South Cambridgeshire District Council v Fleet Sother Cooke (aka Paul Sanderson) and Another
| Jurisdiction | England & Wales |
| Judge | Hh Judge Richard Parkes |
| Judgment Date | 04 December 2015 |
| Neutral Citation | [2015] EWHC 3538 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ15X02927 |
| Date | 04 December 2015 |
[2015] EWHC 3538 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Hh Judge Richard Parkes QC (sitting as a Judge of the High Court)
Case No: HQ15X02927
Ms Saira Kabir Sheikh QC (instructed by Sharpe Pritchard LLP) for the Claimant
The Defendants were neither present not represented
Hearing date: 17 November 2015
Hh Judge Richard Parkes QC:
On 17 November 2015 I made the order sought by the claimant, South Cambridgeshire District Council (SCDC), under s187B, Town and Country Planning Act ('TCPA') 1990. These are my reasons for doing so.
THE LAND
The claimant is the statutory local planning authority for South Cambridgeshire, and in particular for land occupied by the first defendant at Hill Trees, Babraham Road, Stapleford, which is green belt land lying just outside the city of Cambridge. There is no doubt that the first defendant has at all material times been the occupier of the land and the person controlling the activities which have taken place there. For instance, he responded to an enforcement notice on one part of the land in 2005; in September 2009 he responded to a planning contravention notice (PCN) served by SCDC, stating that he was responsible for the car sales business which was being conducted on the land; and in April 2013, he responded to a further PCN by stating that the land was under his control and had been sold to him by a Mrs Freda Cook.
The ownership of the land occupied by the first defendant is in fact far from certain. The land to which the application relates is the area marked A, B and C on the plan exhibited to the witness statement of Mr Charles Swain (SCDC Principal Planning Enforcement Officer) of 29 June 2015 at CRS1. It adjoins the main A1307 road from Cambridge to Babraham. Area A has residential use, and is the location of a house, a former pub, which was occupied by Mrs Freda Cook, who is no relation of the first defendant. She seems to have used the land as a whole for a horticultural nursery. She may have been the beneficial owner of at least areas A and B, although her title was not registered. According to Mr Swain, Mrs Cook died intestate on 17 August 201She had moved out of Hill Trees to the first defendant's address at 136 Perne Road, Cambridge in the course of 2012. During her final illness, he sought to arrange to be married to her, but this was not allowed by the hospital because her capacity was in doubt. The present position is that the house and land at areas A and B are subject to a caution against first registration, registered by the first defendant on 19 July 2012, and the Land Registry records him as holding possessory title of the land at area C, registered on 12 March 2013.
It is not known what views the administrators of the estate of Freda Cook, who have been joined as second defendant but have played no part in these proceedings, may have on the true ownership of the Hill Trees land. Such questions are not material to the current application, because, as I have said, it is plain that the first defendant is and has at all material times been in occupation of the Hill Trees land. That is all that matters from the point of view of planning controls.
For the sake of completeness, it should be mentioned that there is a further strip of land, area D, which lies behind areas A and B, which was occupied by the first defendant in 2000 but was later found to belong to the neighbouring golf club. His incursion onto that land was dealt with by the owner, and it is not part of the land to which this application relates.
PERMITTED USE OF THE LAND
The permitted use of area A has at all material times been residential, and that of areas B and C has been agricultural.
ACTUAL USE OF THE LAND
The land no longer comprises three planning units, but rather a single planning unit in mixed residential and commercial use. The commercial use, for which there is no planning permission, appears to involve the storage and sale of motor vehicles.
PLANNING HISTORY
It appears from the evidence of Mr Swain and Mr Anthony Pierce, Interim Development Control Manager of SCDC, that the first defendant has persistently flouted the planning control regime, and that it is as a result of his refusal to abide by planning control that SCDC decided to make the present application.
