Stephen GRENDON v The First Secretary of State & Cotswold District Council
| Jurisdiction | England & Wales |
| Judgment Date | 14 July 2006 |
| Neutral Citation | [2006] EWHC 1711 (Admin) |
| Docket Number | Case No: CO/1399/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 July 2006 |
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
The Honourable Mr. Justice Mccombe
Case No: CO/1399/2006
Mr. David WATKINSON (instructed by Community Law Partnership) for the Claimant
Mr. James STRACHAN (instructed by Treasury Solicitor) for the Respondents
Mr Justice McCombe :
This is an application under Section 288 of the Town and Country Planning Act 1990 ("the Act") challenging a decision of Mr. C. Whitehouse, an Inspector appointed by the First Defendant, given by a decision letter ("the Letter") dated 5 January 2006. By his decision the Inspector dismissed the Claimant's appeal under Section 195 of the Act against a refusal by the Second Defendant to grant a certificate of lawful use or development ("LDC") for the use of a building as a dwelling in respect of certain premises known as Hermit's Corner, Brimpsfield Common, Brimpsfield, Gloucestershire.
The statutory framework governing the grant of LDCs has been helpfully set out in paragraphs 5 to 10 and 13 and 14 of the written outline argument of Mr. Strachan for the First Defendant. Only limited reference to that material is necessary. Section 191 of the Act sets out a procedure whereby persons wishing to ascertain whether any existing use of land is lawful, in terms of the planning legislation, may make application for that purpose to the local planning authority: see Section 191(1). By Section 191(2) it is provided that for the purposes of the Act a use of land is lawful if no enforcement action may be taken in respect of that use. Under Section 191(4) if the local planning authority is provided with information satisfying it of the lawfulness at the relevant time of the use in question, it shall issue a certificate to that effect, and in any other case it shall refuse the application.
The issue to be decided in this case was whether enforcement action could be taken in respect of the use of the subject premises as a single dwellinghouse. Section 171B of the Act provides as follows:
"(2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach."
It was the Claimant's contention that no enforcement action could be taken in respect of the use of the subject premises as a dwelling as any breach had occurred longer than four years prior to the date of the application. The application was made on 16 July 2004 and accordingly, to prevent enforcement action being taken, the breach consisting in the change of use must have occurred before 16 (or perhaps 17) July 2000. An enforcement notice in respect of an alleged breach by way of change of use from agricultural to residential use was served on 20 August 2004; no appeal was brought by the Claimant against that notice.
The Second Defendant refused the grant of the certificate sought by the Claimant. He appealed against that refusal and the Inspector dismissed the appeal. The Claimant now challenges the Inspector's decision. He makes three broad points, amplified in writing and orally, through Mr. Watkinson who appeared on his behalf before me. His three points are:
i) The Inspector misdirected himself in law as to the test to be applied for determining whether a building was a dwellinghouse;
ii) In reaching his decision the Inspector failed to apply the principles to be derived from the decision of the House of Lords in Uratemp Ventures Ltd. v Collins [2001] UKHL 43 (a decision under the Housing Act 1988);
iii) The Inspector wrongly failed to determine that the premises were a dwellinghouse within Section 171B(2) of the Act.
At the beginning of the Letter the Inspector set out the background to the case and the site description in the following terms:
"1. The appellant lives by himself in a small, one-room building in woodland in a Cotswold valley. A simple stone shelter has existed on the site for many years. In 1982 the previous owners obtained planning permission to re-roof the shelter and it seems that in the process a wooden veranda with shutters was added to the south side. The building was used as a store in connection with a small allotment garden that had been created in the clearing. A local resident says that the previous owners were naturists who used the shelter and allotment garden as an occasional retreat where they could enjoy the fresh air in privacy.
2. The appellant bought the land in 1994 and stationed on it an ex-army lorry that had been converted to provide living accommodation. The lorry was placed on raised supports adjoining the shelter, until it was towed away in 2003.
