Winchester City Council (Claimant / Appellant) v Secretary of State for Communities and Local Government (1st Defendant / Respondent) Mr M Wall, Mr M Black, Mrs S Wall, Mr D Birch, Mr D Carter, Mr M James (2nd Defendants / Respondents)
| Jurisdiction | England & Wales |
| Judge | Philip Mott |
| Judgment Date | 01 February 2013 |
| Neutral Citation | [2013] EWHC 101 (Admin) |
| Docket Number | Case No: CO/149/2012 & CO/532/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 February 2013 |
[2013] EWHC 101 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Philip Mott QC
Sitting as a Deputy High Court Judge
Case No: CO/149/2012 & CO/532/2012
and
Trevor Ward (instructed by Winchester City Council) for the Claimant/Appellant
Stephen Whale (instructed by Treasury Solicitor) for the 1 st Defendant/Respondent
Michael Rudd (instructed by direct access) for the 2 nd Defendants/Respondents
Hearing dates: 25 January 2013
Philip Mott QC:
On 9 December 2011 a Planning Inspector appointed by the Secretary of State for Communities and Local Government ("SSCLG") issued a Decision Letter in respect of six appeals against enforcement notices issued by the Winchester City Council ("WCC") and one appeal against the failure of WCC to determine a planning application submitted to it ("the planning appeal"). The Inspector quashed the enforcement notices and took no further action on the planning appeal.
WCC now applies for permission to appeal under section 289 of the Town and Country Planning Act 1990 ("the 1990 Act") against the quashing of the enforcement notices, and challenges under section 288 of the 1990 Act the decision on the planning appeal.
By consent it was ordered on 8 March 2012 that the two matters be heard together, and that the substantive and permission stage in relation to the section 289 appeal be held together as a rolled up hearing.
I have concluded that permission should be granted under section 289 and the appeals allowed. As a result, it is agreed, the matter will have to go back to the SSCLG to appoint another Inspector to determine the enforcement notice appeals afresh. As to the section 288 challenge, I dismiss this on the merits and on a discretionary basis.
Background
The premises concerned are at Carousel Park, Basingstoke Road, Micheldever, Hampshire. On 16 April 2002 a planning application was submitted for "Change of use of land to travelling showpeople's use". The existing use of the land was stated to be "Redundant agricultural". A block and location plan was submitted which was not put before me.
On 2 October 2003 permission was granted for "Change of use of agricultural land to travelling showpeoples' site" in accordance with the plans and particulars submitted with the application, subject to 15 conditions. The relevant conditions for present purposes are as follows:
4. No development shall take place until there has been submitted to and approved in writing by the Local Planning Authority a plan for each pitch indicating the positions, design, materials and type of boundary treatment and gates to be erected, the position of all areas of hardstanding and storage, the position and sizes of all residential caravans and any other temporary or permanent structures or buildings and the areas of open amenity space. Development shall be carried out in accordance with the approved details before the pitches are first occupied.
5. No vehicles, equipment, caravans, mobile homes or other structures on the site are to exceed 4.5 metres in height above ground level.
7. No maintenance, repairs or testing of equipment or vehicles shall be carried out other than between the hours of 0730 and 1800 Monday to Friday and 0730 and 1800 Saturdays and at no time on Sundays and Bank Holidays, unless otherwise agreed in writing by the Local Planning Authority.
10. There shall be a maximum of three caravans or mobile homes occupied for residential purposes on each pitch. Any additional touring caravans used by the travelling showpeople may be stored within the defined storage areas but may not be occupied for residential purposes at any time.
11. There shall be no more than 9 family pitches on the site and the pitches may not be sub-divided at any time.
13. In the event that the site ceases to be used for the purposes of travelling showpeople, it shall be restored to its former condition. All structures, hardstandings, equipment, vehicles and materials brought onto the site in connection with the use shall be permanently removed from the land within 12 months of the use ceasing.
