R (on the application of Flint and another) v South Gloucestershire Council
| Jurisdiction | England & Wales |
| Judge | HH Judge Jarman |
| Judgment Date | 02 September 2016 |
| Neutral Citation | [2016] EWHC 2180 (Admin) |
| Docket Number | Case No: CO/2138/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 September 2016 |
[2016] EWHC 2180 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
The Bristol Civil and Family Justice Centre
2 Redcliff Street, Bristol BS1 6GR
His Honour Judge Jarman QC
Case No: CO/2138/2016
Mr James Corbet Burcher (instructed by Keystone Law) for the claimants
Mr Alexander Greaves instructed by the defendant
The interested parties did not appear
Hearing date: 22 August 2016
Judgment Approved
HH Judge Jarman QC:
The second claimant Mrs Pinker lives with her partner the first claimant Mr Flint at Lady's Wood, Chipping Sodbury and owns adjoining land which comprises woodland (the wood) to the north east and a field (the field) to the south east. From 1984 she ran a shooting school from the wood with her late husband until the latter's death in 2010. She continued to run the school until 2013 when she granted a lease of the land to one ofthe interested parties, Lady's Wood 2013 Ltd (the company) which continues to operate the school. By an application dated 9 March 2015 (the section 191 application) the company applied to the defendant as local planning authority (the authority) for a lawful development certificate under section 191 of the Town and Country Planning Act 1990 (the 1990 Act), as amended, for an existing use, described in the application as "Use of land and buildings as a shooting school." The plan attached to the application included the field as well as the wood.
On 11 March 2016 the authority granted such a certificate for the use of the land and buildings identified on the plan for a shooting school in breach of planning conditions limiting the hours of operation and the number of persons being instructed at any one time. The claimants now seek to challenge that decision on two main grounds: first, that the authority did not adopt the correct legal test to define what land had been used for the school over a continuous period of 10 years and that there was insufficient evidence to justify the decision that such use extended over the field as well as the wood: second; that the certificate should have identified the scale of the breach by reference to the number of persons receiving instruction at any one time and the type of cartridge used.
Planning permission was first granted for a shooting school by the authority's predecessor on 5 May 1982 on a temporary basis until 31 July 1984. The development permitted was described as "Establishment of shooting school within existing game farm" and was expressly in accordance with the submitted application and accompanying plans but subject to the conditions set out. The accompanying plans showed the wood witha significantly smaller defined area of the school roughly in the centre of the wood. The conditions included the restriction of hours of operation to 10am to 4pm Tuesday to Saturday, and the restriction on the maximum number of people receiving shooting instruction at any one time to two, with it being provided that "no shooting parties to be held." The reason given for these conditions was to control the scale of use in the interests of the amenities of the locality.
On 18 July 1984 that permission was made permanent under referenceP84/1725 for the "establishment of shooting school within existing game farm," and reference was made to similar plans to those referred to in the temporary permission. Although there was reference to renewal of temporary consent, no limit was put on the duration of the permission. Similar conditions were imposed in respect of operating hours and the number of people receiving instruction at any time although on this occasion without the prohibition on shooting parties. The following month, permission was granted under reference P84/2220 for the erection of an outbuilding for uses ancillary to the existing game farm and shooting school, with similar conditions in relation to operating hours and numbers of persons receiving instruction at any one time. The third and final relevant permission was granted on 12 September 1985 for the erection of a 37 metre tower in the wood for the launching of clay pigeons.
In February 2015 the company made a planning application for the retrospective permission for the erection of a storage shed and this was passed to a senior planning enforcement officer at the authority, namely James Cooke. He carried out a site visit that month accompanied by a director of the company, the other interested party Ernest Hemmings. He observed that there had been erected in the wood four permanent towers for firing clays, in addition to the one for which planning permission had been granted, and indicated that permission would be needed for these also. Mrs Pinker objected to this application on the grounds of private residential amenity and landscaping, and accordingly Mr Cooke made a second site visit to deal with that objection.