The history of the first defendant's failures of compliance with planning controls goes back to his occupation in 2000 of area D, the land behind areas A to B. An enforcement notice (E415) was served on the first defendant in relation to that land, because he was using it for the storage of motor vehicles, caravans, mobile homes and the like. He appealed against that enforcement notice to the planning inspector, who dismissed his appeal. It appears that the enforcement notice was eventually complied with, after the golf club recovered possession of the land.
In February 2005, an enforcement notice (E499) and a stop notice were served on the first defendant in relation to the eastern part of the land, area C. That was because there had been a material change of use from agricultural use to the storage of motor vehicles, caravans, containers and other items. The notice required items not connected with agricultural use to be removed. The first defendant appealed against the notice. His appeal was dismissed by the inspector in October 2005. The High Court (Calvert-Smith J) refused him permission to challenge the inspector's decision at an oral hearing on 27 February 2006.
In April 2006 the first defendant made a retrospective application for planning permission for the erection of a Nissen hut and mobile home on area C. Permission was refused in September 2006, and on 29 January 2008 his appeal to the inspector against refusal of planning permission was dismissed.
In May 2007, Mr Swain visited both area C and another property owned by the first defendant, Riverside Stables in Little Abington, to ascertain whether enforcement notice E499, and another notice (E340) served in relation to Riverside Stables, had been complied with. They had not. In the result, the first defendant was prosecuted for his failure to comply. On 11 December 2007, he appeared at Cambridge Crown Court to answer two counts under section 179, TCPA 1990. The first count related to area C, and the second to Riverside Stables. The first defendant pleaded guilty to count 2, but because of difficulties with the quality of the photographic evidence, and in the light of the first defendant's agreement to enter a guilty plea to count 2, SCDC offered no evidence on count 1, which accordingly was dismissed. According to the witness statement of Mr Gary Duthie, a senior lawyer with SCDC, the decision to offer no evidence on count 1 was in consideration of the guilty plea to count 2. Notwithstanding that he had entered a guilty plea on count 2, the first defendant appealed in person against his conviction to the Court of Appeal, a year out of time, on the basis that because of his commitments to his elderly mother he had not been able to attend for the two or three days that a full trial would have taken, and that his application to vacate the trial date had been refused. Accordingly, he argued that he had been denied justice. That account was not supported by the evidence of his solicitors, which showed (privilege having been waived) that his guilty plea had followed advice outside court and discussions between his lawyers and prosecution counsel, and that no application for an adjournment of the hearing had in fact been made. Unsurprisingly, his application for leave to appeal out of time was refused. It is worth noting that the conviction on count 2 had followed service of an earlier enforcement notice in relation to Riverside Stables, with which he had not complied either, resulting in an earlier prosecution, a guilty plea, and on that occasion also an application for leave to appeal, which then also had been dismissed.
Notwithstanding the first defendant's conviction in respect of Riverside Stables, he took no steps to comply with enforcement notice E499, which applied to area C. The Council resolved to take direct action, and unauthorised items were removed by bailiffs on 7 May 2008.
On 26 August 2009 the council issued a planning contravention notice in respect of the land, because of an apparent breach of planning by change of use. A number of questions were asked, which were answered by the first defendant on 20 September 2009 from his address at 136 Perne Road, Cambridge. In answer to the question 'When did the car sales business first commence at Hill Trees?' The defendant replied 'Established'. He said that 6 to 8 vehicles were stored on the premises and that approximately one was sold every week.
On 3 February 2010, a further enforcement notice (PLAENF 3837) was served upon the first defendant in relation to areas A and B, alleging breach of planning control by change of use from residential to a mixed use of residential and the sale and repair of motor vehicles. The notice required the first defendant to cease using the land for the sale and repair of motor vehicles.
The first defendant appealed to the Inspector against the enforcement notice, and on 4 November 2010, the appeal was dismissed. The first defendant challenged the inspector's decision in the High Court under s289 TCPA. His application for permission to appeal, made in person, was...
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