R Bonsall v Secretary of State for Communities & Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stuart-Smith |
| Judgment Date | 17 March 2014 |
| Neutral Citation | [2014] EWHC 2022 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 March 2014 |
| Docket Number | CO/15495/2013 |
[2014] EWHC 2022 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
The Courthouse
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG
Mr Justice Stuart-Smith
CO/15495/2013
The Claimant appeared in Person
Mr Kimblin (instructed by Treasury Solicitor) appeared on behalf of the Defendant
(As approved)
This is Mr Bonsall's appeal pursuant to section 289 of the Town and Country Planning Act 1990 against the decision of the planning inspector, dated 2nd October 2013, requiring him to cease all residential use of premises known as The Stable, Common Road, Thorpe Salvin, South Yorkshire, and to remove all domestic fixtures, fittings and other items integral to the residential use of the premises.
Permission was given after an oral hearing on 19th November 2013 by Blake J. The grounds of claim identified the point of law at issue in the following terms:
"At paragraph 24 of the Decision Letter the inspector referred to the cases of Secretary of State for Communities and Local Government v Welwyn Hatfield Borough Council [2011] UKSC 15 and R (on the application of) Fidler v Secretary of State for Communities and Local Government [2011] EWCA Civ 1159. The inspector misdirected himself as to the application of those cases to the circumstances of my case…
In my case the evidence before the inspector (paragraphs 28 to 29) was of me having 'kept a low profile' in the nature of the appellant in the Old Furnace v Beesley (paragraph 31 of the Supreme Court judgment) these 'other aspects' Welwyn Hatfield (paragraph 44) 'would not without more disentitle reliance upon [the statutory time limits]'". The inspector therefore misapplied the law as set out in Welwyn Hatfield and Fidler and applied by inspectors in the Old Furnace and Four Pirates Lane. The common thread is to disentitle reliance on the statutory time limits there have to be acts of "positive deception", such as making a false application for planning permission (Welwyn Hatfield) or deliberate acts of concealment (Fidler), not merely "'keeping a low profile', as in my case."
At today's hearing Mr Bonsall appeared in person, as he had done before Blake J. The first respondent appeared today by counsel Mr Kimblin, the second respondent was not represented.
As a preliminary matter, I have separately ruled that the only issue before the court today is whether or not the inspector applied the legal principles in Welwyn Hatfield and Fidler correctly. At the start of this hearing I ruled in a separate judgment that Mr Bonsall was not entitled to raise another issue that he had canvassed in his skeleton argument and latest statement, namely, whether the principles of natural justice had been infringed by the inspector deciding the appeal without having given Mr Bonsall any or adequate warning of his intention to do so or any opportunity to address the issue of deception.
The Facts
I can deal with the background facts very shortly. I draw this account largely from the summary provided in the respondent's skeleton argument which I believe to be uncontroversial.
In March 1989 Mr Bonsall obtained planning permission for the erection of a barn on Green Belt land. The barn was substantially complete by the end of 1992. The inspector found in the appeals, to which I will refer later in greater detail, that it was constructed in accordance with the planning permission and used at least for a time for agricultural purposes. From the time the applicant first acquired the appeal site he hoped to build a dwelling on it. He had sought permission for a dwelling on the in the same application as he had submitted for the barn but the application for the dwelling had been refused. In October 1990 he applied again for a dwelling but his application was refused. In 1996 he made an application for the change of use of the barn to a dwelling, which was subsequently withdrawn. In about 2004 a local planning consultant told Mr Bonsall about the 4-year rule for unauthorised residential use and the possibility of obtaining a lawful development certificate (LDC) on the basis of occupation. In about 2006 and without having made any further application for a change of use, he started to convert the barn to a dwelling. The conversion was completed by about the end of 2007. The precise dates do not matter. From then on Mr Bonsall lived in it.
In 2012 he applied for an LDC for "existing use of building as a dwelling", His case being that residential use of the building had commenced by 5th June 2008 and had been continuous until 5th June 2012. In March 2013 an inspector dismissed his appeal against the council's refusal of an LDC on the basis that although the building had been fitted out for use as a dwelling before the 5th June 2008 and was capable of being lived in, the applicant had not met the burden of showing continuity of use over the 4-year period.
The inspector's decision in that appeal is not the subject of appeal in these proceedings, lthough the inspector in the present proceedings endorsed a number of the findings made originally by the inspector in the LDC appeal.
On 3rd May 2013 the council issued two enforcement notices in respect of the appeal site. I can summarise briefly the difference between them. The first has been referred to as "Notice A" and the second has been referred to as "Notice B". Notice A asserted that the building itself should be removed because of a failure to comply with the planning application process before it was originally erected. Notice B sought to enforce against the change of use of the building as a residance by requiring residential use to cease.
I need not refer in greater detail to the terms of Enforcement Notice A, save to say that the reason for issuing that notice was said to be that the building had originally been put up pursuant to reserved matters approval which had been obtained by a positive deception. The deception was said to be that, whilst saying the building was to be erected for agricultural use, that was never the case and it had never been so used and the whole exercise was part of a long term and deliberate deception to get residential accommodation on the site: hence Enforcement Notice A requiring Mr Bonsall to remove the building.
Today's hearing is concerned with Enforcement Notice B. The breach of planning control that was alleged was "without planning permission the change of use of the barn to a residential use in the approximate position hatched in black on the attached plan."
The reasons for issuing the notice were said to be:
"It appears to the council that the above breach of planning control has occurred within the last 4 years. The council considers it expedient to issue this notice for the following reasons…
the development represents an unsustainable form of development in an isolated location, with poor access to public transport and local amenities. As such the development is contrary to the NPPF which has a presumption in favour of sustainable development."
Under enforcement Notice B what Mr Bonsall was required to do was to cease any residential use of the building and to remove all domestic fixtures, fittings and other terms items integral to the change of use to residential. He was required to do that within 26 weeks.
Mr Bonsall appealed in time to the Secretary of State against both notices. The Secretary of State appointed a Mr Rogers to consider the appeal. After the hearing the inspector issued his decision which was dated 2nd October but I think issued on 3rd October 2013. In relation to Notice A, the notice requiring the removal of the building altogether, the inspector found that he was not satisfied that there had been deception that was integral to the planning application process relying substantially upon the fact that the barn had been used for many years before the change to using it as a dwelling commenced.
The inspector was satisfied that Mr Bonsall always hoped to use the building for residential purposes but he was not satisfied that Mr Bonsall had deceived the council in matters integral to the planning process when he originally obtained permission to construct the building as use as a barn.
Paragraphs 14 to 30 of the inspector's decision in relation to Notice B are central to this appeal and require to be read in full:
"14) The Inspector who determined the LDC appeal in March 2013 (see para.7 above) agreed that the work of conversion to a dwelling was completed by the end of 2007. He examined whether the appellant had discharged the burden of proof to demonstrate that the residential use had commenced by 5 June 2008 and had been continuous until 5 June 2012. He was satisfied, on the balance of probability, that the building had been fitted-out for use as a dwelling before 5 June 2008; it was capable of being lived-in and it had been occupied. This conclusion is accepted by the parties. However, he was not persuaded that the appellant had met the burden of proof to show continuity of use over that 4 year period.
15) I heard nothing at the inquiry to persuade me to differ from a number of the previous Inspector's conclusions. In summary, Mr Bonsall knew he needed planning permission to use the barn as a dwelling and knew it was unlikely to be granted, based on the outcome of past planning applications and appeals. He became aware of the '4 year rule' around 2004 and, as an intelligent, well qualified and inventive man, it is highly likely that he developed a...
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