Sumner, R (on the application of) v Secretary of State for Communities & Local Government [2010] EWHC 372 (Admin)

Case No CO/7604/2008[2010] EWHC 372 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 11th February 2010
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF SUMNERClaimantv
Between
THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
MR P STINCHCOMBE (instructed by HAROLD BENJAMIN) appeared for ClaimantMR A SHARLAND (instructed by TREASURY SOLICITORS) appeared for DefendantMR A BOOTH appeared for interested party (instructed by WYCOMBE DISTRICT COUNCIL)
J U D G M E N T
[1]MR JUSTICE COLLINS: This is an appeal against a decision of an inspector given on 17 July 2008 in respect of an enforcement notice against the change of use of buildings at Southside Farm, Wooburn Manor. The change of use was to a use for vehicle repairs. It is not in fact necessary for the purposes of determining this appeal to go into any detail to the facts. Suffice it to say as follows: the enforcement notice also alleged a breach in respect of the construction of the building, but the inspector decided as a matter of fact that the building was immune from enforcement. The building in question contained three separate units, which are described as units 1, 2 and 3. It is not entirely clear from the findings of fact precisely what was the purpose of the construction of these units from the outset, certainly one of them, unit three, it was accepted, was constructed for the purpose of vehicle repairs. There is an issue, as I understand it, in respect of the other two.[2]The inspector on his approach to the matter did not find it necessary to go into the details, and Mr Stinchcombe makes the point if I am in favour of his argument and am persuaded that the decision cannot stand in this respect it will have to go back for specific finding of fact to be made. The point is that Mr Stinchcombe's appeal depends largely upon his contention that the purpose for which the units were constructed, the intended use of them, is not only of vital importance but is in effect determinative of the appeal. The reason why it is determinative is because, he submits, that the time within which immunity can be obtained against enforcement is 4 years, and not 10 years. This means considering section 171 B of the Town and Country Planning Act 1990. It is headed 'time limits' and provides as follows:
"(1)where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed. (2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house no enforcement action may be taken after the end of the period four years beginning with the date of the breach. (3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach."
[3]It was part of the appellant's case before the inspector that the use or the activity which amounted to the change of use had been carried on for more than 10 years, but the inspector decided, as a matter of fact, that that was not the case and that therefore it fell within section 171B(3), and so he upheld the enforcement notice to that extent.[4]Mr Stinchcombe's case relies essentially, as I have said, upon the contention that the change of use or the purpose for which the building was built was the carrying out of the vehicle repair activities. Those were therefore ancillary to the building operations, and accordingly it is right, and indeed it is as a matter of law correct, that they should carry not the 10 year but the 4 year limitation upon enforcement.[5]That argument is developed in a number of respects. The land in question is in the green belt. There has in fact, as I understand it, been a subsequent application for planning permission which has been refused, and there has been no appeal in relation to that. That is to an extent by the way, save and except that Mr Stinchcombe makes the point that it would be absurd and certainly contrary to any sensible application of planning legislation if the result of the inability to carry out any use of the building other than that which would be ancillary to the lawful purposes for which the land could be used the position will be that the building has to remain empty and presumably become derelict, and that can hardly be of any advantage whether in the green belt or elsewhere, and accordingly the only sensible approach is the approach which he submits is the correct one.[6]He also prays in aid recent observations in the Court of Appeal in a case in which judgment was given on 29 January last, Welwyn Hatfield Council v the Secretary of State for Communities and Local Government and Anr, [2010] EWCA, Civ, 26, as it happens an appeal from a decision of mine.[7]As I have said, the building is in the green belt. It is not, I am afraid, entirely clear from the inspector's decision letter precisely what was or is the lawful use of the land. In paragraph 10 of the letter, under the heading 'background', he records:
"The main vehicular access to the land from White Hill, including its gate set back from the carriageway, lies towards the western end of the land. On the land to the west of the entrance are a schooling ring and other structures used by the appellant lawfully for his own horses together with three buildings used for car valeting. Immediately to the east stands a range of buildings, extending across much of the depth of the site. These include a building used by the appellant and his firm as a builder's yard with ancillary office together with a U shaped range of stables, all lawful. A little to the rear of this range of structures and beyond a garden of domestic character lies an open area with the benefit of lawful development certificate granted in 2000 under s.191 of the 1990 Act (as amended) for the storage of motor vehicles ('the LDC land')."
Paragraph 11:
"To the south of the aforementioned range of structures, close to, but separated from the southern boundary of the land by a circulation roadway, stands a further building, termed building 'B' to which part of the allegation in the notice, now effectively withdrawn, had been directed; it is used by a firm for storage purposes unconnected with any other activity on the land."
[8]Paragraph 12:
"The first and second limbs of allegation in the notice ...are directed entirely to the L shaped building A which stands to the east of the aforementioned range of structures and south of the LDC land. Building A comprises four constituent 'parts'..."
[9]And he then goes on to identify the three units in that building, that is the building, as I have said, to which the notice under appeal relates.[10]In paragraph 53, when the inspector was dealing specifically with the issue of the material change of use of the building in question, he refers to evidence about repairs to vehicles and when they were carried out. He says:
