Phillips v Secretary of State for Communities & Local Government
| Jurisdiction | England & Wales |
| Judgment Date | 20 November 2008 |
| Neutral Citation | [2008] EWHC 3117 (Admin) |
| Docket Number | CO/5209/2007 and CO/4878/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 November 2008 |
[2008] EWHC 3117 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Mr David Holgate Qc
(Sitting as a Deputy High Court Judge)
CO/5209/2007 and CO/4878/2007
Mr John Hobson QC and Mr Robert Palmer (instructed by Messrs Challenor Gardiner, Oxford OX1 1RR) appeared on behalf of the Appellant
Miss S-J Davies (instructed by the Treasury Solicitor, London WC2B 4TS) appeared on behalf of the First Respondent
THE DEPUTY JUDGE: This is a challenge to a decision by the Secretary of State given on his behalf by an inspector by letter dated 17th May 2007, relating to a site adjacent to the A40 Northern Bypass, Oxford, known as Phillips Tyres. The second respondent, South Oxfordshire District Council, does not appear in these proceedings.
The inspector dismissed the appellant's two appeals, the first being against an enforcement notice issued by the District Council on 30th September 2005, and the second an appeal under section 195 of the Town and Country Planning Act 1990 against the second respondent's refusal of an application under section 191 for a lawful development certificate (“LDC”) in relation to an existing use of the land.
I am giving judgment today at the conclusion of oral argument, and I hope that I may be forgiven any infelicities of expression during the course of this extempore judgment.
Factual Background
The background is helpfully summarised in the inspector's decision letter at paragraph 7. It was common ground at the inquiry that a tyre-related business had been run from the appeal site since about January 1973. In 1993 Mr Phillips submitted an application to the District Council for an LDC which described the then existing use as a “scrap tyre transfer station”. The District Council granted that certificate on 6th September 1993.
Paragraph 11 of the decision records that Mr Phillips' stepfather had moved his business to the site from Kidlington during 1971. The business was described as having involved originally the collection, sorting and disposal of worn tyres from other tyre businesses around the district. The conditions of the tyres varied from scrap to part-worn. As part of the process of growing a viable business, the retail sale of part-worn tyres to the public developed at some point. Sales of new tyres became a feature of the business, either sourced as unused spares from vehicle breakers or as surplus stock from established tyre dealers.
It appears that the council took the view in 2005 that in about 2001 what they considered to be a material change of use had taken place on the site, to a mixed use including a range of other activities. As a result on 30th September 2005 they issued an enforcement notice which complained of a breach of planning control in these terms:
“without planning permission, change of use of the land to use for mixed purposes namely (1) use as a scrap tyre transfer station and (2) use for the sale and fitting of new and used tyres.”
The enforcement notice allowed six months for compliance with its “requirements” from the date when the notice was to take effect. As Mr Hobson QC, who appears on behalf of the appellant, explained, that was explicitly included in the notice so as to enable the landowner to make an application during that time for an LDC in relation to the activities then taking place on the site.
Indeed, on 30th January 2006 an application was made under section 191 of the 1990 Act for an LDC. The District Council issued its decision refusing the application on 25th October 2006. They refused to certify that on 1st February 2006, the date when the application was received by the council being the material date, the undertaking of the following mixed uses were lawful within the meaning of section 191, namely (1) use as a scrap tyre transfer situation and (2) use for the sale and fitting of new and used tyres.
They gave two reasons for that decision, the first of which was that the appellant had failed to satisfy the District Council on the balance of probability that the current mixed use of the site had taken place for a continuous period of 10 years prior to 30th September 2005, being the date of the council's enforcement notice. The second reason reads as follows:
“2. A material change of use of the site to a mixed use(s), including activities unrelated to the tyre business, occurred in or around 2001 such that the current mixed use of the site, for which a Certificate of Lawful Existing Use is sought, has not taken place for a continuous and uninterrupted period of 10 years.”
