London Borough of Haringey, R (on the application of) v Secretary of State for Communities & Local Government & Anor [2008] EWHC 1201 (Admin)

CO/2906 & 3379/2008[2008] EWHC 1201 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 8th May 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF LONDON BOROUGH OF HARINGEYClaimantv
Between
THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendantO.A KWATENG (EBENEZER COMMUNITY LEARNING CENTRE)Defendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr G Jones (instructed by LB Haringey) appeared for ClaimantMr J Litton (instructed by the Treasury Solicitor) appeared for First Defendant for The Second Defendant did not attend and was not represented
J U D G M E N T
[1]MR JUSTICE SULLIVAN: There are two applications before the court. The first is an application for permission to appeal under section 289 of the Town and Country Planning Act 1990, and the second is an application to quash under section 288 of the Act. Both of the applications relate to the same decision letter by an Inspector appointed by the first respondent to determine an appeal made by the second respondent against an enforcement notice served by the claimant. The Inspector's decision letter is dated 27th February 2008. Since the application for permission to appeal and the application to quash under section 288 raised precisely the same issue, I indicated at the outset of the hearing that the appropriate course was to grant permission to appeal under section 288 and to consider the appeal and the application together. Mr Litton on behalf of the first respondent agreed to that course.[2]The enforcement notice issued by the claimant related to Unit 1, Gaunston House, Markfield Road, London, N15 4QQ. The breach of planning control alleged in the notice was: without planning permission, the unauthorised change of use from an industrial unit to a place of worship. The notice required the cessation of that use.[3]The second respondent appealed against the notice on ground (a) in section 174(2) of the Act; that is to say that planning permission should be granted. There was no suggestion in the notice of appeal that the use enforced against in Unit 1 was a lawful use.[4]The appeal was dealt with by way of written representations, but the second respondent did not put in any further representations beyond the notice of appeal. So far as material, that said:
"We are a faith based organisation that carries out educational training of students on a wide range of academic, vocational and theological programmes. The theology programme includes worship as a core part of the whole programme. We were therefore disappointed to be declined the use of our premises for multi-purpose activities, since it will deprive students currently enrolled on the theology programme from fully benefiting from all aspects of the course. We will not be able to teach and evaluate the practical aspect of the theology programme, as the worshipping aspect will not be achieved, which we must emphasise is a major component of the course. Additionally, the provision of a suitable place for worship and counselling is the foundation of our advertising campaigns for recruiting new students into Ebenezer Community Learning Centre. In furtherance of this, we have an established ritual of daily morning devotions on our premises to set the tone for the day. It is against this background that we are appealing to you to reconsider your decision to decline our application for the multi-purpose use of our premises."
In summary, the second respondent was seeking permission upon the basis that Unit 1 was not used simply for worship but also was used for educational and training purposes.[5]In its written statement of case, so far as material, the claimant noted the second respondent's case and responded:
"Policy EMP2 states that the preferred uses within these DEAs [Designated Employment Areas] are research and development, light and general industrial and warehousing B1, B2, B8. Any proposal outside the 'B' use classes will not be permitted. Planning permission should not be granted."
[6]It was against that background that the Inspector made his site visit on 8th February 2008. He said in paragraph 2 of his decision letter that the main issue was whether there were any material considerations that warranted departure from the Council's employment strategy for the borough. In paragraph 3 he said:
"Gaunston House is in the main divided into a number of commercial units, although towards its southern end the ground floor unit number 1a and the first floor unit above numbered 2 are used for the provision of education and vocational training. Unit 1 is the ground floor unit at the southern extremity of the building. Units 1, 1a and 2 are reached via a single entrance in the front (western) elevation of the building."
The Inspector went on to say in paragraph 4 that the building was situated within an industrial area which was included as a defined employment area in the Haringey Unitary Development Plan. He summarised the effect of Policy EMP2 of the UDP which seeks to protect and enhance such locations for employment uses falling within classes B1(b) and (c), B2 and B8. He said in paragraph 5 that the appellant did not seek to argue that the change of use of Unit 1 to a place of worship was an employment use identified as appropriate to this defined industrial location and said that:
"There is thus conflict with the provisions of the UDP. I am required to determine this appeal in accordance with the provisions of the UDP unless material considerations, which I shall next turn to, indicate otherwise."
The Inspector then went on to say in paragraphs 6 and 7:
"(6) Units 1a and 2 are already occupied by the Ebenezer Community Learning Centre. This is a faith based organisation that carries out educational training of students with a wide range of academic, vocational and theological programmes . . . (7) Nothing has been put before me to indicate that the educational use of Units 1a and 2 is unauthorised. This is a sizeable educational establishment in terms of floor space. Unit 1 is situated adjacent to the reception area of the learning centre and is set out with a stage at one end. It appears as an assembly or multi-purpose hall such as may be commonly found in all kinds of educational establishments. In floor space terms, it did not appear to me to be out of proportion with the size of the learning centre as a whole."
[7]The Inspector in the remaining paragraphs of the decision letter went on to consider the implications of the educational establishment and concluded, amongst other things, that there was a potential for serious conflict with the educational use of the site if Unit 1 reverted to a use in the B use class. He made certain observations about the means of access to Units 1, 1a and 2 and made the point that such a configuration of shared internal and external spaces was most unlikely to be attractive to business users. Cumulatively, he considered that these material considerations were sufficient to justify a departure from UDP policy. In paragraph 12 of the decision letter he said that he had studied two dismissed appeals that had been brought to his attention by the claimant, one of which related to Unit 6 Gaunston House. He said that each appeal was determined on its merits, and that:
"The close functional relationship between the place of worship in Unit 1 and the Ebenezer Community Learning Centre in Units 1a and 2 and the physical layout matters are important material considerations in the subject appeal and have led me to take a different view on this particular site."
