Secretary of State for Transport, Local Government and The Regions v Waltham Forest London Borough Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Schiemann
Judgment Date15 March 2002
Neutral Citation[2002] EWCA Civ 330
Date15 March 2002
Docket NumberCase No: C/001/2305

[2002] EWCA Civ 330

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION (Administrative Court)

Before

Lord Justice Schiemann

Lord Justice Tuckey and

Lord Justice Jonathan Parker

Case No: C/001/2305

Secretary of State for Transport, Local Government and the Regions
Appellant
and
Waltham Forest London Borough Council
Respondent

Philip SALES and Rupert WARREN (instructed by Treasury Solicitor for the Appellant)

RICHARD LANGHAM (instructed by Legal Services L.B. Waltham Forest for the Respondent)

Lord Justice Schiemann

This is the Judgment of the Court.

1

Before the Court is an appeal by the Secretary of State for Transport Local Governmentandthe Regions against a decision of Sullivan J. in a planning matter. The case concerns an application under section 192 of the TownandCountry Planning Act 1992 for a certificate of lawfulness of proposed use or development. That section provides as follows:—

(1) If any person wishes to ascertain whether—

(a) any proposed use of buildings …

would be lawful, he may make an application for the purpose to the local planning authority specifying the l and anddescribing the use … in question.

(2) If, on an application under this section, the Local Planning Authority are provided with information satisfying them that the use … described in the application would be lawful if instituted or begun at the time of the application, they shall issue a certificate to that effect;andin any other case they shall refuse the application.

(3) A certificate under this section shall—

(a) specify the l andto which it relates;

(b) describe the use … in question …

(c) give the reasons for determining the use … to be lawful;and

(d) specify the date of the application for the certificate.

(4) The lawfulness of any use … for which a certificate is in force under this section shall be conclusively presumed …

2

The application with which we are concerned did not describe the existing or last use of the premises but it is common ground that the present or last use of the premises was as a dwelling house. How many people lived there does not appear.

3

The application specified the proposed use. It was for 6 persons recovering from mental ill health who will be living together as a single household with an element of care. The existing use is described as "Use as a C3 use". That is a reference to the TownandCountry Planning (Use Classes Order) 1987 which defines that class as:

Use as a single dwelling house …

(a) by a single person living together as a family, or

(b) by not more than six residents living together as a single household (including a household where care is provided for residents).

4

In answer to the question 'State why you consider that a Lawful Development Certificate should be granted for this proposal' the reply was given 'As the building will not be occupied by more than six personsandas the occupants will be living as a single household sharing common facilities it is considered that the use of 6 persons notwithst and ing an element of care falls within class C3 …'

5

Further details of the proposed use were given in due course. The Local Planning Authority certified that the proposed use would not be lawful, giving the following reason: 'The proposed use is for occupancy by 6 persons requiring careanda minimum of one care provider at the premises at any one time …'

6

Section 195 of the Act provides that:

(1) Where an application is made to a Local Planning Authority for a certificate under section … 192and

(a) the application is refused …

the applicant may by notice appeal to the Secretary of State.

(2) On any such appeal, if an in so far as the Secretary of State is satisfied –

(a) … that the authority's refusal is not well founded

he shall grant the appellant a certificate under section … 192.

(3) If … the Secretary of State is satisfied that the authority's refusal is … not well founded he shall dismiss the appeal.

7

So Mr. Tully, the applicant for the certificate, appealed to the Secretary of State who appointed an Inspector to decide the appeal. That Inspector decided that Mr Tully's contention that the existingandproposed use both fell within the same Use Class was ill-founded – essentially because the presence of a carer brought the total of residents to seven. That conclusion is not challenged before us. However the Inspector went on to say –

9. … the only remaining issue to decide is whether or not, as a matter of factanddegree, the characterandnature of the proposed use would be materially different from the present or last use as a dwellinghouse. Any normal dwellinghouse use by a family or other single household, especially where there may be children or an extended family, might well include an element of care of children or the elderly.

10. … I have no reason to suppose that the building, as extended, would not retain the physical appearance of a normal dwellinghouse in a residential area. The information provided with the application suggests that residents would live on a communal basis. … This seems to me to be not unlike the living arrangements of many normal families where, generally, the parents (though in this case the staff acting in a kind of loco parentis) would provide the meals, but encouraging the children (in this case the residents in care) to participate in thisandother domestic chores. Residents would share the use of communal facilities … I do not consider that the number of occupants, including staff, is so great as to cause any more vehicular or other general activity than might be generated by any large family or group of people, as might live together as a single household in a large dwellinghouse like this. Nor do I consider it likely that the level of visitors to the premisesandthe effect generally on the surrounding area would vary significantly from that arising from the socialanddomestic activity of any normal dwellinghouse of this size.

11. … the purpose of the proposal is to enable people recovering from mental ill health to live in as normal a residential household environment as possible, as part of the community, rather than in an institution. In all the circumstances, I take the view that, as a matter of factanddegree, the characterandnature of the proposed use would not differ materially from that of...

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3 cases
  • Geoffrey Richard Noquet and Another v Secretary of State for Communities and Local Government and Another
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 9 February 2016
    ...the authorities from the present case. The first authority was that of Secretary of State for Transport v Waltham Forest LBC [2002] EWCA Civ 330. That case was concerned with an application under section 192 of the 1990 Act for a certificate of lawfulness of proposed use or development. Wha......
  • R (on the application of Giordano Ltd) v London Borough of Camden Council
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 12 September 2019
    ...There was support for the council's interpretation in the judgment of Schiemann L.J. in Secretary of State for Transport, Local Government and the Regions v Waltham Forest London Borough Council [2002] EWCA Civ 330, [2002] 2 P.L.R. 83 (at paragraph 18), holding that, as Lang J. put it, “th......
  • R Giordano Ltd v London Borough of Camden
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 13 December 2018
    ...relied upon the judgment of Schiemann LJ, in Secretary of State for Transport, Local Government and the Regions v Waltham Forest LBC [2002] EWCA Civ 330, at [17] and [18], where he held that the word “lawful” in section 192 of the Town and Country Planning Act 1990 meant “lawful” in the con......

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