Colver, R (on the application of) v Secretary of State for Communities and Local Government & Anor [2008] EWHC 2500 (Admin)

Case No CO/8131/2006[2008] EWHC 2500 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 9th October 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF COLVERClaimantv
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendantROCHFORD DISTRICT COUNCILDefendant
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 M Lewis (instructed by Sharpe Pritchard) appeared for ClaimantMr J Maurici (instructed by the Treasury Solicitor) appeared for First Defendant for The Second Defendant was not represented and did not attend
J U D G M E N T

MR JUSTICE SULLIVAN: Introduction

[2]This is an appeal under section 289 of the Town and Country Planning Act 1990 ("the 1990 Act") against a decision of an inspector appointed by the first respondent to determine the appellant's appeal against two enforcement notices (Enforcement Notice A and Enforcement Notice B) issued by the second respondent on 14th November 2005.[3]The breach of planning control alleged in Enforcement Notice A was the change of use of land known as "The Hut", Burlington Gardens, Hullbridge, Hockley, Essex ("the land") for the stationing of a caravan for residential and/or storage uses. The notice required the removal of the caravan and the cessation of the use of any part of the land for the siting of caravans. The Inspector dismissed the appellant's appeals against both enforcement notices and upheld the notices with corrections.[4]There is no challenge to her decision in respect of Enforcement Notice B. In respect of Enforcement Notice A, the Inspector, with the agreement of the appellant and the second respondent, corrected the notice so that the breach of planning control alleged:
"Change of use from open leisure purposes to a mixed use for open leisure purposes and for the stationing of a caravan for purposes of human habitation..."
As corrected, the enforcement notice required the appellant to:
"Cease using the land for the stationing of a caravan for purposes of human habitation, remove the caravan and all items brought onto the land in association with that use..."
The decision letter[5]In paragraph 7 of the decision letter the Inspector said:
"The appeal site was purchased by Mrs Meredith in about 1930 and was used as a leisure plot for her family at weekends and during holiday periods. Initially, the family camped on the site storing equipment in a shed. There is no dispute that the site had a lawful use for open leisure purposes since that was the existing use on the Appointed Day. In the 1960s the family began to bring a caravan onto the site for overnight stays and from sometime in the 1970s this was left permanently on the site for that purpose. At this point in time, the Council says that an additional use was introduced; that being the use of the site for the storage of a caravan. The Appellant on the other hand considers that additional use to be the stationing of a caravan for human habitation."
[6]In paragraph 8 of the decision letter the Inspector rejected the second respondent's argument that a storage use had been introduced in the 1970s and concluded that, as a matter of fact and degree:
"... a material change of use occurred in the 1970s, when the caravan became permanently stationed on the land, from use of the site for open leisure purposes to a mixed use for open leisure purposes and for the stationing of a caravan for human habitation."
[7]It was common ground at the inquiry that the remains of the original caravan were removed from the land in 2001, when it was replaced by another caravan, which was used for human habitation.[8]In paragraphs 13-19 of the decision letter the Inspector considered what use (if any) was made of the land after the 1970s, when the mixed use for open leisure purposes and for the stationing of a caravan for human habitation had begun, and 2001, when the land was, once again, used for that mixed use. The Inspector considered all of the evidence on this topic but concluded that some of the evidence, both oral and written, could not be relied upon because it was confused and contradictory and/or insufficiently precise. She placed considerable weight on a sworn declaration dated 20th August 1992 by Raymond Meredith, Mrs Meredith's son:
"13... as it is the statement of a member of the family who actively used the site and it was prepared contemporaneously with the relevant provisions of the Act coming into force. In that statement, Mr Meredith says 'There is now a shell of a caravan on the site.' The Appellant argues that such a description does not necessarily mean that the caravan was incapable of occupation, but the world 'shell' conjures up a specific image of an empty case and I can see no reason why Mr Meredith would have used such a description had the caravan remained fitted out and capable of human habitation. In that same statement he goes on to say that he visits the site every 3 to 6 months and allows a neighbour to graze animals on the land in return for acting as a caretaker for the property. He does not say that he stayed overnight in the caravan on any of those visits and indeed it seems highly unlikely that he would have, given his description of it as a shell. His permanent address in Dagenham was near enough to enable him to travel comfortably to and from the site in a single day. The fact that he was at that time relying on a neighbour to act as a caretaker suggests that these occasional visits were simply by way of a periodic check on the property."
[9]The Inspector returned to Mr Meredith's statement in paragraph 18 of the decision letter:
"To my mind the most telling evidence in this matter is that provided in the statement of Mr Meredith dated 20 August 1992 which gives a strong indication that the use of the site for the stationing of a caravan for human habitation had ceased for some time with only the shell of a caravan remaining. That being the case, the unauthorised use having ceased and there being no activity on the land against which the local planning authority could have taken enforcement action, it could not have become lawful when the provisions of the amended s191 and the new s171B of the 1990 Act came into force on 27 July 1992. The use of the site would by that time have reverted to the lawful single primary use for open leisure purposes. I have had regard to all other documentation submitted in evidence, including aerial and other photographs of the site, but find nothing to lead me to a different conclusion. The unlawful use did not resume until May 2001 and thus a later 10 year period cannot be demonstrated."