After 10 years' continuous use of the site for that mixed use would have had the effect of making that use lawful (sections 171B(3) and 191(2)).
The appellant appealed to the Secretary of State against that decision under section 195 and an appeal was duly made under section 174 to the Secretary of State against the enforcement notice. Both appeals were held by the same inspector, who conducted a public inquiry on 24th and 25th April 2007, carried out a site visit on the second day of the inquiry and issued his decision letter on 17th May 2007.
In this court there are two sets of proceedings. First of all, there is a challenge to the first respondent's decision on the LDC appeal, under section 288 of the Town and Country Planning Act 1990, and there is, secondly, an appeal under section 289 of the same Act against the first respondent's decision on the enforcement notice appeal. The second appeal required leave from the court, which was granted on 1st November 2007 by Collins J, at which stage he also joined the two sets of proceedings for hearing today.
The powers of the court
The powers of the court under section 288 to intervene in relation to a decision on an LDC appeal are given by subsection (1) and are well known. The powers under section 289 enable the court to intervene in order to remit an enforcement notice appeal to the Secretary of State arise if an error of law is established.
The general principles upon which the court acts in proceedings of this kind are well established, having been set out in cases such as Seddon Properties v Secretary of State for the Environment (1978) 42 P&CR 26. In addition there is an obligation on the part of the Secretary of State or his inspector to give legally sufficient reasons for the decision. The principles which apply, in particular on adequacy of reasons, are of course set out in the well-known cases of Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 and South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953.
The issues before the inspector
In paragraph 5 of the decision letter the inspector agreed to amend the LDC application with the consent of both parties, so that the terms of the application he was considering read as follows, “Mixed purposes namely (1) use as a scrap tyre transfer station and (2) use for the sale and fitting of tyres”, which involved the deleting the adjectives “new and used”.
At paragraph 7 of the decision letter the inspector recorded the common ground which had been established at the inquiry, and with which he agreed, that the appeal site should be treated as a single planning unit. The issue in the appeals before him was whether or not a material change of use had occurred during the relevant 10-year period by reference to the whole of that planning unit. When the inspector came to consider that question in paragraphs 28 and 29 of the decision letter it is apparent that he determined that matter by reference to the whole of that single planning unit. There is no dispute in this court about that.
In paragraph 10 of the decision letter the inspector set out his general approach to the evidence that he had heard at the inquiry. As I understand the position the evidence was taken on oath, as would be normal for proceedings of that kind, and he said as follows:
“10. The resolution of this issue is entirely about matters of fact and law; as there is no ground (a) appeal or deemed application for planning permission the planning merits do not arise. The test for the evidence is upon the balance of probability and the onus of proof rests with the appellant. All of the witnesses at the inquiry gave their evidence on oath and it is right to record that I am satisfied that all of those witnesses gave their testimony in good faith and as truthfully as they could, subject only to the normal limitations of memory. It is mainly in the interpretation of what was seen, remembered or recorded at any given time by the individuals concerned where the differences most likely lie.”
I note in passing that the inspector correctly approached the matter on the basis that the test to be applied in relation to the evidence involved an onus of proof on the appellant, the standard of proof being the balance of probability.
In paragraph 9 of the decision letter, the inspector set out the main issue as he saw it in the appeals, that issue being identical for both appeals:
“9. The issue is whether the alleged mixed use, being also the use described in the LDC application, commenced before 30 September 1995 and whether it has continued during the following 10 years, uninterrupted by the introduction of other materially different uses, such as to amount to a new mixed use.”
The inspector reached a very clear conclusion in paragraph 13 of the decision as regards the position prior to...
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...extent of any use”: ( Phillips v Secretary of State In Communities and Local Government and South Oxfordshire District Council [2008] EWHC 3117 (Admin) at [24] (David Holgate QC). Mr Walters submitted that the Inspector erred in not considering the functional relationship of the development......