"Those vehicles were kept in pursuit of the lawful primary uses of Southside Farm at that time for agriculture, for the keeping of the appellant's own horses and as a builder's yard with ancillary office. There is no evidence that Mr Rolfe repaired vehicles at the appeal site other than those used by the present appellant in connection with the lawful uses of Southside Farm. Thus, such repairs to vehicles as carried out in the Old Unit 1 or within its curtilage, would have been incidental to this primary mixed use and would not have amounted to a primary use in its own right or a breach of planning control."
[11]Thus it seems that at the very least there was at the relevant time certainly on the part of the land which included this building under question, agricultural, keeping of horses, and the builder's yard with ancillary office, so any use ancillary to those lawful activities would have been itself lawful. There was in addition apparently lawful use of some of the buildings for valeting of cars (not these buildings in question but other buildings on the Southside Farm site) and of course there was also what is described as the LDC land, that is to say an open area which was permitted to be used for the storage of motor vehicles.[12]It is thus clear that there were some uses permitted on the site as a whole which were not compatible with green belt policies. However, as I said it was found by the inspector that the use to which the buildings are now being put is a use which is not in accordance with any lawful use which is permitted to be carried out in the buildings and has not been carried out for a period of 10 years, although it has been carried out -- I think this is common ground -- for a period of more than 4 years. Thus if 4 year period which Mr Stinchcombe submits is the appropriate period is applicable, then the use is a lawful use.[13]In developing his submissions, Mr Stinchcombe makes the point that since the use is to be regarded as a lawful use when it is unable to be enforced against, because it has become immune through lapse of time therefore it must be approached in the same way as a planning permission would be approached. That is to say that the advantages that are gained from having a planning permission should equally apply to the use which can lawfully be carried out. He prays in aid in this regard section 191 of the Act which is the section which enables a certificate of lawfulness of existing use or development to be obtained from a planning authority. Section 191(2) provides: For the purposes of this Act uses and operations are lawful at any time if-(a) No enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and.(b) They do not constitute a contravention of any requirements of any enforcement notice then in force." Then sub-section (6) provides that:
"The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed."
I should also refer to sub-section (7) which provides that. "A certificate under this section in respect of any use shall also have effect, for the purposes of the following enactments, as if it were a grant of planning permission-"[14]There are specific provisions in three Acts referred to: Caravan Sites and Control of Development Act 1960; Control of Pollution Act 1974 and the Environment Protection Act 1990. I should say that section 191, as I have cited it, is as amended by the 1991 Act. In its original form it was rather narrower, because it did not extend to indicating that the use should be regarded as lawful for all purposes, it merely indicated that it was immune from any enforcement action, which on one view might well have amounted to much the same thing, but it was no doubt regarded as necessary and sensible by Parliament that its effect should be spelled out.[15]It is to be noted, too, that section 336 of the Act, which defines planning permission, does not include section 191. Thus it is by the definition in the Act itself not regarded as a planning permission.[16]Mr Stinchcombe, in dealing with section 191(7), focuses on the word "also", and submits that it is implicit in section 191 that it should be, if regarded as lawful for all purposes, to be equivalent to a planning permission, albeit it is not expressly stated to be a planning permission. He says that the word "also" suggests that that is the correct approach because the inclusion of the three sections of the particular Acts referred to are regarded as additional. I suppose that that is a possible construction of the word "also" but does not seem to me to the natural one, particularly in the light of the provision in section 336, which expressly does not regard a section 191 certification as being a planning permission. The word "also" could simply be a reference to its additional effect, namely an effect outside the confines of the 1990 Act itself. As it seems to me, that is the far more natural construction in the light of the exclusion of 191 from being a planning permission.[17]The importance of that lies in the provisions of section 75 of the 1990 Act, upon which Mr Stinchcombe also seeks to rely. That section so far as material provides in sub-section (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."
Sub-section (3):
"If no purpose is so specified the permission shall be construed as including permission to use the building for the purpose for which it is designed."
[18]Mr Stinchcombe submits that albeit it is not a planning permission it should be regarded as equivalent, and it would therefore be wholly consistent, and indeed inconsistent with the purpose behind the lawfulness, if it did not include permission to use the building for the purpose for which it was designed. That purpose, incidentally, does not look to the narrow architectural or functional state of the building, it is concerned with the purpose for which the building was constructed; the use which was intended.[19]So much, so much as it seems me, is clear from the approach of the Court of Appeal long ago in Wilson v West Sussex County Court [1963] 2 Queen's Bench Division 764. Thus he submits that if the intention was at all times that the buildings should be used for the purposes of vehicle repair, then once the operational development in the form of their construction is immune the use should be regarded as lawful for all purposes, even though the section 191 certificate is not actually been obtained, because it could be obtained, and therefore the purpose should also be regarded as included, whether one looks upon it as ancillary or otherwise, because that would be consistent with section 75 and that shows the purpose, as it were, behind the statutory provisions.