[10]In paragraph 19 the Inspector said:
"I do not agree with the Council's view that, following cessation of use for human habitation, the caravan was subsequently stored on the site. When it ceased to be occupied, the structure appears simply to have been left there and that, to my mind, is not a functioning storage use. The burden of proof in this case rests with the Appellant and the evidence that I have indicates, on the balance of probability, that on the date when the notice was issued it was not too late to take enforcement action in respect of the breach of planning control alleged, that is the stationing of a caravan for human habitation. The appeal on ground (d) fails."
Submissions and conclusions[11]On behalf of the appellant, Mr Lewis accepted that the Inspector was entitled to place considerable weight on Mr Meredith's statement, but he nevertheless submitted that there was no evidence on which the Inspector could properly have concluded that the "shell" of the mobile home could not still have been used for human habitation on 27th July 1992 when, following a transitional period which began on 2nd January 1992, the Planning and Compensation Act 1991 ("the 1991 Act"), which introduced a 10-year time limit for issuing enforcement notices such as Enforcement Notice A, came into effect.[12]I do not accept that submission. Although the proper inferences to be drawn from Mr Meredith's statement were a matter for the Inspector's judgment, in the light of all the evidence that she had heard and read at the inquiry, having read the statement myself, I endorse her conclusion that Mr Meredith would not have used the word "shell" if the caravan was still being used, or was capable of use, for human habitation in 1992. Moreover, Mr Meredith's 1992 statement and his further statement sworn on 17th March 2006, after Enforcement Notice A had been issued, are significant, not so much for what they say, as for what they do not say. As Sherlock Holmes observed to Dr Watson, "The dog did nothing in the night-time. That was the curious incident".[13]In neither of his statements does Mr Meredith say either that he, or indeed anyone else, stayed overnight in the caravan, or that it was still capable of being used for human habitation. He says in his second statement that there was no intention to "abandon" the use of the caravan, but that is not the question. The question for the Inspector was whether the unlawful use of the caravan for human habitation had ceased before 1992, not whether there was an intention to abandon that use. Had the caravan been used for human habitation, or been capable of such use, despite the fact that by 1992 it was a shell, Mr Meredith would surely have said so in his further statement in 2006, even if he had omitted to do so, by inadvertence, in his statement made in 1992.[14]The Inspector's conclusion that the use of the land for the stationing of a caravan for human habitation had "ceased for some time" by August 1992, so that there was no activity on the land against which enforcement action could have been taken on 27th July 1992, is fatal to the appeal against Enforcement Notice A on ground (d) in section 174(2) of the 1990 Act. Since the use of the land for stationing a caravan for human habitation had begun after the end of 1963, there was no "accrued planning-use right" which could only be lost in one of the three ways (by abandonment, by the formation of a new planning unit, or by way of a material change of use) that are set out in Panton v the Secretary of State for Environment, Transport and the Regions [1991] 1 PLR 92: see per Mr Christopher Lockhart-Mummery QC sitting as a Deputy Judge of the High Court at page 100.[15]The Inspector correctly distinguished Panton on the basis that the present case was not a case of an unlawful (but "immune") use becoming"dormant", but was instead an unlawful use of the site which had begun in the 1970s, and had not become immune from enforcement action before it had ceased, some time before 1992 (see paragraph 10 of the decision letter). If an unlawful (and not immune) use has ceased, there is nothing left to enforce against: see Secretary of State for the Environment v Thurrock Borough Council [2002] JPL 1278 per Schiemann LJ at paragraph 28, and the further observations of Chadwick LJ at paragraphs 60 and 62, which were subsequently endorsed by Keene LJ in Swale Borough Council v First Secretary of State and Lee [2006] JPL 886 at paragraphs 26 and 27.[16]Cessation of an unlawful (and not "immune") use is not to be equated with "abandonment" of an unlawful but immune use: ibid. It will be very much a question of fact and degree whether a particular unlawful use has ceased, or is merely, for want of a better word, in abeyance: see the examples given in paragraph 28 of Schiemann LJ's judgment in the Thurrock case.[17]In the present case, there can be no doubt that the Inspector was entitled to conclude that the unlawful use of the caravan for human habitation had ceased at some time before it had become a shell in 1992. This was not a temporary interruption of the use of the caravan for human habitation. The caravan that was on the site from the mid-1970s was, on the evidence, never used for any purpose after it had become a shell. Insofar as the land, including the shell of the caravan, was used at all, it was used only for open leisure purposes for about a decade, if not longer, until 2001, when the shell was removed and a new caravan was placed on the site, which was then used for human habitation. There was therefore, in 2001, a material change of use to the mixed use alleged in the enforcement notice, as corrected by the Inspector, and that change of use occurred less than 10 years before Enforcement Notice A was issued, on 14th November 2005. It follows that the Inspector's decision to dismiss the appeal on ground (d) was correct.[18]Mr Lewis submitted that the Inspector failed to have proper regard to the appellant's "fall-back" position when considering the appellant's appeal on grounds (a) and (f) in section 174(2) of the 1990 Act. I have set out above paragraph 19 of the decision letter in which the Inspector considered the argument advanced on behalf of the appellant at the inquiry that if the second respondent's approach was correct, following cessation of the use for human habitation, the land had been used for the storage of the caravan since prior to 1992. The Inspector rejected this submission on the basis that after human habitation had ceased the land was not used for storage of the caravan; it was simply left there, gradually becoming more derelict until it became no more than a shell: see paragraphs 19 and 33 of the decision letter.[19]In paragraph 8 of the decision letter, when dealing with the situation in the 1970s, the Inspector said that:
