Roy Coles and Another v Lichfield District Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing |
| Judgment Date | 04 November 2016 |
| Neutral Citation | [2016] EWHC 3059 (Admin) |
| Docket Number | CO/2736/2016 |
| Date | 04 November 2016 |
| Court | Queen's Bench Division (Administrative Court) |
[2016] EWHC 3059 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Elisabeth Laing
CO/2736/2016
Mr Nicholas Ostrowski (instructed on Direct Access) appeared on behalf of the Appellants
Mr Richard Kimblin QC (instructed by Ansons Solicitors of Lichfield) appeared on behalf of the Respondents
This is my decision on an appeal by way of case stated against the decision of District Judge McGarva ("the district judge"), sitting at the Cannock Magistrates' Court. He delivered his judgment on 18 March and stated the case on 17 May 2016.
The questions he stated for the opinion of the court were:
i. "(1) Were the essential ingredients of an application for a planning enforcement order under Section 171BA of the Town & Country Planning Act 1990 made out on the evidence in this case; and (2) was I right to conclude that Mr and Mrs Coles's actions amounted to the deliberate concealment to any extent of breach of a planning control."
On the appeal the appellants were represented by Mr Ostrowski and the respondent local planning authority (" LPA") by Mr Kimblin QC. I grateful to both counsel for their written and oral submissions.
The appeal is against a planning enforcement order ("PEO") made by the district judge in relation Squirrel Cottage ("the Cottage").
The Evidence
The district judge heard evidence from the appellants, from Patricia Appleby, and from Ronald Coles on behalf of the appellants, and from Mrs Hibbs and Mr Wynn from the LPA. He found that Mrs Hibbs was an honest witness. He found that Mrs Coles was a guarded witness and that some of her answers did not match the correspondence. Mr Coles's evidence was also in part contradicted by the correspondence. Patricia Appleby came across to the district judge as an honest witness. She felt greatly indebted to the appellants for rescuing her at a difficult time in her life. Andrew Coles had given brief evidence about threats he had received and about the fitting of security shutters to the cottage. The LPA did not challenge that evidence.
The district judge took into account written statements (see paragraph 3 of the case stated). He was also provided with two bundles of documents. Those included many letters and photographs and plans taken or made on various dates in the history.
The Facts
The district judge did not purport to set out all the evidence he had heard (see paragraph 6 of his careful judgment) but he did comment on aspects of some of it in paragraphs 7 to 12 of his judgment. I have just summarised those comments. He made his findings of fact in paragraphs 14 to 24 of his judgment. He summarised those findings in paragraph 4 of the case stated.
The site of the Cottage is relatively remote. It is between the West Coast mainline and the Coventry Canal. It is approached by a long track and is not readily visible save from the railway. The site has a number of buildings, some of which have been erected at different times without planning permission. It is a controversial site and the LPA have received a number of complaints alleging planning infringements.
The appellants have a significantly better than average knowledge of the planning system and of property in general. The district judge explained why he had made that finding in paragraph 16 of his judgment. The appellants had previously applied for certificates of lawfulness for buildings on the site. They were fully aware of the need to apply for planning permission and of the four-year time limit for enforcement.
The LPA received a complaint about what is likely to have been a construction of the Cottage in 2008. A letter in May 2008 said that Mr Coles was "in the process of erecting a timber building in his lake area". A letter of July 2008 referred to "yet another building" and to the doubled-glazed units going in. A letter to the LPA in August 2009 included a plan which appeared to show a property roughly in the position of the Cottage. The Cottage was described in the letter as "overlooking a wonderful pool". That letter also said that the appellants had "told everyone that it does not matter, and you can build what you want where you want and it does not matter. The council is that far-stretched it is yours in ten years anyway".
The response to all those complaints was that the LPA was not able to uncover evidence of unlawful development. The district judge found it probable that the appellants did tell neighbours what that letter recorded. He was "certain that had the applicants been aware of the breach, they would have taken enforcement action straightaway given the way they dealt with other complaints" (see paragraph 16 of the judgment). In paragraph 18 of the judgment he made findings about site visits by the LPA; there were several in 2008 and 2009. LPA officers saw the completed structure. When it was seen it was covered at the front with green shutters. It had no openings to the back or sides. The area around it was landscaped. There was a satellite dish lying on the ground and a flue.
Mrs Hibbs's evidence was that she thought it was a shed. She certainly did not identify it as residential property. A note was made on the planning officer's worksheet on 28 April 2010. It said:
i. "Chalet/probably over four years. Debate whether it is included as part of CLE."
The author of that entry, Mr Law, did not give evidence before the district judge so there was no evidence from him about whether that entry referred to the Cottage. Mrs Hibbs thought that it referred to other buildings but it was hard for her to say. The district judge said that he —
i. "….. found it impossible to determine that this entry relates to what would become [the Cottage]. There were many buildings on the site, some of which were built without planning permission. The council had to deal with a number of complaints in 2008 to 2009 as the correspondence clearly showed. There was no way of knowing what property the entry related to."
None of the twelve examples given by the appellants as showing that the LPA knew about the building, with the exception of three photographs, show, the district judge said, that the LPA was ever actually aware of the building. And the photographs of the shuttered building did not demonstrate residential use.
The district judge summarised all of this by concluding that although the LPA was aware of the structure it had not realised that it was the subject of the complaints or that it was constructed as a dwelling or, indeed, that it was being lived in (see paragraph 19 of the district judge's judgment). The district judge found that the appellants did not apply for a specific address for the Cottage. They did not register to vote until after the four-year period had expired. The address was only registered for council tax after the appellants had received advice from their planning consultants. The district judge found that this was because the appellants did not want to draw attention to their occupation of the Cottage. They were far too experienced i property matters not to realise the need to pay council tax on the property.
The appellants gave the LPA the impression that they were still living in a property called The Dairy Annexe. They used that as their address in all their correspondence. The appellants said that it was not a deliberate deception but a reflection of their own view that The Dairy Annexe covered the whole area of the site. The district judge said he had considered this evidence very carefully. He had looked at a number of letters and assessed the credibility of the appellants' evidence on that point. He referred to Mr Coles's letter of 10 May 2010 to the LPA. The appellants were still referring to their property as The Dairy Annexe. Mr Coles explained who owned what land and attached a plan [admittedly a plan sent by the LPA to him]. This showed various properties on the site but not the cottage. He said that he and his wife were living in Thailand, that The Dairy Annexe and the granny flat were let out and that the other cabins were unoccupied. Any post directed to the appellants at The Dairy Annexe was being redirected to their daughter. The LPA had written to the appellants about the erection of a log cabin without permission. The LPA made it clear in their letter that they had not found evidence of that building.
In a response to a planning contravnetion notice, Mr Coles had handwritten a square with a question mark on an attached map roughly in the position of the cottage. This was very ambiguous if it was an acknowledgement of the development, and there was absolutely no explanation of it on the form.
The district judge also referred to a response to a further enforcement notice in September 2012. That referred to Mrs Coles as occupying The Dairy Annexe. It did not say that The Dairy Annexe was rented out to Mrs Appleby.
The district judge rejected the assertion that the appellants thought the site was all one big address (see paragraph 23 of his judgment). That assertion was not credible and was at odds with the correspondence in which Mr Coles had been at pains to say exactly who lived where. The district judge noted Mrs Appleby's evidence about where the mail was sent. The district judge considered the evidence about where site meetings had been held but was not able to make any findings on that issue. In paragraph 24 of his judgment...
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