R Moore v Secretary of State for Communities and Local Governmnet
| Jurisdiction | England & Wales |
| Judge | DEPUTY JUDGE PATTERSON |
| Judgment Date | 27 March 2012 |
| Neutral Citation | [2012] EWHC 1092 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8793/2011 |
| Date | 27 March 2012 |
[2012] EWHC 1092 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Frances Patterson QC
(Sitting as a Deputy High Court Judge)
CO/8793/2011
MR A ALESBURY (Treasury Solicitors) appeared on behalf of the Claimant
MR G LEWIS (instructed by Gotelees) appeared on behalf of the Defendant
This is an appeal under Section 289 of the Town and Country Planning Act 1990, against a decision of an inspector of the Secretary of State in a decision letter dated 15 August 2011, to uphold a planning enforcement notice issued by Suffolk Coastal District Council on 22 November 2010 on land at St Audrey's House, St Audrey's Park Road, Melton, Woodbridge.
The breach of planning control that led to the enforcement notice was a change of use of the premises without planning permission, from its use as a dwellinghouse to use as commercial leisure accommodation which does not fall within class C3 (a) to (c) which constitutes a sui generis use. The enforcement notice required the use to cease within six months.
On 23 December 2010, the appellant appealed against the enforcement notice to the planning inspectorate on grounds under Section 174(2)(a), (b), (c) and (f)of the Town and Country Planning Act 1909. The appeal proceeded by way of written representations. The decision letter dismissed the appeal on all grounds, upheld the enforcement notice, and dismissed the deemed application for planning permission. Permission to appeal was granted by Mr Justice Singh on 1 December 2011 after an oral hearing.
Before me two main grounds of appeal have been pursued. No appeal is made against the inspector's finding under ground (a), that planning permission ought not to be granted because of the serious harm to living conditions for occupants in nearby dwellings, in terms of noise and general disturbance, which amounted to a breach of local planning policy AP39 and policy DM23 of the interim core strategy. I set out the two main grounds of appeal below.
Background
The background is substantially set out in the local authority's reasons for issuing the enforcement notice which are as follows:
"Reasons for issuing this notice:
"1. St Audry's House is a substantial three storey grade II listed building. It is the central part of a larger building, part of the former hospital complex which, in 1997, obtained planning permission for conversion and re-development to provide 200 dwellings and business, commercial, sports and social uses. St Audry's House was approved as a nine bed-roomed dwelling (as an approved amendment to one four bed-roomed dwelling and one five bedroomed dwelling). It is a mid-terrace property occupying a very prominent location, and is served by a shared access drive. The buildings either side of St Audry's House have been converted to private dwellings.
"2. In May 2008 the property started to be offered for hire on a self-catering basis. It is offered on alternative terms: for seven nights from Friday to Friday; four nights from Monday to Friday or three nights from Friday to Monday. Accommodation is offered over three floors with kitchen, dining room and playroom on the ground floor and bedrooms on upper floors with appropriate facilities and amenities. It can sleep 18 to 20 people.
"3. Following the commencement of the current use, the council has received numerous complaints from local residents. In the main, these relate to noise disturbance and parking.
"4. Due to the size of St Audry's House, it is frequently let for celebrations such as reunions, birthday parties, hen parties, et cetera. Such celebrations often continue until the early hours of the morning and may occur on a Friday night, Saturday night and Sunday night. It is considered that if not brought to an end or adequately controlled, this use will continue. The use of the front and rear outside spaces belonging to St Audry's house by large groups of people celebrating late into the night disrupts the neighbouring residents. The noise affects their sleep, prevents them from being able to enjoy their own gardens and homes and deters them from keeping their windows open. Noise from the interior of the building, especially from the ground floor games-room, can be heard in the adjoining properties. In addition to this, large numbers of cars arrive at St Audry's house. There have been reports of up to 19 cars. Even though St Audry's House is a substantial dwelling, normal family use of the property would not generate such a large number of vehicles on such a regular basis, and the house and surrounding estate is not equipped to accommodate these additional vehicles. This results in car parking which blocks access to other residents' property. This and the additional noise generated by these additional vehicular movements also impacts on the residential amenity of local residents.
