R Grendon v The Secretary of State for Communities and Local Government and Another

This is a renewed application for permission to appeal from an order made on 14 July 2006 by McCombe J sitting in the Administrative Court on an application made by Mr Stephen Grendon under section 288 of the Town and Country Planning Act 1990. The relief sought by that application is an order quashing the decision of the First Secretary of State through his appointed inspector and communicated by letter dated 5 January 2006. The inspector had dismissed Mr Grendon's appeal under section 195 of the 1990 Act from the decision of Cotswold District Council as local planning authority contained in a notice dated 28 April 2005. The planning authority's decision was to refuse a Certificate of Lawful Use in respect of a building at Brimpsfield Common in Gloucestershire. The judge dismissed the application under section 288 of the Act. On 14 March 2007 he refused permission to appeal. Mr Grendon's application for permission to appeal was refused by this court by Laws LJ on 27 April 2007 after consideration on the papers. A renewed application now comes before us on an oral hearing.

Section 19(1)(i) of the 1990 Act enables a person who wishes to ascertain whether any existing use of buildings is lawful to apply to the local planning authority. In that context a use is lawful at any time if no enforcement action may then be taken in respect of it: whether because the use did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason (section 191(2)). If, on an application under section 191(1), the local planning authority are provided with information satisfying them of the lawfulness of the use at the time of the application they shall issue a certificate to that effect. Otherwise, they shall refuse the application.

In the present case Mr Grendon's application under section 191 was made on 16 July 2004. The land and buildings to which the application relates was described as Hermit's Corner, Brimpsfield Common. The existing use was said to be use of the building as dwelling. That use was said to have begun in the autumn of 1996. The grounds on which the Certificate was sought were that the use began more than four years before the application was made. The application was accompanied by a letter from planning consultants to which were attached a number of statements, plans and other documents.

Section 171B of the 1990 Act prescribes time limits after which no enforcement action may be taken in respect of a breach of planning control. Subsection (1) relates to the carrying out of building, engineering, mining or other operations on, over or under land and prescribes a four year period. That subsection is not in point in the present case. Subsections(2) and (3) are in these terms:

“(2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.”

“(3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach.”

The important feature in the present context is that where the alleged breach of planning control consists of the change of use of a building to use as a single dwelling house the relevant period after which no enforcement action can be taken so that the existing use becomes lawful for the purposes of section 191(2) of the 1990 Act is four years. In the case of any other change of use constituting a breach of planning control, the relevant period is ten years.

The notice of 28 April 2005, by which the decision of the local planning authority refusing a Certificate of Lawful Use was notified to Mr Grendon and his agent, gave as the reason for that authority's refusal:

“Having regard to the evidence submitted by all parties, the Local Planning Authority considers that on the balance of probability the use of the structure at Hermits Corner for residential purposes for a period in excess of 10years has not been sufficiently proven, therefore the application does not satisfy the provisions of Section 191 of the Town and Country Planning Act 1990.”

It is implicit in that reason, although not stated in terms, that the planning authority did not regard the case as falling within section 171B(2): “change of use to use as a single dwelling house”. The authority plainly treated the change of use as falling within section 171B(5); and on that basis were not satisfied that the change had occurred more than ten years before the date of the application. Given that it was stated on the face of the application, which, as I have said, was 16 July 2004, that use had commenced in 1996 and that it appeared from Mr Grendon's own statement that he had not purchased the land until November 1994, that conclusion was inevitable.

Mr Grendon appealed to the Secretary of State, as he was entitled to do under section 195(1)(a) of the 1990 Act.Subsections (2) and (3) of section 195 provide that, on such appeal, if the Secretary of State is satisfied that the planning authority's refusal is not well-founded he shall grant the Certificate under section 191 but if satisfied that the refusal is well-founded he shall dismiss the appeal. The First Secretary of State—being the relevant Secretary of State at that time—appointed an inspector; an inquiry was held on 8 December 2005 at which evidence was given by Mr Grendon and a number of other witnesses; and the inspector made a site visit on the following day. On 5 January 2006 the inspector issued his decision letter. For the reasons which he set out in that letter he concluded that the council's refusal to grant a Certificate of Lawful Use in respect of use of the building as a single dwelling house was well-founded, so he dismissed the appeal.

At paragraphs 1 to 5 of his decision letter the inspector described the site and the building. At paragraph 6 he directed himself that the main considerations which he needed to address were (i) whether as a matter of fact and degree the building was a dwelling house and if so, (ii) whether it had been used as a single dwelling house during the relevant four year period prior to the submission of the LDC application. It is to my mind clear that the inspector took the view that, if the building was incapable of use as a dwelling house, then it could not be said to have been used as one. He reminded himself of the provisions of section 171B(2) of the 1990 Act and noted that he had been referred to a number of cases which shed light on the meaning of a dwelling house in that context. He referred in particular to the facts in Gravesham Borough Council v Secretary of State for the Environment & Anr [1982] 47 P & CR 142 and to Backer v Secretary of State & Anr [1982] 47 P & CR 149. He observed that the fact that a building was being lived in was not necessarily decisive in determining whether it was a dwelling house. He reminded himself (at paragraph 9 of the letter) of paragraph 2.81 of Circular 10/97 (Enforcing Planning Control) and of the observation there that people may adapt or use unlikely or unusual buildings or structures as their home. He observed that the courts had held that although there was no definition of what was a dwelling house:

“It is possible for the reasonable person to identify one when he sees it.”

He went on (at paragraph 11) to direct himself that the question whether the building was a single dwelling house was to be considered by reference both to its use and to its physical attributes. At paragraphs 12 and 13 of the decision letter the inspector noted:

“12. Council officers first inspected the interior of the building in 2002, and it is accepted that the appellant has lived there permanently since that time. The building therefore contains the basic facilities necessary for Mr Grendon's 'hermit-like' existence. He draws water from a spring on the edge of the common for washing and drinking and he digs hole in the wood for toilet purposes.

13. I regard the lack of running water and a toilet as serious shortcomings in terms of the day to day facilities normally expected in a dwelling house. The small, single-room size of the building also sets it apart from what I would regard as a dwelling house. To this I would add the lack of proper windows. Until recently the south end was open to the elements when the wooden shutters were open and, when they were closed, there would be hardly any natural light inside. The building was not constructed as a house and it does not in my opinion look like a house. Taken together, these factors in my view enable a clear distinction to be drawn between the appeal building and the holiday chalet that was the subject of the Gravesham case.”

At paragraph 15 he concluded:

“As a matter of fact and degree that the appeal building is not a dwelling house.”

The inspector observed (at paragraph 16) that much of the evidence at the inquiry concerned...