"A 'storage' use suggests a degree of activity, in that an item not immediately needed is kept in a convenient place until it is required."
Whether the land was being used for the storage of the caravan following the cessation of its use for human habitation was very much a question of fact and degree for the Inspector. She was provided with photographs of the site in January 2001 which show that, in her words, the land had become "very overgrown so that the structures [including the caravan] were not a prominent feature of the site": see paragraph 35.[20]Looking at the photographs, the shell of the caravan is almost lost amongst the dense vegetation. In these circumstances it would be wholly artificial to describe the use of the land as "caravan storage". The land, including the caravan, was effectively disused for many years, becoming more and more overgrown and derelict, but the Inspector rightly concluded that this did not extinguish the lawful use of the land for open leisure purposes. Had the second respondent wished to take action to remedy the dereliction, it could well have done so under section 215 of the 1990 Act, but in ordinary language, the land was not being used for the storage of the caravan.[21]That leaves the possibility, which was not canvassed at the inquiry, that in accordance with the decisions of Forbes J in Restormel Borough Council v Secretary of State for the Environment [1982] JPL 785 and the Court of Appeal in Wealden District Council v Secretary of State for the Environment [1988] JPL 268, there was nothing to prevent the appellant from stationing a caravan on the land, provided its use was incidental or ancillary to the lawful use of the land for open leisure purposes: for example, to store barbecue equipment, deckchairs, lawnmower equipment et cetera. The Inspector did not consider this "fall-back" argument because it was not put to her at the inquiry.[22]The ground (f) appeal was advanced, not on the basis that the requirement to remove the caravan that was on the site in 2005 was excessive, because a caravan could lawfully be stationed on the land, provided it was used, and used only, in connection with the open leisure use of the land, rather it was argued that there was no need to remove the caravan that was being used for human habitation because its impact on the green belt could be sufficiently mitigated by an appropriate landscaping or planting scheme. The Inspector rejected that argument in paragraph 38 of the decision letter and it is not suggested that she erred in so doing. Whether the large caravan that was on site in 2005, and I understand is still on the land, could lawfully be stationed on the land for purposes incidental or ancillary to its lawful use for open leisure purposes, is a question for the second respondent and, on appeal, the first respondent, and not this court.[23]That leaves the appeal on ground (a). I accept Mr Maurici's submission on behalf of the first respondent that the "Restormel" fall-back argument, which, as I have said, was not put to the Inspector, could not, in any event, have made any difference to the outcome of the ground (a) appeal in view of the Inspector's conclusions on the planning merits. In paragraph 29 of the decision letter, the Inspector said:
"There is no dispute that both the siting of a caravan for human habitation and associated operational development comprising the hardstanding and timber building are inappropriate in the Green Belt. They are thus, by definition, harmful."
Even though a caravan could be stationed on the land for purposes incidental or ancillary to its use for open leisure purposes, the use of that caravan for human habitation introducing a residential use into the green belt, would be inappropriate development and, by definition, harmful to the green belt.[24]More significantly, the Inspector was concerned not simply about the loss of openness of the land, but also about the change in its character as a result of the use of the caravan for human habitation. Thus in paragraph 31 she said:
"The stationing of a caravan on this site for human habitation results in a loss of openness anda change in the nature of the site from one which contributes to the predominant rural undeveloped character of the area to one with a more urban nature resulting from the presence of the mobile home and the domestication of the site arising from the residential use, including the extensive formal hardstanding to the front and the large timber building to the rear."
The Inspector acknowledged that "the remains of two caravans [one of which was the 'shell' referred to earlier in the decision letter] were left on site following cessation of use by the Meredith family", but concluded:
"35... their being left there provides no justification for the siting of a caravan for active use for human habitation which has resulted in a material change to the character of the site."
[25]In the light of these conclusions, the appellant's "fall-back" submission now advanced by Mr Lewis on the basis of the Restormel and Wealden cases could not have led the Inspector to reach a different conclusion on the ground (a) appeal. Similar observations would apply to the appellant's fall-back argument based on the use of the land for the "storage" of a caravan, even if the Inspector's conclusion that the land was not used for that purpose after the use for human habitation had ceased had been erroneous. It follows that the appeal must be dismissed. Postscript[26]It will be noted that, unlike Enforcement Notice A as originally issued by the second respondent, which prohibited the use of any part of the land "for the siting of caravans", the enforcement notice as corrected by the Inspector requires, in addition to the removal of the caravan that is presently on the land, the cessation of the use of the land for the stationing of a caravan for the purposes of human habitation. As corrected, the enforcement notice says nothing as to whether a caravan might lawfully be stationed on the land, provided it is used, and used only, for purposes incidental or ancillary to the lawful use of the land for open leisure purposes. That is a matter which will have to be resolved between the appellant and second respondent, and, if necessary, by the first respondent on appeal, if an appropriate application is made.[27]MR MAURICI: My Lord, in addition to dismissing the appeal, I seek an order for the Secretary of State's costs. They are agreed. Can I just give you a figure?

