R Matilda Holdings Ltd v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 16 August 2016 |
| Neutral Citation | [2016] EWHC 2725 (Admin) |
| Date | 16 August 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3736/2016 |
[2016] EWHC 2725 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE PLANNING COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Holgate
CO/3736/2016
Mr Martin Edwards (instructed by LSR Legal) appeared on behalf of the Claimant
Mr Richard Turney (instructed by the Government Legal Department) appeared on behalf of the Defendant
On 3 August 2015, Winchester City Council issued an enforcement notice under the Town and Country Planning Act 1990 in respect of land known as Inhams Field, Inhams Farm, Inhams Lane, Denmead, alleging a breach of planning control by the making of a material change of use of the land from agriculture to use for siting caravans for residential purposes. The Applicant, Matilda Holdings Limited, appealed against that enforcement notice to the Secretary of State, and a public inquiry was held over three days between 19 and 21 April 2016. The Inspector issued a decision letter on 28 June 2016.
Three grounds of appeal were raised before the Inspector. Under ground (d) it was argued that no enforcement action could be taken because the use enforced against represented a breach of planning control which had begun more than 10 years before the issue of the enforcement notice, had continued since then and was thus lawful. Between paragraphs 5 and 25 of the decision letter, the Inspector considered the ground (d) appeal and dismissed it. In paragraphs 5 to 19 he reviewed the evidence of the use of the site. He concluded that as a minimum a permanent mixed use of the appeal site for the stationing of three touring caravans for residential use and agricultural use had existed for more than 10 years. Indeed he considered the use to have begun in 2001.
Then in paragraphs 20 to 25 in the second part of his decision on the ground (d) appeal, he decided that the legality which would otherwise be conferred on that use by the combination of section 171B(3) and 191(2) did not apply in this case because the breach had been deliberately concealed from the local planning authority in 2006 (ie within the 10-year period), applying the decision of the Supreme Court in Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] 2 AC 304.
In paragraphs 26 to 37 of his decision, the Inspector then dismissed the ground (a) appeal that planning permission should be granted for the use enforced against. He upheld the enforcement notice subject to a variation in the time for compliance. Save to that limited extent, the appeal was dismissed.
Matilda Holdings Limited ("the company") now seeks permission to appeal to the High Court against the Inspector's decision under section 289 of the 1990 Act. The proposed challenge relates entirely to that part of the decision which applied the Welwyn principle. The issue for the court today is whether all or any of the grounds proposed cross the threshold of arguability.
The argument centres on information which undoubtedly on the material before the Inspector was communicated to Winchester City Council by Greta Bendall. She was the owner of the enforcement notice appeal site until the 1990s. The company is represented by an agent, Ms Karen Packer. At one stage the father of Ms Packer became the owner and then subsequently the company acquired ownership of the land. Ms Bendall died in 2012.
The Inspector recorded in paragraph 9 of his decision that subsequent to the transfer of her ownership to Ms Packer, Ms Bendall had remained the manager of the land on behalf of the owners almost up until her death. There is no challenge to the accuracy of that part of the decision letter. Indeed, it is consistent with a statutory declaration by Ms Karen Bath which was relied upon by the Applicant at the public inquiry, and to which I have been referred this morning. Ms Bath is the occupier of a caravan on the site and in turn has herself become the manager of the site.
The position at the inquiry has been explained to the court this morning in elaboration of the particulars of challenge. As is common at the opening of a planning inquiry, the Inspector identified what he then considered to be issues for him to determine upon his reading of the appeal papers. In relation to the ground (d) appeal, it is accepted that he unequivocally stated that there were two issues: first, whether the alleged use had been continuous for a 10-year period and therefore had potentially become lawful; and secondly, whether there had been deliberate concealment of the use. There can be no doubt that that second issue was a direct reference to the Welwyn principle. The Applicant had the advantage of being represented at the inquiry by counsel well experienced in planning law and who plainly grasped the significance of the Welwyn principle so far as the ground (d) appeal was concerned.
The court has also been told that, probably on the first morning of the inquiry, the Inspector also asked to see a document or documents which had been referred to in the City Council's written representations responding to the grounds of appeal under ground (d), which in turn relied upon an officer's report on an application for a section 192 certificate. This document had referred to the upshot of a site visit conducted in 2006. I have been told that this material was provided to the Inspector by the local authority during the first day of the inquiry.
It is said on behalf of the Applicant that the Inspector asked no specific questions during the inquiry of any witness about the content of these documents or any inferences which might be drawn therefrom. But it is apparent from the closing submissions of both the City Council and the Applicant that the Inspector had seen at the inquiry the direct link between the material he had asked the City Council to provide and the application of the Welwyn principle. So it cannot be said that this point was not fairly and squarely on the table so far as the parties were concerned.
The material comprises really two sets of documents. The first is a file note prepared by an enforcement officer relating to a visit she made to the land on 14 November 2006. The second issue with which she had been concerned was the alleged use of a field by travellers. It is plain that she was told by Ms Bendall that the field in fact was a certificated caravan site used by Caravan Club members. That was a reference to permitted development rights under what is now part 5 of schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015. The planning officer was led to understand that no breach of planning control had taken place because of those permitted development rights. The note concludes with the words "close case". The officer then took the trouble to write a letter to Ms Bendall on 15 November 2006, stating:
"I am pleased to write to appraise you of the outcome of my investigation […] I am also able to confirm that I was asked to investigate another issue relating to the caravan site in the field adjacent to your property. As discussed, the site is clearly a certified caravan site and does not constitute a breach of planning control. I have therefore concluded my investigation. Those matters will not be pursued further."
The photographs which were taken by the officer at the time include a sign which said "The Camping and Caravanning Club" and also "certificated site". Paragraph 9 of the Inspector's decision letter refers to evidence from local residents that a sign to the effect that the appeal site was certificated was left in place at the entrance of the field, which I take to be a reference to the same signs that appear in the photograph.
The court has been shown the closing submissions which were made on behalf of both the City Council and the Applicant on this point. The City Council's primary argument was that there had not been continuity of use so as to justify reliance upon the 10-year period. But they also said that if the Inspector was against them on that point, then the information regarding the certification of the site could be considered on the basis of a deliberate concealment of the breach.
So far as the Applicant was concerned, it argued its position really as a matter of fundamental principle, as it saw it. It sought to argue that the law on positive deception or deliberate concealment could not apply on the facts of the case simply because it was not an "egregious case". It involved a use that was open and in plain sight. It was the antithesis of concealed or hidden development. It was also submitted that the point should have been put to witnesses for the appellant for them to deal with the matter in cross-examination, citing the judgment of the Court of Appeal in Secretary of State for Communities and Local Government v Hopkins Developments Limited [2014] EWCA Civ 470. Finally, a good deal of emphasis was placed upon evidence from a Mr Deane, from which it appeared that he was aware from Greta Bendall that the certification of the site had been cancelled, so that he and others known to him had not been deceived.
In paragraph 20 of his decision letter the Inspector rejected the suggestion that the Welwyn principle could not apply simply because the use had not been physically concealed and the caravans could be seen from the road. In my...
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