Stavrinides v Secretary of State for Communities and Local Government

JurisdictionEngland & Wales
Judgment Date30 November 2010
Neutral Citation[2010] EWHC 3479 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCO/2636/2010
Date30 November 2010

[2010] EWHC 3479 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Before: Vincent Fraser QC

(Sitting as a Deputy High Court Judge)

CO/2636/2010

Between
The Queen on the Application of Stavrinides
Claimant
and
Secretary of State for Communities and Local Government
First Defendant
and
Southend on Sea Borough Council
Second Defendant

Mr John Dagg (instructed by Rudds) appeared on behalf of the Claimant

Miss Sasha Blackmore (instructed by Treasury Solicitor) appeared on behalf of the First Defendant

The Second Defendant was not represented, did not attend

(As Approved)

1

DEPUTY JUDGE: This is an application under Section 288 of the Town & Country Planning Act 1990 to quash the decision of the Secretary of State's inspector dismissing an appeal under Section 195 of the Town & Country Planning Act 1990. The decision letter is dated 15 January 2010, and followed an inquiry held on 17 November 2009.

2

The appeal before the inspector arose out of a refusal of Southend Borough Council to grant a certificate of lawful use for development under Section 191 (1) of the Town & Country Planning Act 1990 for the use of 23 First Avenue, Westcliff-on-Sea as a single family dwellinghouse and the construction of a rear ancillary building for the enjoyment of the host building. It should be noted that the terms in which the certificate was sought appear to have been use as a single family dwelling. This appears from the description at the beginning of the inspector's decision letter and also in paragraph 16 of the decision letter. It was accepted by counsel at the hearing before this court that that was the correct description although the certificate itself unhelpfully does not set out the description.

3

The inspector appears to have treated this as being the same use as a single dwellinghouse which is what he identified as the main issue in paragraph 5 of his decision letter in which he wrote:

"In order for the appeal to succeed and for a lawful development certificate to be issued, it is for the appellants to demonstrate that on the balance of probabilities the appeal property had been in continuous use as a single dwellinghouse for a period of at least four years before the material date, that is the application date of 15 October 2008."

4

It is agreed between the parties that the inspector had correctly identified the main issue and therefore nothing turns on the slight difference in terminology used between the main issue and the description of the certificate applied for.

5

Section 191 of the Town & Planning Act 1990 provides a procedure whereby anybody wishing to ascertain whether the use of a building or land is lawful may apply for a certificate of lawfulness of existing use of development from the Local Planning Authority. If the Local Planning Authority refuses a certificate there is provision to appeal under Section 195 of the Act. This case does not turn on the scope of those provisions, and therefore I do not propose to set them out.

6

The claimant had sought a certificate covering two matters: the use of the house and the construction of a building to the rear. The inspector found as a preliminary matter that the ancillary building could not be lawful as there was an enforcement notice in force against that building, and consequently the appeal addressed solely the use of the main building as a single dwellinghouse. No issue is taken about this. Again it is agreed that that was the appropriate course to take.

7

The decision was challenged on two grounds, namely failure to give adequate and intelligible reasons and, secondly, on the findings of fact made by the inspector his decision was Wednesbury unreasonable. Much of the argument before me centred upon the inspector's use of the term "two separate flats" in paragraph 15 of his decision letter. The Secretary of State had suggested at the outset that this was a new ground of challenge. It appears to me that the points made about the use of this term were implicit in the reasons and Wednesbury challenge in any event. Mr Dagg, who appeared on behalf of the claimant, applied for permission to add as a ground failure to consider the definition of "flat" in the General Permitted Development Order (GPDO) for avoidance of any doubt in the matter. I granted permission at the start of the hearing.

8

As the role of the General Permitted Development Order 1995 was significant in the argument before me, it is important to appreciate the background to the appeal which is summarised within the preliminary matters section of the report. The ancillary building at the rear of the property had been the subject of enforcement action by the council. That was the subject of an unsuccessful appeal. At paragraph 3 of his decision letter this inspector records.

"3 ….. in her decision [that is the previous inspector] on the previous enforcement appeal, my colleague notes that at the heart of the case was the appellant's contention that the lawful use of No 23 is of a single dwellinghouse. It was not a matter for her determination in that appeal, and she further suggested that it might be formally established through the Section 191 process. If the appellant's contention were found to be correct, then it would be open to the council to reconsider the structure as an ancillary building that might benefit from permitted development rights, and to consider withdrawal of the previous enforcement notice."

9

It can be seen that the application that was made in this case to the council appears to have been prompted by that previous inspector's suggestion that the lawfulness of the use of the premises as a single dwellinghouse could be established through the Section 191 process. That in turn was important because of the contentions that had been made about whether there were permitted development rights.

10

I should, for the sake of completeness, also refer to paragraph 4 of the decision letter which reads:

"I note also that the council have recently issued a certificate of lawful proposed use under Section 192 (1) (a) of the Act to the effect that on 29 September 2009 the conversion of the appeal property to a single dwellinghouse would be lawful. It is again open to the council to withdraw the enforcement notice and to reconsider the structure as an ancillary building that might benefit from permitted development rights. However I note that it would be considered in the light of the October 2008 amendment to the GPDO."

11

Hence, it can be seen that the attempt to establish that the ancillary building was permitted development under the GPDO was at the heart of the application before the inspector, and the parties and the inspector must all have been aware that at issue was the question whether the property qualified as a dwellinghouse for the purposes of the GPDO.

12

The terms "dwellinghouse" and "single dwellinghouse" are not defined in the Town & Country Planning Act 1990. However Article 1 (2) of the GPDO 1995 provides a partial definition of the term "dwellinghouse" in that it provides that -

"A dwellinghouse does not include a building containing one or more flats or a flat contained within such a building."

The Article furthermore defines "flat" in these terms as -

"….. a separate and self-contained set of premises constructed or adapted for use for the purposes of a dwelling and forming part of a building from some other part of which it is divided horizontally."

13

There have been a number of authorities on what amounts to a dwellinghouse, some of which have been cited to me. The authorities establish that whether a property amounts to a dwellinghouse is essentially one of fact and degree. One must consider both the property's physical attributes and its use. Again this was common ground between the parties. Therefore I do not need to spend time setting out authority on this but it can be seen, for example, in Gravesham Borough Council v Secretary of State for the Environment [1982] 47 P & CR, 142 and Grendon v First Secretary of State [2006] EWHC 1711 Admin, paragraphs 7, 13 and 21.

14

It is common ground that these are essentially matters for determination by the inspector, and the mere fact that others might have come to a different conclusion as to whether on the facts the property was a dwellinghouse does not of itself provide any ground for challenging the inspector's decision.

15

The inspector has between paragraphs 6 and 15 a section which he headed "Reasons". It is fair to say that paragraphs 6 to 12 appear essentially to be a recitation of the facts as found by the inspector. It is the following paragraphs that are the reasons. I read first the inspector's summary of the factual background at paragraph 6:

"Reasons

6 The appeal property is a substantial two-storey semi-detached property on the northern side of First Avenue built in the early 20th century. This part of First Avenue is predominantly developed with detached and semi-detached properties of similar scale to the appeal premises, and mainly in some form of residential use.

7 At the time of my visit there were extensive works in progress —the front entrance hall and front room had been formed into a single space, sanitary and culinary fixtures had been removed, and there had clearly been alterations to a number of partition walls.

8 It is apparent from descriptions given at the inquiry, that there had been a kitchen and a shower/WC on the ground floor in the back extension. Otherwise on the ground floor was a spacious entrance hall, three principal rooms in the main body of the building, and a...

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