MR JUSTICE SULLIVAN: Yes, of course.

[29]MR MAURICI: It is £5,802.

MR JUSTICE SULLIVAN: Agreed, Mr Lewis?

[31]MR LEWIS: That is agreed, my Lord.[32]MR JUSTICE SULLIVAN: So the appeal is dismissed, the appellant is to pay the first respondent's costs summarily assessed in the agreed sum of £5,802. Any more for any more?[33]MR LEWIS: I am obliged, my Lord. I cannot seek your Lordship's permission to appeal, it being a second appeal, but just to safeguard the position, and again I give no indication as to whether in due course the appellant would intend to appeal but your Lordship has been good enough to sit early so the appellant can get away for a sorry engagement.[34]MR JUSTICE SULLIVAN: Yes. I hope it is early enough.[35]MR LEWIS: I am obliged. I think it is, and he is very grateful for that. So rather than take up time unnecessarily, my Lord, simply in case he did wish to seek permission to appeal in due course, could we ask for an extension of time for seeking permission to appeal of 21 days from the receipt of your Lordship's approved transcript?

MR JUSTICE SULLIVAN: I always think that is sensible, Mr Maurici, in those cases.

[37]MR MAURICI: Yes.[38]MR JUSTICE SULLIVAN: The answer is yes, you have that. It must be sensible -- you can consider your position in the light of the transcript -- but there is no need to expedite the transcript. You will get it in the normal course.[39]MR LEWIS: Indeed, my Lord. I am very much obliged.

MR JUSTICE SULLIVAN: Thank you.

Cited in 2 later judgments