Sumption and Another v London Borough of Greenwich
| Jurisdiction | England & Wales |
| Judgment Date | 2007 |
| Neutral Citation | [2007] EWHC 2776 (Admin) |
| Year | 2007 |
| Docket Number | Case No: CO/4758/2007,CO/2140/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 2007 |
[2007] EWHC 2776 (Admin)
Mr Justice Collins
Case No: CO/4758/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
This claim seeks to quash the grant to the Interested Party (IP) by the defendant of a certificate of lawfulness pursuant to s.192 of the Town and Country Planning Act 1990. The certificate, granted on 17 January 2007, certified that on 28 November 2006 (the date when the application was received by the defendant) the operation, namely the erection of a boundary wall and gates under 1 metre in height in respect of Hillside House, 13 Crooms Hill, Greenwich, would have been lawful within the meaning of the Act. The certificate was defective in that it referred to s.191 instead of s.192 of the Act, but, as Mr Sumption properly accepted, that could not justify quashing it. The error did not affect the substance of the certificate. The reasons given were these:—
"The proposed development namely the erection of a boundary wall and gates under 1m in height conforms with the criteria of the Town & Country Planning Act 1990 General Permitted Development order, Part 2 Minor Operations. Class A. As such the proposed development is permitted."
Hillside House in Crooms Hill, Greenwich is a Grade II listed building. It is in a conservation area, part of a UNESCO World Heritage Site comprising a visual whole with Greenwich Park and the Royal Naval Hospital within it. Crooms Hill contains a number of houses built between the 17th and the early 19th centuries all of which are listed and which create a harmonious whole. The claimants live on the other side of Crooms Hill opposite Hillside House.
The present Hillside House was constructed in the early 19th century on the site of an existing cottage originally built in the 17th century on what was a relatively small strip of land lying between the wall of Greenwich Park and a public way (now Crooms Hill) between Greenwich and Blackheath. It was substantially extended in the 1880s. By the mid nineteenth century the garden of Hillside House constituted a roughly triangular area, its western boundary being the wall of Greenwich Park. Its eastern boundary was for a short distance bounded by Crooms Hill and then it veered towards the Park wall forming the triangle. The park wall and Crooms Hill meet to the north leaving a narrow area of land which was owned until the IP bought it in 2004 by a convent and school on the other side of Crooms Hill. The IP erected a chestnut paling fence running as an extension to the existing fence to the then garden of Hillside House along the boundary of Crooms Hill until it abutted the park wall at the apex of the extended triangle.
In 2005 and 2006 applications were made for planning permission to build a wall in place of the fence. Objections were made to those applications which were turned down. The objections were based on the need to protect the settings of the listed buildings in and the conservation area itself. The application which led to the certificate was for a brick wall about 125 metres in length with a 1 metre gate towards its north-western end. The application form stated:—
"The proposed boundary wall would replace the existing timber 'chestnut fencing' to provide a new means of enclosure to the recently expanded garden of Hillside House. It will extend from the existing wall of the house at its southern end, to the existing Greenwich Park wall, at its northern end. The proposed 1m wall will not be fixed to, or physically abut, the existing Hillside House boundary wall on the Greenwich Park wall to the south and north respectively. A narrow gap of approximately …10mn will be left between the proposed new wall and the existing walls to either end."
Section 192(1), so far as material enables anyone who wishes to ascertain whether any operations proposed to be carried out on land would be lawful to make an application to the local planning authority 'specifying the land and describing the … operations in question'. S.192(2) provides:—
"If, on an application under this section, the local planning authority are provided with information satisfying them that the … operations described in the application would be lawful if begun at the time of the application, they shall issue a certificate to that effect, and in any other case they shall refuse the application.
S.192(3) requires reasons to be given in the certificate for determining the operations to be lawful as well as specifying what it must otherwise include. By s.192(4), the lawfulness of any operations for which a certificate is in force "shall be conclusively presumed unless there is a material change, before the … operations are begun, in any of the matters relevant to determining such lawfulness."
The certificate was granted on 17 January 2007. This claim was lodged on 8 June 2007. This has led the IP, but not the defendant, to assert that there has been undue delay which should require that relief is refused whether or not it would otherwise be considered appropriate. The procedure set out for obtaining a certificate of lawfulness does not require any notification to be given either to the public generally or to any individual who might be affected by the development. Thus the claimants could not have known that the application had been made nor that it had been granted unless the IP had chosen to inform them or others, such as the Greenwich Society which, by its objections to the previous planning applications, had shown itself to be opposed to the development sought. It was not until excavation works commenced on 5 June 2007 for the footings for the wall that the claimants became aware of the grant of the certificate. They immediately made their claim that the certificate ought not to have been granted known. On 8 June the claim was lodged and an interim injunction toprevent any work continuing sought and obtained. There is a cross-undertaking in damages.
In my view, it is quite impossible in those circumstances to conclude that there has been any undue delay in taking action to challenge the certificate. Since Charles, J granted permission, the relevant test, as he recognised, is that set out in s.31(6) of the Supreme Court Act 1981. That enables the court, if there has been undue delay, to refuse relief if it would, inter alia, be prejudicial to anyone to do so. But the reference to 'undue delay' presupposes that the claimant has been guilty of delay, which may in some circumstances not need to be long. In this case the claimants acted with the greatest expedition the moment they were aware – and they could not have been aware before – that the operations in question were permitted.
I am bound to say that I think there is a need to give consideration to whether some publicity or notification of applications under s.192 should be required. Good neighbourliness no doubt indicates that any land owner who intends to carry out development which, even though it may affect his neighbour (for example, a permitted extension to his house which could mean there was overlooking or loss of light or other amenity), may not be preventable should inform that neighbour. Discussions could take place to see whether variations which lessened any adverse impact could be made. But sometimes, as this case demonstrates, there may be valid objections to the grant of any certificate or at least arguments which the planning authority should take into account. If any impact would affect the value of adjoining land, there is the need to consider the possible application of the 1998 c. 42 with particular regard to Article 6 of the ECHR: cfOrtenberg v Austria 19 EHRR 524.
The grant of the certificate presupposes that the building of the wall is development within the meaning of the Town & Country Planning Act 1990 (the 1990 Act). Section 55(1) of the 1990 Act defines the type of development with which this case is concerned as:—
" the carrying out of building, engineering, mining or other operations in, on, over or under land.."
"For the purposes of this Act "building operations" include –
(a) demolition of buildings;
(b) rebuilding;
(c) structural alterations of or additions to buildings; and
(d) other operations normally undertaken by a person carrying on business as a builder."
'Building' is defined in s.336 in these terms:—
"'building' includes any structure or erection, and any part of a building, as so defined …"
'Erection' is defined to include 'extension, alteration or reerection". InR(Hall Humber partnership) v First Secretary of State [2006] EWHC 3482 (Admin), a case which concerned polytunnels in which soft fruits were grown, Sullivan, J, applying earlier authority, in particular Skerritts of Nottingham Ltd v Secretary of State (No 2) [2000] 2 PLR 102, observed (Paragraph 24):—
"If the 'thing' (to use a neutral phrase) that is placed on the land is sufficiently large, sufficiently attached to the land and sufficiently permanent as to amount to a 'building', then, while it is in situ, the character of the land is changed from that of open land without any building upon it to land upon which a 'building' stands."
No doubt size is often to be regarded as a material consideration in determining whether what is placed on the land is a building; if it is not, there will have been no development. A means of enclosure, in this case a wall, of a height of 1m is not...
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