[20]It is to be noted that section 191 deals with the effect of the existence of a certificate, and there is no certificate in this case, and equally section 75 refers to the effect of a planning permission, and there is no planning permission in this case. What Mr Stinchcombe, it seems to me, is trying to do is to write into the Act what does not exist, namely that even if do there is no certificate and even if there is no planning permission, nonetheless these are all the advantages that the Act provides if you did have a planning permission and there were a lawful use certificate.[21]He makes the point that his construction would lead to certainty, particularly where one is concerned with those who might want to purchase the land and know precisely what can and cannot be done on the land. It seems to me that there is nothing in that, because it is always possible for a lawful use certificate to be obtained and that will indicate the extent to which any use of or presence of any building on the land is lawful.[22]On the inspector's findings, assuming they are correct, the lawful use certificate could be obtained to indicate that the building itself is lawfully there, but its use would be limited to any use ancillary to a lawful use permitted, and more importantly it would not include the use for vehicle repairs, which is the use that is now being carried out. So the question of certainty does not really arise, because as I say the certificate will make clear what can and what cannot be done.[23]In any event, it seems to me Mr Stinchcombe cannot use section 191 to indicate what the true construction should be of section 171B. Section 191 merely deals with the effect of a certificate of lawful use and when it can be granted. It does nothing to indicate whether or not a particular use is lawful as far as any enforcement is concerned, and indeed if there is an enforcement notice in existence in relation to any use or indeed the existence of any building, that would preclude the grant of a certificate of lawful use covering that use or that building: see section 191(2)(b).[24]When this appeal was launched and when permission was granted, the argument was based upon the contention, as I say, that the lawfulness, or rather the immunity of the building, should carry with it the lawfulness of the intended use and the argument that such use was ancillary, alternatively that the section 191/75 approach was the appropriate approach. Insofar as the argument that finds use is ancillary is concerned, it seems to me that it is a misuse of language to regard the use for which the building was intended as a use ancillary to the construction of the building. I say that because the Act draws a distinction, and this is a distinction which one sees throughout, between operational development and change of use. Each is regarded as a separate basis for a need for planning permission. It may well be that in a given case the one can truly be said to be ancillary to the other. Examples are the placing in a building of a spiral staircase in order to facilitate use as an office. Or the placing of hard core on land in order to facilitate the use for the purpose which requires vehicles to be able to stand. That is a true example of what may be regarded as ancillary. In a case such as this, as it seems to me, there are indeed two separate concerns, that is to say the change of use and the development in the form of the operational development by a building operation.[25]Since this appeal was lodged and permission given there has been the decision of the Court of Appeal to which I have already referred in Welwyn Hatfield Councilv the Secretary of State. The facts of that case were the individual against whom enforcement action had been taken, had had permission to build a barn on his land. What he had built was what looked like a barn; it had no windows on the outside and he had lighted it through panels in the roof which no-one could see, and in fact he had always intended it should be a dwelling house, and he knew perfectly well -- because if I remember correctly it was green belt -- he would never have got planning permission for the construction of a dwelling house. He thus deceived the council and he admitted he had always intended to deceive it into granting permission for the barn. He had never intended it should be a barn; he always intended it should be a dwelling house. The question then arose as to whether there had been a change of use of the building within the meaning of section 171B(2), because when the four years were up following the substantial completion of the operational work, the individual disclosed what he had in fact been doing and said, "you cannot do anything about it now, I am immune from enforcement because four years have passed." It was contended that as far as the operational development was concerned, that was covered by 171B(1) and as far as any change of use was concerned, that was covered by 171B(2) because it had changed to a single dwelling house.[26]Perhaps unsurprisingly there was some concern to see whether the deception should prevail. I decided that it did not fall within 171B(2) because there had never been any change of use of the building; it had always been intended to be built as and occupied as a dwelling house. The Court of Appeal decide that was wrong on the basis that there was a change of use either because the permission was for a barn and there was a change from barn to dwelling house, or there was no use until the building was occupied as a dwelling house. It may be that there was no use for a very short period, but none the less there was no use and therefore there was a change of use once it was so occupied as a dwelling house. The court felt constrained to decide in those circumstances that the deception had worked. However, in the course of argument a further point was raised and this is a point which is referred to in the first paragraph 26 of Richards LJ judgment, his being the lead judgment in the case. At paragraph 26 this was said:
"The certificate applied for by Mr Beasley related however to the use of the building not to its construction. [I should add this was not an enforcement case, it was a application for a certificate under section 191] For the council Mr Beglin submitted that section 171B(1) is simply irrelevant to the question of use. For the Secretary of State, Miss Davies countered with the contention that if the construction of a building has become immune from enforcement by virtue of section 171B(1) the use of the building for the purpose for which it was designed must also be lawful, otherwise the legislation would make no sense. I see some attraction in that connection, but I am concerned that the relationship between operational development and use was not fully explored before us and I prefer not to express a conclusion on the issue, because for reasons to which I now turn I take the view section 171B(2) provides immunity for the use of the building in this case and no decision is therefore needed for the outstanding issue under sub-section 1."
