R Christopher David Hatcher and Michelle Mary Hatcher v Monmouthshire County Council
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Cooke QC |
| Judgment Date | 11 July 2014 |
| Neutral Citation | [2014] EWHC 2914 (Admin) |
| Docket Number | CO/16939/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 July 2014 |
[2014] EWHC 2914 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Cardiff Civil and Family Justice Centre
2 Park Street
Cardiff
South Wales
CF10 1ET
His Honour Judge Nicholas Cooke QC
CO/16939/2013
The Claimants appeared in Person via Video Link
(As approved)
Before I give judgment in this matter, I would like to apologise for the delay that there has been. It is not actually directly connected with the time it has taken to prepare the judgment but I have encountered considerable difficulty in making arrangements to deliver it, as a result of some dates being shut off by the consequences of the death of my mother and my sitting in the Court of Appeal (Criminal Division), my conducting a rape trial which it was not appropriate to interrupt for various reasons and my having been engaged in a manslaughter trial which likewise is difficult to interrupt but which we are now interrupting in order for this judgment to be given.
Turning to the substance of the judgment. In this matter the claimants seek to challenge the decision of the Monmouthshire County Council to grant two retrospective planning permissions allowing the storage and repair of motor vehicles and the storage of building materials on land at St Arvans near Chepstow in Monmouthshire.
Permission was granted in relation to this challenge by Hickinbottom J on 6th March 2014. I indicate at the outset that I accept the claimants' arguments, summarised in paragraph 41 of the claimants' skeleton argument, that although I am here concerned with the two separate applications and grants they are in fact inextricably linked in terms of the decision-making process and that errors in relation to the consideration of one, if fundamental, wholly undermine the other.
The relevant land has a long, contentious and unfortunate planning history, well known to the parties and which it is unnecessary for me to set out here. It is noteworthy that that history includes two occasions when grants of planning permission have been quashed by consent.
I consider that the claimants' grounds of challenge in relation to which permission has been granted may fairly be summarised as follows. First, that the County Council erroneously and unreasonably determined that the presence of storage containers on the site was now immune from enforcement action, they having been present in excess of 4 years and their presence having involved building operations.
In consequence of that wrongful determination, the County Council is said to have taken into account an immaterial consideration when deciding the planning applications before it, i.e. the supposed existence of a historically unlawful but now established commercial use. Second, that the County Council determined the planning applications erroneously having regard to the concept that a significant extent of "agricultural storage" was a lawful alternative use of the site, for which planning permission was not needed, and which therefore constituted a valid potential future scenario for the use of the site, against which the impact of the development contemplated by the applications for planning permission might be judged.
Finally, the claimants contend that County Council unreasonably and fundamentally imposed a condition limiting hours of operation less restrictive than that advised by its environmental health officer in consequence of misleading advice to the planning committee.
The County Council disputes all of these grounds, arguing that its determinations were properly evidence based and did not involve the taking into account of any immaterial consideration. It contends that the history of the site's use was not relied upon as a self-standing justification for the grants of permission by reference to a supposed immune and continuable alternative use but rather, in the context of assessing the impact of what proposed under the applications.
"Agricultural storage" was, the County Council submits, a valid alternative future for the site which properly fell to be considered and the hours of operation condition imposed was a reasonable one, notwithstanding the environmental health officer's recommendation.
I shall deal with the various grounds, as I have condensed them, raised in turn. In relation to the first, having considered the available material carefully, I accept that the claimants' contention that the County Council identified an erroneous baseline for its determination.
In my judgment a careful look at the photographic and other evidence establishes that the activities on the site during the relevant period did not have the degree of permanence and/or fixed relationship with the land itself so as to be regarded as building operations. It was therefore a 10 year as opposed to a 4 year period for enforcement action which needed to be considered.
I accept the arguments summarised by the claimants in their skeleton argument at paragraphs 42 to 48. I do not regard the claimants' arguments in this area or in relation to this application generally as involving, as such challenges sometimes do, an inappropriate textual analysis of the planning officer's reports. Rather I consider the claimants' argument is concerned with substantial issues of materiality as opposed to matters of interpretation or evidential weight.
I consider, having regard to the location of this land, within the area of outstanding natural beauty, and the planning policies against which these applications fell to be judged, that the taking into account of such an erroneously identified baseline of itself necessarily involved the taking into account of an immaterial consideration of sufficient significance to dictate the quashing of both the grants of permission by which the consideration of such an erroneous baseline is in fact tainted.
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