Richard O'Flynn v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 17 November 2016 |
| Neutral Citation | [2016] EWHC 2894 (Admin) |
| Date | 17 November 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1041/2016 |
[2016] EWHC 2894 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Lang DBE
Case No: CO/1041/2016
The Claimant appeared in person
Clare Parry (instructed by the Government Legal Department) for the First Defendant
The Second Defendant did not attend and was not represented
Hearing date: 2 November 2016
Approved Judgment
The Claimant applies under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990") to quash the decision of the First Defendant, made on his behalf by an Inspector on 19 January 2016, in which he dismissed the Claimant's appeal from the Second Defendant's refusal to grant him a certificate of lawful existing use or development ("CLEUD"), pursuant to section 191 TCPA 1990.
The Claimant is the owner of a property known as Glenthorne, Five Ways Road, Hatton, Warwickshire CV35 7HZ (hereinafter "the Site"), comprising a dwelling-house and 3.5 acres of land.
There was a smallholding on the Site for many years, though it had ceased to be used for this purpose in the late 1970's. The Claimant purchased the Site in 1996. At that time, according to the Claimant, it had nothing which could be described as a garden. The land was overgrown. The southern part of the Site, to the rear of the dwelling-house, was semi-derelict and included the concrete bases of old agricultural buildings and piles of bricks. The northern part of the Site was paddock grass, which was being cut by a farmer, at the request of the previous owners.
Over the years since he purchased the Site, the Claimant has removed the remnants of the smallholding and cultivated the land. He has planted trees, shrubs, hedges and flowers; grown fruit and vegetables; constructed greenhouses and composting bins; and laid, levelled and maintained extensive lawns. He has also installed a well, a pond, fencing, hardstanding, a new drive, and garden seating. His case was that the entirety of the land had become one extensive garden, which was in regular use for normal residential activities by the Claimant and his family, including their dogs, and their visitors.
On 21 March 2013, the Claimant applied to the Second Defendant for a lawful development certificate for the use of land as incidental to the enjoyment of a dwelling house. The Second Defendant refused the application on 30 May 2013.
The Claimant appealed and the appeal was decided by way of written representations, on 23 December 2013 ("the 2013 Decision"). An Inspector (hereinafter "the first Inspector") allowed the appeal in respect of the southern part of the Site, but not the northern part which lay to the north of a privet hedge running across the Site. The southern part of the Site contained the dwelling house, driveway, garages and outbuildings, garden ornamentals, shrubs etc. The first Inspector found that the use of the southern part of the Site for purposes incidental to the enjoyment of the dwelling house was uncontroversial and supported by the evidence. The first Inspector certified that, in respect of the land to the south of the privet hedge, as shown on the attached plan, " [t]he use of the land ….. for purposes incidental to the enjoyment of the dwelling house commenced before 23 March 2013 and has continued.".
However, the first Inspector concluded that the Claimant had failed to demonstrate, on the balance of probability, that the use of the land to the north of the privet hedge for purposes incidental to the enjoyment of the dwelling house commenced prior to the material date.
On 21 January 2014, the Claimant again applied to the Second Defendant for a lawful development certificate for the use of land as incidental to the enjoyment of a dwelling house. The Second Defendant refused the application on 26 March 2014.
The Claimant appealed. The Inspector (Mr Morden) held a 2 day Inquiry and conducted a site visit. In his Decision dated 19 January 2016 ("the 2016 Decision"), he concluded that the Claimant had failed to demonstrate that the northern part of the Site was in use for residential purposes incidental to the use of the dwelling house, and that such use commenced prior to 21 January 2004, and had continued since that date. He considered that the northern part of the Site was different in character and appearance to the southern part of the Site, as it was more like a large landscaped garden, laid to lawn with trees, than a residential garden with flower beds, pot plants etc. He concluded that the family's activities on the northern part of the Site were insufficient to amount to incidental residential use. As the northern part of the Site was not being used for any other purpose, he concluded that it had a "nil use".
The Claimant applied to quash the 2016 Decision and Collins J. granted permission on the papers on 9 May 2016.
LAW
Applications under section 288 TCPA 1990
Under section 288 TCPA 1990, a person aggrieved may apply to quash a decision on the grounds that (a) it is not within the powers of the Act; or (b) any of the relevant requirements have not been complied with and, in consequence, the interests of the applicant have been substantially prejudiced.
The general principles of judicial review are applicable to a challenge under section 288 TCPA 1990. Thus, the Claimant must establish that the Secretary of State misdirected himself in law or acted irrationally or failed to have regard to relevant considerations or that there was some procedural impropriety.
The exercise of planning judgment and the weighing of the various issues are matters for the decision-maker and not for the Court: Seddon Properties v Secretary of State for the Environment (1978) 42 P. & C.R. 26. As Sullivan J. said in Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, at [6]:
"An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision."
An Inspector is required to give adequate reasons for his decision, pursuant to Rule 18 of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000. The standard of reasons required was described by Lord Brown in South Bucks District Council and Anor v Porter (No 2) [2004] 1 W.L.R. 1953, at [36].
An Inspector's decision letter must be read (1) fairly and in good faith, and as a whole; (2) in a straightforward down-to-earth manner, without excessive legalism or criticism; (3) as if by a well informed reader who understands the principal controversial issues in the case: see Lord Bridge in South Lakeland v Secretary of State for the Environment [1992] 2 AC 141, at 148G-H; Sir Thomas Bingham MR in Clarke Homes v Secretary of State for the Environment (1993) 66 P. & C.R. 263, at 271; Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26, at 28; and South Somerset District Council v Secretary of State for the Environment (1993) 66 P. & C.R. 83.
Statutory provisions
Section 191 TCPA 1990 provides:
" 191.—Certificate of lawfulness of existing use or development.
(1) If any person wishes to ascertain whether—
(a) any existing use of buildings 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 or for any other reason); and
(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force.
(3) For the purposes of this Act any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful at any time if—
(a) the time for taking enforcement action in respect of the failure has then expired; and
(b) it does not constitute a contravention of any of the requirements of any enforcement notice or breach of condition notice then in force.
(3A) In determining for the purposes of this section whether the time for taking enforcement action in respect of a matter has expired, that time is to be taken not to have expired if—
(a) the time for applying for an order under section 171BA(1) (a "planning enforcement order") in relation to the matter has not expired,
(b) an application has been made for a planning enforcement order in relation to the matter and the application has neither been decided nor been withdrawn, or
(c) a planning enforcement order has been made in relation to the matter, the order has not been rescinded and the enforcement year for the order (whether or not it has begun) has not expired.
(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...
To continue reading
Request your trial