[27]I should say the Secretary of State was, for reasons that seemed good to him, coming down in favour of Mr Beasley and submitting that the deception worked. The language used by Miss Davies, use of the building for the purposes for which it was designed must also be lawful, Mr Stinchcombe points out reflects the language used in section 75(3) and he suggests that this may be what moved Miss Davies to say what she did. Pill LJ in paragraph 49 says this:
"I too see force in the contention of Miss Davies recited by Richards LJ at paragraph 26. However a distinction is maintained in section 171B between building and other operations on the one hand and a change of use on the other. That is also maintained in the interpretation section of the 1990 Act, section 336(1), in which it is stated that use in relation to land does not include the use of the land for the carrying out of any building or other operations on it. I would leave over the argument that whilst enforcement proceedings cannot be taken against the dwelling house as a building because of section 117B(1), its use as a dwelling house can be prevented. I agree with Richards LJ it is not necessary to decide the point."
[28]It is, however, necessary for me to decide the point. I am afraid I am, unlike the two Lord Justices, not at all persuaded that it has any merit. It seems to me that it is clear from S.171B that a distinction is drawn and intended to be drawn between change of use and operational development that is entirely consistent with the approach in the Act. The suggestion that the legislation would make no sense unless the use of the building for the purpose for which it was designed also had to be lawful flies in the face of the language of 171B and the whole approach of the Act recognising the distinction between change of use and operational development.[29]If an individual chooses to erect a building without planning permission intended to be used for a purpose which has no planning permission then as it seems to me inevitably he runs the risk that he will have to remove the building if enforcement action is taken in time against it, or cease the use equally if enforcement action is taken in time against that use. He cannot be placed in the same position as if he had obtained planning permission; he has not, he has chosen deliberately to flout the law, whether or not he has deceived the council in any way. As it seems me there is no good reason why he should reap any benefit from that. Mr Stinchcombe says that it becomes ridiculous and contrary to any sensible planning approach if a building has to remain unused. There is use to which these buildings can be put, ancillary as I have said to any lawful use of the land. Equally, and this will depend upon the circumstances of an individual case, the view may well be taken that if the council which could have enforced against the building did not do so in time it may be that it would be inappropriate for planning permission, maybe subject to conditions, maybe limiting uses, should be granted, even though it might not ordinarily be appropriate to grant planning permission because for example of general green belt policies. Such policies are always open to permission being granted in exceptional circumstances. All will depend upon the facts of an individual case, and it may well be, as I have said, that the view can be taken that it is better to grant some sort of planning permission rather than have the situation of an empty building which is itself undesirable. Certainly it would not be appropriate to try to achieve the removal of the building, which could have been enforced against within the four year period but has not been, by any refusal to grant a reasonable planning permission thereafter. As I say, again that will entirely depend on the facts of an individual case. As it happens in this case there was no appeal on ground a. Mr Stinchcombe points out ground a is rather more expensive than the other grounds, and that is a matter of choice for the individual. Albeit it is fair to say that when an application for planning permission was eventually made it was turned down.[30]Having explored the relationship between operational development and use I take the view, as I have said, that the contention made by Miss Davies is not one which is supportable. I should say that Mr Booth, who was present at the hearing on behalf of Mr Beasley, the gentleman in question, tells me that Miss Davies was under some pressure from the court and this suggestion came in the course of a response to that pressure, and it certainly was not raised before me. It was not in the skeleton argument and played no part in any hearing before the Court of Appeal. Perhaps that is in a sense immaterial, but it is either a good point or a bad point, and the circumstances in which it was produced do not indicate one way or the other as far as that is concerned. However it is of course right, as Mr Stinchcombe points out, that it did appear to the Court of Appeal that it was a point that could not simply be rejected and which might have, and I emphasise might have, some validity. In my judgment, as I have indicated, it seems to me that it does not.[31]There has also been reference to a decision of Sullivan J in R(Fairstate Limited) v the Secretary of State [2004] EWHC 1807 (Admin), I think it is also in the JPL somewhere but I have not been provided with that report. It matters not. With respect, it seems to me that Fairstate has no material relevance to the issue I have to decide in this case and it is not in those circumstances necessary for me it go into any matters that come out of that case. It certainly does not help, and Mr Stinchcombe accepted in the end that it does not help on the point I have to decide in the circumstances of this case. For those reasons, and in those circumstances, I take the view that this appeal must fail and I so order.[32]MR SHARLAND: My Lord thank you very much for that judgment. In light of it I would ask for my costs. I don't believe you have the cost schedule from either myself or the appellant.[33]MR JUSTICE COLLINS: I do not. Mr Stinchcombe you cannot resist the Secretary of State's application.[34]MR STINCHCOMBE: No, my Lord.