[8]The appeal decision in respect of Unit 6 Gaunston House is dated 13th July 2007. In that decision letter, the Inspector noted that:
"Gaunston House is a commercial building divided into a number of commercial units. Unit 6 is located on the first floor."
That Inspector concluded that the use of Unit 6 as a place of worship could not be said to comply with Policy EMP2, that there was a breach of the development plan and that material considerations did not indicate a decision otherwise than in accordance with the plan. She said, when dealing with the use of the remainder of the building:
"Whilst there appear to be two other units within the building also used as places of worship, I do not have any information about the background to these."
[9]In the light of the conclusions in his decision letter, the Inspector decided that the appeal should succeed on ground (a) and that planning permission should be granted. He therefore quashed the notice and granted planning permission.[10]On behalf of the claimant, Mr Jones challenged the Inspector's underlying approach, that is to say the starting point for the Inspector's reasoning that there were material considerations which led him to take a different view than the previous Inspector and to depart from the development plan. As the Inspector put it, "Nothing has been put before me to indicate that the educational use of Units 1a and 2 is unauthorised". Mr Jones submits that that assumption, in respect of which there was no evidence whatsoever, was unfair in that it had been no part of the second respondent's case that the use of Units 1a and 2 as an educational establishment was an authorised use. In so far as the Inspector discovered that Units 1a and 2 were used for that purpose, it appeared to have been discovered on the site visit and the Inspectorate's standard guidance makes it perfectly clear that the purpose of a site visit "is not to discuss the merits of the appeal or to listen to arguments from any of the parties".[11]The decision is challenged not merely on the basis of unfairness, but also on the basis of a material error of fact since the assumption was based upon no evidence whatsoever and indeed is erroneous. The claim form, which is accompanied by a witness statement from the claimant's solicitor affirming its truth, states that in fact the use of Units 1a and 2 had not become lawful by passage of time and did not enjoy the benefit of planning permission. There has been no evidence to the contrary from the second respondent. No permission has been produced for the educational use and there is no evidence whatsoever that it was begun more than 10 years before the enforcement notice was issued.[12]Somewhat surprisingly in these circumstances where it is plain that there has been a material error of fact, the first respondent has chosen to defend this claim. It is submitted that in the light of what was said in the second respondent's appeal notice about the use of the premises for multi-purpose activities, that should have put the claimant on notice and should have led it, if it wished to do so, to assert that the educational use was not an authorised use. In my judgment, that argument is wholly misconceived. The appeal notice related to the enforcement notice which was directed at Unit 1. There was nothing in the second respondent's appeal notice to suggest that what was being said about its academic, vocational and theological programme related to any premises other than Unit 1. In short, in response to the allegation that Unit 1 was being used for the purposes of worship, it was being asserted by the second respondent that it was being used for other purposes including education. The second respondent's notice said nothing whatsoever about the use of Units 1a and 2. Therefore it is hardly surprising that the claimant's response did not deal with Units 1 and 2. It is clear that the use of those units was discovered by both the claimant and the Inspector only on the site visit, by which time of course it was far too late to give any evidence. Indeed, it would not be appropriate to assume that a representative from the local planning authority at a site visit would necessarily be in a position to deal with a wholly new, and potentially complex and important issue, such as whether or not a particular use taking place was or was not a lawful use.[13]Plainly what should have happened in the present case, given that there was no evidence whatsoever before the Inspector as to the lawfulness or otherwise of the use of Units 1a and 2, if he proposed to determine the appeal upon the proposition that the educational use was an authorised use, he should have raised that matter after the site visit and given the parties a proper opportunity to comment upon it in writing. Elementary fairness and common sense suggested that that was essential in the circumstances of this case, given the fact that the conclusion that the use as an educational establishment was not unauthorised was fundamental to the remainder of the decision. If the educational establishment was a lawful use then the remainder of the decision is readily understandable in terms of its assessment of the planning merits, even though the claimant might not agree with the Inspector's assessment of those merits. On the other hand, if the use as an educational establishment was not an authorised use, then the remainder of the Inspector's reasoning simply falls away. The fact that there would be a conflict, for example, in terms of access between business users and an unauthorised educational establishment would not be a reason to depart from the provisions of the development plan.[14]This is a case, therefore, where the Inspector had no evidence whatsoever that the use of Units 1a and 2 was authorised. It was not, therefore, appropriate for him to proceed on an assumption that the use was authorised. The fall back position (at least since the first appointed day following the Town and Country Planning Act 1947) must be that any development by way of a change of use requires a planning permission, and would be lawful only if it had the benefit of a planning permission or there was evidence that it had been in existence for 10 years. It is for the party asserting that a use is lawful to demonstrate that to the Inspector's satisfaction. It is certainly not appropriate -- and in the circumstances of this case was manifestly unfair -- to proceed upon the assumption that merely because a use exists it is not unauthorised.[15]Such evidence as there was pointed strongly to the likelihood that the use of Units 1a and 2 was not lawful. Gaunston House was a commercial building, divided into a number of commercial units (see the Inspector's decision in respect of Unit 6, to which the Inspector in this case had been referred). It was in a Designated Employment Area in the Local Plan, and there was no ground (d) appeal in respect of Unit 1, so it was unauthorised.[16]For these reasons -- that is to say a basic lack of fairness since the use of Units 1a and 2 did not feature in the claimant's appeal, let alone was any suggestion made that their use for educational purposes might be lawful, and because the assumption made in the absence of any evidence was both inappropriate given the statutory framework and led the Inspector to proceed on the basis of a material error of fact which was fundamental to the decision so that it amounted also to an error of law, the appeal and the application are allowed.[17]MR JONES: I am grateful to your Lordship. As I understand the position, under 288 the planning permission is quashed by your Lordship. Under section 289 there is an opinion that it goes back --

