The London Borough of Brent v The Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Neil Cameron |
| Judgment Date | 10 June 2019 |
| Neutral Citation | [2019] EWHC 1399 (Admin) |
| Docket Number | Case No: CO/5129/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 June 2019 |
[2019] EWHC 1399 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Neil Cameron QC
(Sitting as a Deputy High Court Judge)
Case No: CO/5129/2018
and
Dr Ashley Bowes (instructed by Prospect Law Ltd) for the Appellant
Mark Westmoreland Smith (instructed by the Government Legal Department) for the First Respondent
Matthew Henderson (instructed by Browne Jacobson LLP) for the Second Respondent
Hearing date: 22 May 2019
APPROVED JUDGMENT
The Deputy Judge ( Neil Cameron QC):
Introduction
This is an appeal made by the Appellant pursuant to section 289 of the Town and Country Planning Act 1990 (“TCPA 1990”) against a decision made by letter dated 28th November 2018 of an inspector appointed by the Secretary of State for Housing, Communities and Local Government. By that decision, the inspector allowed the Second Respondent's appeal against an enforcement notice issued by the First Respondent which, as corrected by the inspector, alleged the following breach of planning control “without planning permission the material change of use to a mixed use as a school, nursery, for religious gatherings, celebrations, parties conferences, meetings, sports and leisure activities (i.e. parking that is not ancillary to the uses as a school, nursery, for religious gatherings, celebrations, parties conferences, meetings, sports and leisure activities)”
By an order dated 25 th January 2019 Robin Purchas QC sitting as a Deputy High Court Judge granted permission to bring these proceedings on Ground 1 as set out in the Appellant's Grounds of Appeal.
In Ground 1, which is the only ground before the Court, the Appellant contends that:
The First Respondent's inspector failed to ‘grapple’ with the Council's case that a material change of use the land through intensification occurred in 2016
The Background Facts
On 12 th April 2017 the Appellant Council, in the exercise of the power conferred on them by section 172(1) of the TCPA 1990 issued an enforcement notice. The notice stated (so far as relevant):
SCHEDULE 1
THE LAND OR PREMISES AFFECTED
Oakington Manor Primary School, Oakington Manor Drive, Wembley, HA9 6NF
(“the premises” — shown outlined bold in BLACK on the attached plan)
SCHEDULE 2
THE ALLEGED BREACH OF PLANNING CONTROL
Without planning permission, the material change of use from a school to a mixed use as a school and a carpark (i.e. parking that is not ancillary to the use as a school).
(“the unauthorised change of use”)
SCHEDULE 3
REASONS FOR ISSUING THIS NOTICE
…………
SCHEDULE 4
WHAT YOU ARE REQUIRED TO DO
TO REMEDY THE BREACH OF PLANNING CONTROL — S173 (4)(A)
STEP 1 Permanently cease the use of the land/premises as a public car park.
STEP 2 Do not use the premises for car parking, except for parking that is ancillary to the use as a school.
STEP 3 Remove all vehicles from the premises, except those which are associated with the school.
STEP 4 Remove all advertisements and signs associated with the public parking use.
STEP 5 Remove all other items associated with its use as a public car park.
SCHEDULE 5
TIME FOR COMPLIANCE
Day after this notice takes effect.
SCHEDULE 6
WHEN THIS NOTICE TAKES EFFECT
This notice takes effect on 22 May, 2017 unless an appeal is received prior to the effective date.
The Second Respondent (“the School”) appealed to the First Respondent (“the Secretary of State”) against the enforcement notice. The appeal was brought on the grounds set out at paragraphs (a), (d), and (g) of section 174(2) of the TCPA 1990.
In the School's Grounds of Appeal to the Secretary of State it stated:
“3.3 It is our client's case that it has been providing parking that is not ancillary to the use of the school for more than 20 years. The mixed use referred to in the Notice has been continuous for that period.”