MR JUSTICE COLLINS: Have you seen the costs schedule?

[36]MR STINCHCOMBE: I have not seen it. I don't anticipate--

MR JUSTICE COLLINS: I am sorry to hear that, he is usually fairly reasonable.

[38]MR STINCHCOMBE: Yes he is, my Lord.[39]MR SHARLAND: A veritable bargain in this case. We are claiming £9,168. This compares to the appellant's claim costs of £26,000, it is approximately a third. I suggest it is eminently reasonable, and we ask for the full amount.

MR JUSTICE COLLINS: I don't know if you want to take instructions?

[41]MR STINCHCOMBE: No my Lord, I don't resist my learned friend's application for costs.

MR JUSTICE COLLINS: Are you making an application for costs?

[43]MR BOOTH: I don't think it was a situation where your Lordship would be minded --

MR JUSTICE COLLINS: I really think you cannot get around Bolton on this one.

[45]MR BOOTH: I understand that entirely, and for those reasons I make no applications.[46]MR JUSTICE COLLINS: Then Mr Stinchcombe the appeal is dismissed with costs of £9,168 payable to the Secretary of State.[47]MR STINCHCOMBE: Yes, my Lord. You will be unsurprised to find me on my feet making the rather difficult application when I seek--

MR JUSTICE COLLINS: It is never difficult.

[49]MR STINCHCOMBE: When I seek your permission to argue.[50]MR JUSTICE COLLINS: You know me well enough Mr Stinchcombe and I am perfectly able to recognise I may be wrong.[51]MR STINCHCOMBE: Yes, my Lord, I do seek permission to go to the Court of Appeal, I say it is seriously arguable.[52]MR JUSTICE COLLINS: You want to say that you might get further with either the Richards LJ or Pill LJ.[53]MR STINCHCOMBE: Indeed, my Lord, and indeed in my submission it must be arguable if the Secretary of State have argued both points in the course of the month, so I do ask for permission to go to the Court of Appeal.[54]MR SHARLAND: My Lord, you do not have jurisdiction to consider this, it is a second appeal.[55]MR JUSTICE COLLINS: It is a second appeal, of course it is. I had forgotten that. Bad argument, you will have to apply to the Court of Appeal.