MR JUSTICE SULLIVAN: It is remitted to the Secretary of State.

[19]MR JONES: Yes. I do not know the answer to this. Although the Inspector technically quashed the enforcement notice, in the light of your Lordship's judgment that quashing --[20]MR JUSTICE SULLIVAN: Is quashed. So there is an appeal against the enforcement notice that is, if you like, revived in front of the Secretary of State and the Secretary of State will have to consider it again.[21]MR JONES: Yes. I am grateful to your Lordship. I have an application for our costs. (Handed). Although it was emailed to the Treasury Solicitor late yesterday, they have not had it the full day. We got, I think, also from the Treasury yesterday afternoon their schedule of costs. Our total costs are just over £10,000.

MR JUSTICE SULLIVAN: How much have we saved by not having a full day?

[23]MR JONES: I am not on a hourly rate.

MR JUSTICE SULLIVAN: No, but some of the solicitors will be.

[25]MR JONES: I see. It was only half a day. We have only put in for half a day. Obviously there is a technical thing with the additional filing of pleadings. Although they are basically the same, one had to jiggle about.

MR JUSTICE SULLIVAN: This is for both of them anyway, is it not?

[27]MR JONES: It is for everything, yes. It does need to be adjusted. My solicitor says she has put down for five hours. Mine is only for half a day. I think for my solicitor's attendance at the hearing we put five hours. We did have to meet to have a conference before which we would not normally have. Not much turns on this. Her attendance at court is two and a half hours but there is an additional hour. I will leave it to your Lordship. We had a conference as I had to take instructions on a witness statement that was filed yesterday.[28]MR JUSTICE SULLIVAN: If we knock off an hour that will bring it down to about £10,000. That is what you are saying.[29]MR JONES: That is what we are saying. Just to put it into context, the Treasury Solicitor's costs are £5,324.