"5. The current use of the property is considered to be a material change of use due to the number of people involved, the fact that the premises are hired for short periods, the occupiers generally do not live as a 'single household' as defined by Section 258 of the Housing Act 2004 and, as specified above, the use differs from a normal family use.
"6. The council considers that the issue of an enforcement notice requiring the cessation of the current use of the building is the only action which can satisfactorily remedy the breach of planning control. The council does not consider that planning permission should be given, because planning conditions could not overcome the harm caused by the use."
The decision letter
The material parts of the decision letter in relation to the grounds which have been argued before me are in relation to ground one, paragraphs 4 to 8.
"The appeal on ground (b):
"4. This ground is that the alleged breach has not occurred as a matter of fact. It is argued that the alleged breach is misconceived and practically unintelligible, and cannot be regarded as describing any recognised land use for planning purposes. As such, the unauthorised material change of use cannot be said to have occurred.
"5. The appeal property is let out for self-catering holiday purposes by the appellant's company - Prestige Holiday Lettings, and has been so since 2008. Answers to questions in the planning contravention notice (PCN) confirm it is being used for short term and corporate lets, and extracts from the appellant's website show prices and availability of accommodation. To my mind this provides ample evidence to support the contention that the property is being commercially let.
"6. I accept that the description 'leisure accommodation' might encompass a wide range of different forms of occupation of the property, some of which may constitute a material change of use, and others not. However, I consider holiday accommodation is one such purpose, since holidays are clearly leisure time.
"7. I also accept that the allegation might be framed in a number of ways - and it is quite reasonably suggested for the appellant that it might be described as an use as a 'holiday dwelling'. However, the formulation used is clear, it covers the particular use to which the property is put, and it is obviously understood by the appellant whose business it is.
"8. I do not find the formulation used in the notice either misconceived or unappealable. The alleged breach has occurred as a matter of fact, and the appeal on ground (b) therefore fails."
In relation to ground 2, paragraphs 10 to 22 say:
"The appeal on ground (c):
"9. It is argued that there has not been a breach of planning control since the property benefits from planning permission as a dwelling, but it is not limited to use within CC1 of the UCO. The use for holiday letting started in 2009 and is considered to fall within, and not be materially different in character from the lawful use as a dwellinghouse.
"10.There is no dispute that the property falls within the particular kind of building that should be described as a 'dwellinghouse' - that is, following the test set out in the case of Gravesham - it ordinarily affords the facilities required for day to day domestic existence. Furthermore, there is no dispute that from its first occupation in 1999 until about 2007, the house was used as a dwellinghouse occupied by people living together as a family - that is parents and children. Such use falls squarely within the definition of use class C3(a) defined as use as a dwellinghouse by the single person or by people regarded as forming a single household. I am also aware that there are covenants on the various properties in the Clubhouse restricting them to use as private dwellinghouses. While private covenants have no force in planning terms, they serve to indicate the use to which the dwellings are put.
"11.Much is made concerning the Court of Appeal case of Moore. However, that case concerned whether the conversion of parts of an outbuilding to a country house into 10 self contained units of residential accommodation constituted a change of use to 10 single dwellinghouses within Section 171B(2) of the Act, and therefore came within the four year time limit for enforcement action, or whether they might be considered as a single unit of holiday accommodation coming under Section 171B(3) and the 10 year time limit. There was no distinction sought between the uses to which a dwellinghouse might be put. I consider that case is of limited relevance here.
"12.The appellant argues that the...
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Sheila Moore v Secretary of State for Communities and Local Government and Another
...to dismiss the appeal on ground (a). Factual background 6 The factual background is set out in some detail in the judgment below: [2012] EWHC 1092 (Admin). St Audry's at Melton was an extensive hospital complex. The hospital closed and outline planning permission was granted for part conver......