3. The building measures about 4.25m x 5.8m and has a monopitch roof of corrugated sheets. It has a small window under the eaves at the north end and the south end was until recently largely open when the wooden shutters were folded back. Within the last year a window has been fitted behind the shutters. There is a sleeping platform at one end of the room and a sitting area with a settee at the other. Heating is provided by a wood burning stove and there is a butane gas hob for cooking. The walls are largely occupied with shelving containing books, music CDs and other personal possessions. Electricity has recently been connected, but for most of the period of occupation light has been provided by candles and paraffin lamps. There is no running water, bathroom or toilet at the property.
4. Mr. Grendon does some garden maintenance work locally but suffers from bouts of depression and has support from a Community Mental Health Nurse. He values the simplicity of his unconventional lifestyle and the peace and quiet of the rural location. The name "Hermit's Corner" is one that Mr. Grendon has chosen himself, and in my view it gives some indication of how he regards his occupation."
He then set out what he described as the "Main Considerations" as follows:
"I consider the main considerations in this case to be: (i) whether as a matter of fact and degree the building is a dwellinghouse, and if so, (ii) whether it has been used as a single dwellinghouse during the relevant four year period prior to the submission of the LDC application."
Counsel agree that those were indeed the main considerations. The Letter then proceeds under a cross-heading entitled "Whether a dwellinghouse". The Inspector referred to three cases which were cited to him, two of which have been cited to me, and in particular to Gravesham BC v Secretary of State for the Environment & anor. (1982) 47 P & CR 142. From those cases, the Inspector stated that he considered that the question whether the building is a single dwellinghouse must be considered by reference both to its use and its physical attributes. Again there is no dispute between the parties as to the correctness of that approach. The Letter then states as follows:
"12. Council officers first inspected the interior of the building in 2002, and it is accepted that the appellant has lived there permanently since that time. The building therefore contains the basic facilities necessary for Mr. Grendon's "hermit-like" existence. He draws water from a spring on the edge of the common for washing and drinking and he digs holes in the wood for toilet purposes.
13. I regard the lack of running water and a toilet as serious shortcomings in terms of the day to day facilities normally expected in a dwelling house. The small, single-room size of the building also sets it apart from what I would regard as a dwellinghouse. To this I would add the lack of proper windows. Until recently the south end was open to the elements when the wooden shutters were open and, when they were closed, there would be hardly any natural light inside. The building was not constructed as a house and it does not in my opinion look like a house. Taken together, these factors in my view enable a clear distinction to be drawn between the appeal building and the holiday chalet that was the subject of the Gravesham case."
I omit paragraph 14 which merely refers to a previous decision of the Second Defendant in respect of other premises. In paragraph 15 the Letter then states:
"I conclude as a matter of fact and degree that the building is not a dwelling house."
The Letter then passes to a section headed, "Period of Occupation". Paragraph 16 is in the following terms:
"Much of the evidence at the inquiry concerned the length of time that the appellant has lived in the building. Since I have concluded that the building does not have the physical attributes of a dwellinghouse, it can not in my view be made one simply by being lived in for a period. Therefore, even if the appellant can demonstrate that he had lived in the building for the whole of the four-year period prior to the application that would not justify the granting of a lawful development certificate as a dwellinghouse. For this reason it is not necessary for me to deal in detail with the conflicting evidence concerning the period of occupation. However, I consider it relevant to assess aspects of the evidence concerning the use made of the converted lorry, since this has some bearing on the extent of use of the shelter."
The Inspector then proceeds to deal with the evidence before him on the Claimant's side that the Claimant had lived in the building for more than four years and had used the lorry mainly for storage. He also cited evidence from the Claimant accepting...
To continue reading
Request your trial
- King v Udlaw
-
R Grendon v The Secretary of State for Communities and Local Government and Another
...came before McCombe J on 29 June 2006. He dismissed the application for reasons set out in a judgment handed down on 14 July 2006, [2006] EWHC 1711 (Admin). At paragraph 7 of his judgment the judge noted that the inspector had directed himself that the question whether the building is a si......
-
Stavrinides v Secretary of State for Communities and Local Government
...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......