R (East Sussex County Council) v Secretary of State for Local Communities and Others
| Jurisdiction | England & Wales |
| Judgment Date | 18 December 2009 |
| Neutral Citation | [2009] EWHC 3841 (Admin) |
| Docket Number | Case No: CO/9845/09 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 December 2009 |
[2009] EWHC 3841 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: David Elvin QC
(Sitting as a Deputy High Court Judge)
Case No: CO/9845/09
Miss L Busch (instructed by Sharpe Pritchard) appeared on behalf of the Claimant
Mr J Clay (instructed by Heringtons) appeared on behalf of the Second and Third Defendants
APPPROVED JUDGMENT
The Deputy Judge (David Elvin QC):
This is an application under section 289 of the Town and Country Planning Act 1990 (“the 1990 Act”) for permission to challenge an enforcement appeal decision of the Secretary of State's inspector given by letter dated 7th August 2009 (“the decision letter”), allowing an appeal against an enforcement notice served by the applicant, East Sussex County Council (“the County Council”), which notice was dated 19th November 2008 (“the Notice”). At the hearing Miss Busch represented the applicant County Council and Mr Clay represented the second and third defendants, Mr Michael and Mr Gary Robins, who were the successful appellants against the enforcement notice before the inspector. The Secretary of State was not represented.
While this is a permission hearing, this concerns an appeal following an enforcement inquiry which turned substantially on a point of law and evidence was not called. Although the issue before me may be considered susceptible of argument up to a point, I have formed a clear view on the legal issue which lies at the heart of this application. Since I have concluded that the inspector was plainly correct as a matter of law, the challenge must fail. I therefore will refuse permission but, given the circumstances, it seems appropriate that I should explain in a little more detail than usual for a permission hearing why I have reached this decision.
The enforcement notice relates to a site at Robins of Herstmonceux, Sandbanks, Chilsham Lane, Herstmonceux in East Sussex, shown on a plan attached to the enforcement notice comprising two parcels lettered A and B. Although it is not material to this application the site lies in the countryside forming part of the High Weald Area of Outstanding Natural Beauty which is subject to highly restrictive planning policies protective of its visual amenity and nationally important landscape qualities.
The Notice was issued under section 171A(1) (a) of the 1990 Act and, having described the land, it recited that:
“This notice is issued by the Council because it appears to them that there has been a breach of planning control within paragraph (a) of Section 171A(1) of the above Act, at the land. They consider that it is expedient to issue this notice, having regard to the provisions of the development plan and to other material planning considerations.”
The Notice alleged the following breach of planning control:
“Without planning permission there has been an unauthorised change of use of the land to a mixed use of land including for the importation, deposit, processing and storage of waste materials.”
It then stated the reasons its issue, which related to adverse effect on the AONB and through traffic in narrow country lanes, and then set out the steps to be taken in order to restore matters and remedy the breaches of planning control:
“What are you required to do:
1. Cease the use of the land (Areas A and B) for the importation, deposit, storage and processing of waste material. The term ‘waste materials’ includes, but is not exclusively, concrete, bricks, paving slabs, hardcore, road planings, tyres, plastics, metals and cable.
The time for compliance: one day after this Notice takes effect.”
Two further steps were specified, both with their own times for compliance, three in all, but like reason 1, which I have quoted, all related to removing the effects of waste activities—if I can put it that crudely—on the site and restoring the land.
The notice was said to take effect on 20th December 2008, unless it was appealed. The attached plan shows two areas of land, but it is common ground before me, as it was before the inspector, that the areas of land comprised a single planning unit over which it was alleged there had been a single breach of planning control, namely a material change of use to a mixed use relating to waste as set out above.