Following that visit an application was made on behalf of the company for planning permission for the retention of the four new towers. A few days later, the section 191 application was made by planning consultants on behalf of the company and comprised a number of documents including a site location plan (the site plan), a sworn statement of Mr Hemmings and seven support letters from members and staff. The site plan was based on the Ordnance Survey Map for 2015 at a scale of 1:2500. The site boundary was shown as a solid red line. It incorporated the central and eastern parts of the wood, the outbuildings, and also the whole of the field. In the north west corner of the latter solid black lines depict the car park and overflow car park. Towards the north east of the field there appeared another set of black lines in the form of a square which depicts an enclosure of trees.
The accompanying statement of Mr Hemmings was sworn before a solicitor and comprised seven lines of typescript, in which he stated that he had been a regular client at the school for over 30 years and confirmed that it had operated "from the entire area" shown on the site plan "continuously and without interruption for at least the past 10 years." The seven statements from members and staff were even shorter and comprised signed pro forma statements with similarly worded confirmation.
On 17 March Mrs Pinker wrote to Mr Cooke saying that she had received a copy of the section 191 application letter and referring to the above planning permissions. She stated that the school had operated "within its' permitted planning ever since, strictly adhering to the restricted working hours… with shooting taking place between the hours of 9.00am to 4.30pm only and using low noise cartridges made especially for the shooting school to control the noise."
By email on the 23 April Mr Cooke notified the company's consultants of those comments and concluded as follows:
"To apply for the whole of the plot as having been operated in breach of the conditions for 10 years-(The only evidence for this so far is that submitted by the neighbour suggesting that it was operational from 9–4.30 Tuesday to Saturday but her evidence does not define the planning unit for this scale of operation. I think you would need to provide much greater evidence to substantiate a consistent breach of the conditions over the ten year period."
That brought forth further sworn statements each dated 14 May 2015 and signed by Mr Hemmings and three employees who had signed letters of support which had been lodged with the section 191 application. These additional statements were each in similar form and repeated what had been said in the original statements but added a paragraph stating that over the same period the school had continuously operated beyond the permitted hours and with groups of more than two people in breach of the conditions on the relevant planning permissions. There then followed a note to the statement maker in square brackets saying that it would be very helpful if further reference to specific bookings photographs or other evidence could be made but none of the signatories added any such reference. One such statement was signed by Peter Rollings, who said that he had been an employee of the school for 20 years.
By letter dated 5 June 2015 Mr Flint wrote to Mr Cooke enclosing extracts of diaries from 2003 to 2013 which showed the hours of business and teaching structure. He stated that corporate days increased over the years with small parties ranging from 6 to 12 people, and on rare occasions up to 30 people. These would be divided into groups of 5 or 6 and within the group only one person would shoot at any one time. During this period one charity event a year would be held with low noise cartridges. He confirmed that on no occasion was a shot fired before 9am or after 4.30pm.
On 19 June 2015 solicitors acting on behalf of Mrs Pinker wrote to Mr Cooke raising a number of points, including an assertion that there had been a significant intensification of the use of the school after the company took over its running, both in terms of the amount of shooting and the area over which shooting took place. Solicitors for the company responded to those points by a long letter dated 2 July 2015, enclosing over 50 pages of further documentary evidence. That included a spreadsheet provided by the suppliers of clay pigeons to the school over the last 10 years which showed that in only one year had the company ordered more clay pigeons than ordered by the Pinkers and the increase had been modest.
In terms of area, a plan was attached illustrating the layout of traps (the layout plan) which showed the four new towers which were the subject of the recent planning application but...
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Table of Cases
...Food and Rural Affairs [2012] EWHC 644 (Admin), [2012] All ER (D) 183 (Jan) 611, 612 R (Flint) v South Gloucestershire Council [2016] EWHC 2180 (Admin), [2016] LLR 818, [2017] JPL 310 331 R (Forge Field Society) v Sevenoaks District Council [2014] EWHC 1895 (Admin), [2015] JPL 22 372, 424, ......
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Lawful Development Certificates
...in a CLEUD was a matter of judgment for the local authority, based on the evidence ( R (Flint) v South Gloucestershire Council [2016] EWHC 2180 (Admin) applied – Flint was a case where it was held that an LPA had been entitled to grant a lawful development certificate under TCPA 1990, s 191......