MR JUSTICE SULLIVAN: Shall we see what Mr Litton says about the principle and the detail.

[31]MR LITTON: My Lord, I cannot resist the principle. As far as the detail is concerned, my Lord, I would submit that the attendances on counsel, which come to 15 and a half hours, seems excessively high for what, at the end of the day, is a short point. I appreciate that my learned friend says it covers both the 289 and the 288, but he also accepts that they are essentially the same.

MR JUSTICE SULLIVAN: Yes.

[33]MR LITTON: My Lord, I do submit that there are too many hours allowed for in terms of attendances on counsel. My instructions are that attendance on opponents are put at two and a half hours. I think we had as the equivalent 1.3 hours, so there is obviously a discrepancy between the parties unless they were not talking to each other.

MR JUSTICE SULLIVAN: Yes.

[35]MR LITTON: Lastly, my Lord, again there does seem to be an inordinate number of hours spent on documents. Work done on documents comes in total to 12 and a half hours for a remarkably slim bundle. So I do not quibble with the hourly rate but I do take issue, my Lord, with the amount of time that has been spent primarily in relation to attendances on counsel and obviously work done on documents. The only thing I would say is that if one is going to make a comparison with the Treasury Solicitor's statement of costs, then one would need to make an adjustment to their bottom line figure of £5,324 because five hours is allowed for attendance at the hearing.

MR JUSTICE SULLIVAN: You would knock yours down to about £5,000.

[37]MR LITTON: My Lord, if everything else is treated as equal, it is half of what the claimants are seeking.[38]MR JUSTICE SULLIVAN: Yes. I think in this case the claimants did prepare the bundle.[39]MR JONES: My Lord, it is not just this one slim trial bundle. The problem with this procedure, we had to serve the 289 and we had to serve them on all the parties with an interest before we lodged with the court, so that had to be done and organised by my solicitor. Then we had to file a skeleton argument because it was an appeal within two weeks. We then had to file another set of proceedings and serve it on the other parties for the 288 and getting those documents.[40]Can I assist with the attendance on counsel, the number of email correspondences. I was keen to know, obviously, what had happened at the site visit. Our difficulty was that the officer who had conducted the site visit was no longer with the authority and therefore the solicitor had to, by way of correspondence, obtain information and then convey it back to me. It was a lengthier process than it would ordinarily have been. That is the explanation. I cannot offer an explanation as to the different recollections of the period of time.[41]MR JUSTICE SULLIVAN: Inevitably, this process of having a sort of double barrelled attack under 289 and 288 on essentially the same point, for procedural reasons, is bound to slightly push up the costs, really in a sense unnecessarily but you have to do it as a claimant to protect yourself.[42]MR JONES: My Lord, we have to do it and some of the additional costs and attendance on counsel is -- with all due respect to my instructing solicitor -- because the local authority solicitor is experienced in planning, the intricacies of challenging 289 and 288, we have to go also for 288 as well. In the logistics of them, they are very short time limits as well. It is 28 days. It is extendable, but no-one wants to make an application to extend time. Do or die, a six week time limit for 288. It is difficult to say, but filing all these things and getting them all together does take quite a lot of time. We had the added complication that the officer -- who is now back with the authority but only within the last couple of days -- had gone to another authority.[43]Those are my instructions from my instructing solicitors as to why their attendance was longer and there was more exchange of emails with me than there ordinarily would have been.[44]MR JUSTICE SULLIVAN: Thank you very much. I am going to trim the bill very slightly to £9,500. I summarily assess the costs in that sum. The first defendant is to pay the claimant's costs of both cases, summarily assessed in the sum of £9,500 for both cases.[45]MR LITTON: Just one other matter. I have no instructions in relation to permission to appeal but, just to preserve the Secretary of State's position on that, it seems to me that because the 289, in any event, would require permission from the Court of Appeal, it would not obviously be appropriate to make any application to you. But because it is appropriate to make that application to the Court of Appeal, it does not seem, in my submission, terribly sensible to make a 288 application for permission to appeal to your Lordship. Would your Lordship give us 14 days from the date that we get an official transcript to make the application, if so advised, to the Court of Appeal for both applications?

MR JUSTICE SULLIVAN: That must be, I would have thought, sensible.

[47]MR JONES: My Lord, I have no objections to that.[48]MR LITTON: I am grateful, my Lord.

MR JUSTICE SULLIVAN: Thank you both very much.

Cited in 1 later judgment