The Robinses appealed the Notice, thus suspending its effect, on grounds (b), (d), (f) and (g) set out in section 174(2) of the 1990 Act. It is important to note the following matters which were common ground between the parties. Firstly, as I have already mentioned, although two areas were shown on the plan attached to the Notice it was common ground that they formed a single planning unit. Secondly, the breach of planning control was a breach caused by the material change to a single though mixed use comprising waste and related uses. Thirdly, the mixed use comprised matters which were both “county matters”, i.e. matters within the scope of the powers and duties of the county council as planning authority and also matters within the scope of the powers of the district council as local planning authority within section 1 of the 1990 Act (which I will refer to as “district matters” for convenience). The definition of what is a “county matter” is found in s. 1(5)(c) and Schedule 1 to the 1990 Act. It is at the heart of the issue before me that the mixed use was a single composite use although it comprised what might be termed both county and district elements. Section 1(5)(c) excepts from the general allocation in section 1 of planning functions between local and county planning authorities those functions which are specified in Schedule 1.
The County Council maintains that at no time (save in respect of a minor issue recorded at paragraph 19 of the decision letter) has it sought to under-enforce in respect of the breach of planning control specified in the Notice. On that basis, certain elements of the mixed use which were not the subject of the required remedial action by the Notice would receive deemed planning permission under section 173(11) of the 1990 Act. The County Council's case was that the county and district elements of the mixed use should both be enforced against but, since the County Council only had power to enforce against county matters, it was possible to “decouple”, or separate, the county and district elements of the breach of planning control and enforce only against the county matters, that is to say those relating to waste activities.
Miss Busch confirmed that it had been made it clear to the inspector that the intention of the County Council was simply to decouple the district matters from the enforcement notice so as to avoid the deeming effect of section 173(11) in respect of them in reliance on what was perceived to be the effect of the Court of Appeal's judgment in Fidler v The First Secretary of State (2005) 1 P & CR 12.
Mr Michael Robins and Mr Gary Robins appealed to the Secretary of State and alleged that the notice was fatally flawed having regard to the requirements of section 173 of the 1990 Act and the guidance in Section 2 of the Annex to Circular 10/97 “Enforcing Planning Control”. The Robinses’ planning witness, Mr Noel (who also provided a witness statement in the proceedings), made it clear in his proof of evidence (section 6 in particular), exchanged in advance of the inquiry, that the Notice failed to specify the various elements of the alleged change of use to a mixed use and set out in some detail and discussed what the elements might be and why they were objectionable.
As the inspector stated in paragraph 3 of the parallel costs decision letter, which was issued with the decision letter on the enforcement appeal on 7th August 2009:
“The appellants’ evidence gave clear notice of the issues that would be advanced with regard to the contents of the notice and the letter from the Planning Inspectorate dated 24 July 2009 also drew attention to the eventual outcome of the appeal as one of the options likely to be available. The County Council accepts that the points put in relation to its interpretation at paragraphs 2.10 and 2.11 of Circular 10 of 97, Enforcing Planning Control: Legislative Provisions and Procedural Requirements, which would require an explicit departure from established national policy, are uncertain.”
As that passage notes, PINS had written a letter at the inspector's request on 24th July, although I accept, as Miss Busch stated, that the letter was received only one working day prior to the commencement of the inquiry. Nonetheless the position had been made clear, as the inspector found, from the appellant's planning evidence.
At the appeal the inspector heard submissions regarding the form of the Notice and the allegations of the breach and the consequences of correction of the Notice and submissions which appear to be substantially along the lines of those that were advanced to me by Miss Busch today – in other words, that it was possible to decouple county and district matters so that the County Council could enforce against county matters only and avoid engaging section 173(11) and deeming planning permission for the district elements of the breach.
The inspector allowed the appeal and directed that the Notice be quashed and made an award of costs against the County Council. He did so, rejecting Miss Busch's submissions, because of what he...
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Christopher Collins v Secretary of State for Communities and Local Government and Another (First Respondent)
...the statute: see R (on the application of) Essex County Council v Secretary of State for Communities and Local Government and others [2009] EWHC 3841 (Admin) per David Elvin QC DHCJ at [46] and [47]. 33 In my judgment, there is clear prejudice in leaving in place an enforcement notice that ......