedure is the lack of opportunity to question witnesses. Mr Rideout's affidavit is an example of evidence which, though not untrue, is significantly affected by his subsequent letter giving further information in response to the council's queries.
43. It is clear from the supplementary information that while the building was used as a chapel, cars were often parked on the adjacent land which now forms the site subject to Appeal B. Parking sometimes occurred when religious services were not being held, but during this time the site was fenced and gated. It seems that parking was only by members of the church who held keys to the gate. In these circumstances, the parking was ancillary to the religious use of the site and in planning terms was not a use of the land in its own right.
44. Even if the parking activity was such as to constitute a use of the land, it would only have been one component of a mixed use which included use for religious purposes. The religious use evidently ceased in 1993, well within the period of ten years before the enforcement notice was issued.
45. Whichever way this situation is looked at (either cessation of a primary use leaving an ancillary activity, or cessation of one component of a mixed use) a material change of use of the land has occurred within the last ten years. Ground (d) therefore fails."
Later in his decision, the Inspector dealt with the appeal against the refusal of a certificate of lawful use. He said this at paragraph 61:
"The issues raised by this appeal are very similar to those relating to ground (d) of Appeal B [that is to say the enforcement notice appeal]. As I have explained in considering that appeal, up to 1993 parking adjacent to the chapel building was, in planning terms, part and parcel of the use of the planning unit for religious purposes, not a use in its own right. A material change of use occurred when the religious use ceased. The use applied for has not become lawful through the passage of time and the council's decision to refuse an LDC was therefore well founded."
Mr Robert Lewis who appears for the Appellants says that in concluding as he did the Inspector made two errors of law. The first error was to conclude that the parking during the years of chapel use was ancillary to that use, and the fact that such parking sometimes occurred when religious services were not being held suggested that it could have been an independent use. The Inspector erred in treating as the test of whether it was ancillary the apparent fact that parking was only by members of the church who had keys to the gate. Had he approached the matter correctly, says Mr Lewis, the Inspector would have asked whether the parking was linked in a functional sense to the chapel use and, if he had found it was not, he should have concluded that the parking was a separate primary use.
The second error which Mr Lewis contends that the Inspector made was in concluding that, if the parking was not ancillary but was a component of a mixed use, the cessation of the religious use, as one component of the mixed use,...
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