15. No more than 50 people shall occupy the site at any time.
None of the conditions attached to the planning permission expressly restricted the occupation of the site to travelling showpeople, as they could have done.
At the same time as the grant of the planning permission a section 106 agreement was entered into, which was designed to restrict the occupation of the site to travelling showpeople. However it appears to have been defective, and in any event was not expressly incorporated into the planning permission as it could have been.
Enforcement notices were issued by WCC on 6 September 2010 because it was thought that the site was being occupied by gypsies and travellers who were not travelling showpeople. Whether this is so in fact is disputed. The notices alleged that this constituted a material change of use from that permitted by the 2003 planning permission. Whether such a change of use would be "material" is also disputed. Neither issue has been the subject of any finding on appeal to the Inspector, and neither arises for determination in these proceedings.
The notices were appealed on a number of grounds, as follows:
(a) that planning permission should be granted for the breach of planning control alleged;
(b) that the matters alleged had not occurred;
(c) that the matters, if they occurred, did not constitute a breach of planning control;
(d) that at the date the enforcement notice was issued no enforcement action could be taken against the matters alleged to be in breach;
(f) that the steps required by the enforcement notice to remedy the breach of planning control were excessive;
(g) that the period for compliance specified in the notice to remedy the breach of planning control fell short of what should reasonably be allowed.
At the appeal hearing the notices were amended by agreement, and Grounds (c) and (d) were withdrawn in their entirety. The Inspector decided the appeals only on one limb of Ground (b), namely that the planning permission should be interpreted as being simply "use as a residential caravan site" and not restricted to travelling showpeople. He made no findings in respect of the remaining limb of Ground (b), which was that the occupants were in fact travelling showpeople. He also did not consider Grounds (a), (f) or (g), and took no further action on the planning appeal.
The basis of the Inspector's decision to allow the enforcement notice appeals was one of law, as he acknowledged. It arose from the decision of this court in I'm Your Man Limited v Secretary of State for the Environment (1999) 77 P&CR 251, a decision of Robin Purchas QC sitting as a Deputy High Court Judge. The Inspector set out his interpretation in paragraph 23 of his Decision Letter:
"I acknowledge that it is a matter of law but in my view, I'm Your Man decided a point of principle concerning limitations on planning permissions; it was not concerned with the detail of what type of limitation was being debated. In these circumstances I conclude that it is clear that the 2003 planning permission is not limited as there is no condition attached to it that restricts occupancy and the legal agreement, which does contain a restriction, was not incorporated into the permission."
Having concluded that he could not look to the terms of the section 106 agreement as it was not incorporated into the terms of the planning permission (a conclusion which is not challenged in this appeal), he concluded in paragraph 26 of his Decision Letter:
"Taking all these factors into consideration I conclude that the 2003 permission, in line with the decision in I'm Your Man, is for the use of the land as a residential caravan site with no restrictions on who may occupy the site. In those circumstances the appeals succeed on ground (b) and the notices as corrected and varied will be quashed."
Planning permission and enforcement notices
Section 57 of the 1990 Act provides that, in general, "permission is required for the carrying out of any development of land". By section 55(1) "development" is defined as including "the making of any material change of use of any buildings or other land".
Section 55(2) provides that certain operations and uses of land shall not be taken to involve development. They include, by paragraph (f), "in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of buildings or other land … for any other purpose of the same class".
The Secretary of State has made such an order setting out various categories known as "Use Classes" in the Town and Country Planning (Use Classes) Order 1987. Uses which do not fall within any use class are considered "sui generis". These will include, for instance, theatres, scrapyards and petrol filling stations.
Section 75 of the 1990 Act sets out the effect of planning permission. It is a grant which enures for the benefit of the land, and thus runs with the land. The section continues:
(2) Where planning permission is granted for the erection of a building, the grant of permission may specify the purposes for which the building may be used.
(3) If no purpose is so specified, the permission...
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