R (oao Alison Sellars) v Basingstoke & Deane Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr C M G Ockelton |
| Judgment Date | 21 November 2013 |
| Neutral Citation | [2013] EWHC 3673 (Admin) |
| Date | 21 November 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4574/2012 |
[2013] EWHC 3673 (Admin)
IN THE HIGH COURT OF JUSTICE
IN THE MATTER OF A CLAIM IN JUDICIAL REVIEW
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr C M G Ockelton, Vice President of the Upper Tribunal (Sitting as a Deputy High Court Judge)
Case No: CO/4574/2012
Mr D Kolinsky (instructed by Richard Buxton Solicitors) for the Claimant
Mr A Goodman (instructed by Borough Solicitors) for the Defendant
Approved Judgment
Hearing date: 5 November 2013
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr C M G Ockelton, Vice President of the Upper Tribunal (Sitting as a Deputy High Court Judge)
Mr C M G Ockelton, Vice President of the Upper Tribunal:
Blacklands Farm is at Old Basing in north Hampshire. Part ("the red line area") of one of the fields has been used for some years by the Aldershot Model Club. The members gather there to launch powered model aircraft. The red line area, about 100 square metres in total, is adjacent to a lane and is delineated by a fence, but part of the fence is from time to time lowered so that it does not interfere with the flight paths of the model aeroplanes. The aeroplanes themselves fly over an area that is larger than the red line area. Alison Sellars (the Claimant) is a neighbouring land owner, who says that she is disturbed by the model aircraft, particularly when she is in her garden.
Across the lane from the red line area, there are some huts, some of which appear to be in use for various purposes by the Aldershot Model Club. There is also an area where members park their cars. A nearby part of the farm, perhaps within the original boundary of the field now containing the red line area is used for microlite aircraft (which are not model aircraft). It appears that gliders too have at various times flown from the farm. But, so far as I know, the rest of the farm is used for various agricultural purposes.
The Aldershot Model Club was formed in 1974. It is represented in these proceedings by Peter Carter ("the Interested Party"). His evidence is that the Club has used the red line area on a daily basis (weather permitting) since then. His position is that long use of the red line area for this purpose has engendered immunity from enforcement under the Town & Country Planning Act 1990, because section 171B(3) of that Act provides that, in relation to an activity of this nature,
"No enforcement action may be taken after the end of the period of ten years beginning with the date of the breach."
He therefore applied to the Local Planning Authority, Basingstoke and Deane Borough Council ("the Defendant") for a certificate of lawful existing use of the red line area which would, if granted, have the effect of conclusively presuming the lawfulness of the use of the land specified in the certificate. The application was made under section 191 of the Act, which, so far as relevant, reads as follows:
" 191 certificate of lawfulness of existing use or development
(1) If any person wishes to ascertain whether —
(a) any existing use of building or other land is lawful;
(b) any operations which have been carried out in, on, over or under land are lawful; or
(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.
(2) For the purposes of this Act uses and operations are lawful at any time if —
(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired for any other reason); and
(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force.
…
(4) If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application.
(5) A certificate under this section shall —
(a) specify the land to which it relates;
(b) describe the use, operations or other matter in question (in the case of any use falling within one of the classes specified in an order under section 55(2)(f), identifying it by reference to that class);
(c) give the reasons for determining the use, operations or other matter to be lawful; and
(d) specify the date of the application for the certificate.
(6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed.
(7) A certificate under this section in respect of any use shall also have effect, for the purposes of the following enactments, as if it were a grant of planning permission —
(a) section 3(3) of the Caravan Sites and control of Development Act 1960;
(b) section 5(2) of the Control of Pollution Act 1974; and
(c) section 36(2)(a) of the Environmental Protection Act 1990. "
The application was made on 4 October 2011. It was specifically confined to the red line area, and was made on the basis that the Interested Party was in a position to establish the continuous use of that area by the Aldershot Model Club for meetings, and launching, controlling and landing model aeroplanes, for (at least) the preceding ten years. The Defendant publicised the application and received representations in relation to it. At a number of meetings it received evidence, considered the reports and advice of its Officers, and received and considered submissions by or on behalf of the Interested Party and those opposing the grant of the certificate, including counsel instructed by the Claimant.
The certificate was granted. It is dated 3 February 2012. It is specifically limited to the red line area, and the use specified is as follows:
"Flying a maximum of five powered model aircraft at any one time between the hours of 10am until dusk Monday — Saturday and 10am — 7pm or dusk (whichever is the earlier) on Sundays and Bank Holidays"
The reason for granting the certificate is expressed as follows:
"The Applicant's evidence is sufficiently precise and unambiguous."
The present claim was issued by the Claimant, acting in person, on 1 May 2012. The principal grounds were as follows:
"5. The Local Authority has wrongly concluded that the use to which the land in question has been put has been continuous for a period of ten years up to and including the date of the Application upon which this decision is based. In doing so, it failed to take account of material periods when the land was not so used, including a period when there was a foot and mouth outbreak
6. The Local Authority has also clearly failed to take cognisance of the fact that the use to which the land has been put, namely for the flying model aircraft, has materially altered and varied over time. This is evidenced by virtue of the fact, by way of example only, that there has been a substantial increase in the volume of flying, and therefore noise and interference, which has occurred of more recent times. This is therefore a substantially different situation than was the case formerly. The Local Authority has patently failed to apply principles of natural justice in implementing its own guidelines and failing to consider whether there has been a material change in the use of the land in the course of the relevant period of ten years.
7. Further, the Local Authority, in reaching its decision regarding the grant of a certificate of Lawfulness has wrongly applied the law in relation to the definition of "Planning Unit." It has failed to recognise and/or take into account properly or at all the fact that the use of the land for model aircraft in reality, and without any real doubt, extends beyond the red line of the Application site. The site is just part of the land under common ownership. In [treating] the application as appertaining to the red line only, the Local Authority has failed to apply principles of basic law for which purpose reference is made to the case of: Burdle v Secretary of State (1972) 1 W.L.R. 1207. The site identified in the Application and the actual Planning unit are not the same and in these circumstances the Planning Authority has wrongly applied the Law.
8. It is clear that the Local Authority has failed to take into account the fact that the use of model aircraft currently extends beyond the Red Line, being the site identified in the Application. It has also failed to take into account material changes of use, including uses additional to the existing one, as is the case in respect of this land.
9. The Local Authority has failed to apply the law in respect of the onus of proof which at all times remained the duty of the Applicant to discharge which it failed to do in so far as it was the Applicant's duty to establish that the use of the land was at all times lawful."
The Defendant's acknowledgement of service took issue (amongst other things) on the grounds of delay. The application for permission came before David Holgate QC, sitting as a Deputy Judge of this Court on the papers....
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Table of Cases
...North East Somerset Council [2012] EWHC 2161 (Admin), [2013] Env LR 8, [2012] ACD 124 81, 82 R (Sellars) v Basingstoke and Deane BC [2013] EWHC 3673 (Admin), [2014] JPL 643, [2013] 49 EG 76 (CS) 86 R (Siraj) v Kirklees MBC [2010] EWCA Civ 1286, [2011] JPL 571 293–294 R (Skelmersdale Ltd Par......
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Development Control
...appropriate area to consider in order to decide whether land has an established use; see also R (Sellars) v Basingstoke and Deane BC [2013] EWHC 3673 (Admin), where the identification of the relevant planning unit was considered to be a material consideration on an application for a certifi......