England and Wales High Court (Administrative Court) Decisions

1. THE DEPUTY JUDGE: The Applicant owns a bungalow in the fen country in South Holland. He bought it in 1990 when it was in extremely poor condition because it had been vandalised in 1986 by the removal of slates from the roof. He always wished to live here and applied for permission for a replacement dwelling. He was refused. He appealed to the Secretary of State for the Environment. An Inspector held a hearing and refused permission. The Applicant now applies to this court to quash the decision.

2. This case is concerned with the law as to the abandonment of the use of a dwelling. The point arises because the Second Respondent, the South Holland District Council, had in the past accepted that an exception could be made to structure plan policy prohibiting the construction of new dwellings in the countryside if the new dwelling was a replacement of an existing dwelling and residential use of the site had not been abandoned. The Council judge these cases by reference to four criteria, and these criteria are drawn from the case of The Trustees of the Castell-y-Mynach Estate v. Secretary of State for Wales and Taff Ely Borough Council [1985] JPL 40, being a decision of Nolan J (as he then was). At the beginning of his judgment he said that at the inquiry the applicant had begun by making the submission:

3. It was common ground, as appeared from the authorities, that these were the four principal factors to be taken into account in a case of this sort. It is to be noted that one does not have to satisfy all the criteria; they are simply factors to be considered in reaching an overall conclusion as to whether there has been an abandonment of a use.

4. The Inspector, in her decision letter, said about these four criteria:

5. The reference in paragraph 8 to the contradictory evidence of the previous owner is a reference to two statements by Mr Giddings from which I shall read a little in order to illustrate the matter better. The first was written down by an enforcement officer in 1992:

6. In the second statement he said, amongst other things:

7. In his appeal statement, Mr Hughes said amongst other things:

8. Mr Boyle, who appears on behalf of the Applicant in this court, submits, in the light of submissions set out earlier:

9. There can be no ambiguity about the Inspector's conclusion on three out of the four factors. Mr Boyle's submission concerning factor (i) (roman numerals were used in this case rather than letters). It is clear to me from the end of paragraph 7 of the decision letter that the Inspector found that by 1991 the bungalow was uninhabitable and in my view that was a sufficient finding to dispose of what is required by factor (i). However, I should observe that an uninhabitable dwelling can often be rendered habitable. As to factor (ii), the Inspector held clearly in paragraph 8 that the bungalow had not been used since 1963. That involved non-use of 27 years by 1990, a very long period, but not uncommon in rural and remote areas, as remarked in Castell-y-Mynach. The conclusion on factor (iii) was favourable to the Applicant.

10. The conclusion on factor (iv) was also favourable to the Applicant in that the Inspector held at the end of paragraph 8 that it has always been his intention to live in the property. However she made no finding as to the intentions of his predecessor, Mr Giddings, nor did she consider the "evidence regarding (that) owners' intentions", that is despite the fact that if there was an abandonment of the use as a dwelling it must have occurred during his ownership, not Mr Hughes' ownership. Miss Robinson, who appeared for the Secretary of State, told me that she accepted that there was no evidence that Mr Giddings intended to abandon the use and that his intention was residential use.

11. She submitted that, as to the fourth criteria, the owner's intentions, the Inspector considered that having regard to the Applicant's intention to live in the building on the appeal site this criterion was satisfied (paragraph 8 of the decision letter). Accordingly, it would have made no difference if the Inspector had considered the intention of the previous owner up to 1990 because the Inspector had found in favour of the Applicant on this point. As Castell-y-Mynach makes clear even "strong evidence" of the owner's intention not to abandon the use is not determinative, see Castell-y-Mynach at page 41, right-hand column, to which I shall refer in a moment. She elaborated this submission by means of a great deal of helpful oral submission to which, in the interests of getting to the heart of the matter straightaway, I shall not set out

12. Both counsel cited passages from Hartley v. Minister of Housing and Local Government [1970] 1 QB 413 which is the leading authority in this field. That case concerned a site, part of which was used as a petrol filling station and part for the display and sale of cars. The latter use was discontinued for four years. The Minister held that it was abandoned. He said in his decision letter, "the intention being to cease it indefinitely". Lord Denning MR said at page 420E:

13. Widgery LJ said at page 421F:

14. Cross LJ agreed with both judgments.

15. Miss Robinson commented that Widgery LJ did not say that if the owner does not intend to abandon, then there cannot be abandonment. That, however, was because it was not a case with which he was dealing; he was dealing with a finding that the intention was to cease the use indefinitely.

16. Miss Robinson founded principally upon Castell-y-Mynach which is the only helpful case concerning residential use. I have already read the opening paragraph of Nolan J's judgment as reported.