In their Statement of Case the Council set out their position on the Ground (d) appeal:
i) At paragraph 3.1.1 and 3.1.3 they stated that the “burden of evidence” was on the School to show that the change of use took place before 12 th April 2007 (ten years before the enforcement notice was issued) and that it was continuous over the period from 12 th April 2007 to 12 th April 2017 such that enforcement action could be taken against the use at any time during those ten years.
ii) Wembley Stadium was closed from 7 th October 2000 until it was officially re-opened on 19 th May 2007, and therefore stadium related parking could not have taken place over that period, and that a seven year period must be regarded as a cessation of use (paragraph 3.1.4). The Council further stated: “the New Wembley stadium had not been open for a period of ten years at the time the notice was issued, and as a result unauthorised parking on site could not be considered immune to enforcement action” (paragraph 3.1.4).
iii) The Council advanced an alternative argument that as event day parking at the school is temporary, each incidence of use is temporary and creates a new chapter in the planning history (paragraph 3.1.5).
An inquiry was convened to consider the School's appeal to the Secretary of State, and an inspector was appointed to determine the appeal.
At the inquiry, the Council instructed Nigel Wicks to act for them as witness and as advocate. Mr Wicks produced a proof of evidence, in which he stated (inter alia):
“5.1.1 Car parking in association with events at Wembley stadium has, without doubt, occurred at or around the appeal site, in common with most other viable sites within walking distance, during the past 22 years. The issue is whether at any time throughout a continuous 10 year period the Council could have taken enforcement action against a material change of use of the appeal site. Whilst the appellant has provided evidence of a more commercial and organised use of the appeal premises in more recent times it is clear that:
…………
(g) The use the subject of the enforcement notice, involving public parking of around 300 cars spread across most of the appeal site, is materially different to activities that have occurred at the appeal site over the preceding 20 years.”
At the inquiry the parties reached agreement on an amendment to schedule 2 to the enforcement notice, being the Council's statement of the matters which appear to them to constitute the breach of planning control. The re-formulation is recorded in the inspector's decision letter.
At the inquiry Mr Wicks supplied a written version of his closing submissions. Those closing submissions included the following, at paragraph 29:
“29. In the unlikely event that you conclude that 60 cars, parked one day in March 2007, followed by a further 500 cars parked over a further 7 days during the rest of that year, was the beginning of a new intermittent mixed use. There is a material difference between that use and the use the subject of the enforcement notice involving around 8,000 cars parked over 42 days in a year. The former activity is parking that is but a contributory part to the general comings goings and activities on the land, during the brief and irregular periods it happened, the latter totally dominates comings goings and activities on the land for most weekends and many other evenings of the year. What is happening on the land and its impact off the land results in a change the character of the use from anything that happened in 2007 (Mistry). Hertfordshire v. SoSCLG and Metal and Waste Recycling [2012] EWCA Civ 1473 para 25.”
The reference to ‘Mistry’ in paragraph 29 of Mr Wicks' closing submissions is a reference to the evidence of Mr Mistry a local resident, who appeared at the inquiry.
At the inquiry the School was represented by a partner and another solicitor from the firm of Browne Jacobson LLP. The partner, Mr Barlow, has provided a witness statement in these proceedings. At paragraph 11 of that witness statement he states:
“I can confirm that at no time in the evolution of the description of the breach did the Council ever raise the suggestion that the material change of us which it sought to enforce against was an intensification of a mixed use which included parking. Rather the Council's position was always that the material change of use was caused by the introduction of a new primary parking use.”
The inspector appointed to determine the School's appeal gave her decision in a letter dated 28 th November 2018 (“the DL”)
i) At DL5 the inspector recorded the agreement between the parties on the correction to schedule 2 of the enforcement notice:
“Without planning permission, the material change of use to a mixed use as
school, nursery, for religious gatherings, celebrations, parties conferences,
meetings, sports and leisure activities and parking (i.e. parking that is not ancillary to the uses as a school, nursery, for religious gatherings, celebrations, parties conferences, meetings, sports and leisure activities).”
ii) At DL 6 the inspector stated:
“In my view, the corrected allegation, agreed by the main parties, accurately identifies the mixed use on the appeal site at the time the notice was served.”
iii) At DL 7 the inspector stated:
“In appealing on ground (d), the burden of proof is firmly on the appellant to demonstrate, on the balance of probabilities, that the development was lawful through the passage of time at the date when the enforcement notice was issued. That is, had there been a material change of use to a mixed use as school, nursery, for religious gatherings, celebrations, parties conferences, meetings, sports and leisure activities and parking (i.e. parking that is not ancillary to the use as a school, nursery, for...
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