17. Later, Nolan J said:

18. The concluding paragraph of this part of Nolan J's judgment was as follows:

19. Miss Robinson deduced from this judgment that if there is no intention to abandon then, nevertheless, the use may be abandoned. She submitted that factor (iv) is not necessarily determinative of a case. However, in my judgment, she misinterprets Nolan J's words. It has to be remembered at all times that the object of these considerations is to determine whether there has been an abandonment of use and that the word "abandonment" carries with it "in grennio" the notion of "intention", as recognised by Widgery LJ. Incidentally, I do not find it helpful to consider whether the necessary intention is objective or subjective, though I fully accept that the ascertainment of the intention is to be made objectively by the reasonable man as spoken of by Lord Denning. The four factors listed by Nolan J at the beginning of his judgment are all factors which may assist in any given case in determining whether there has been an abandonment, which, I repeat, carries with it an intention to abandon or, better, as put by Widgery LJ, "no intention to resume".

20. However, in a given case, and Castell-y-Mynach was such a case, an owner may express an intention not to abandon, or, in other words, an intention to resume, but that expression may, on the evidence, be held not to be the true position. I draw attention to Mr Roderick's submission as to "the owners' express intentions" and to Nolan J's "expressed intention" in the last paragraph which I read. Further, it may not be the true position even though the expressed may be made "genuinely". It may be perfectly manifest from the evidence available in connection with the other factors that an owner had no such intention. I emphasise that factor (iv) is

21. Nolan J did not hold that if it is held that the owner did not intend to abandon the use, but to resume it, then one may go on to hold overall that there was an abandonment by virtue of the very poor condition of the building or the very long period of non-use. Indeed, in my judgment, so to hold would be tautologous because, as I have said, the very word "abandon" involves cessation with no intention to resume. The distinction is that the owner may say, as in Castell-y-Mynach, that he was not intending to abandon the use, but nevertheless the other evidence shows that he was intending to abandon it, whereas in the present case Miss Robinson concedes, as I have said, that there was no evidence that Mr Giddings intended to abandon the use and that his intention was residential use, and of course the finding as to the Applicant's intention was favourable. On the basis of this concession, which was a concession which it seems to me had to be made or else the case would have been lost for lack of adequate and clear reasoning, the true position was that Mr Giddings intended not to abandon the residential use but latterly, that is from 1986, to sell for resumed residential use despite the very poor condition of the building and the long period of disuse. On that basis the use had plainly not been abandoned but, on the contrary, deliberately intended to be resumed despite the difficulties.

22. I should mention that I expressed concern that there was little authority on this point, and

23. Miss Robinson helpfully drew my attention to

24. Judge Marder QC sitting as a Deputy Judge of this court which do not take the matter any further. She also drew my attention to Pioneer Aggregates (UK) v. Secretary of State for the Environment and The Peak Park Joint Planning Board [1985] 1985 AC 132 which concerned abandonment of a planning permission, especially page 139. I do not find anything in that decision which runs counter to my conclusion.

25. For the sake of clarity and for the sake of future cases, I shall attempt a summary. In my judgment

26. MR BOYLE: In those circumstances, I apply for costs. Mr Hughes is legally aided and I would therefore apply for costs on behalf of the Legal Aid Board.

27. THE DEPUTY JUDGE: You cannot resist that, can you,

28. MISS ROBINSON: My Lord, I do, in part. Can I say that my solicitors have received no notification that the applicant is legally aided and therefore I can only assume that my learned friend has instructions on that point.

29. THE DEPUTY JUDGE: But does that affect the matter? It is right that you should have been informed, but does it affect any order that I have to make?

30. MISS ROBINSON: It might do. But, my Lord, I feel I ought to mention it. I accept my learned friend should have some costs but I do resist an order that my client should pay all of his costs because if your Lordship will recall, the Notice of Motion contained two grounds and at lunchtime yesterday, the day before the hearing, the second ground was withdrawn. May I remind your Lordship of the circumstances of that? Ground two was because Mr Giddings' second statement was not listed as a document in the decision letter and its contents not referred to in the decision letter, the Inspector had failed to take it into account. But, my Lord, in fact the position is that that statement of Mr Giddings had been sent to the Inspector by the Applicant himself with his grounds of appeal. Moreover, it was listed as a document at the end of his grounds of appeal. Of course, only the documents produced at the hearing were listed at the end of the decision letter. My Lord, that is something the applicant should have been well aware of. Yet, the point was not withdrawn until my learned friend's supplementary skeleton arrived at lunchtime.

31. THE DEPUTY JUDGE:... which was presumably in response to your skeleton?

32. MISS ROBINSON: I assume so but perhaps, also, in response to the fact that my clients have had to look into this matter, produce the relevant documentation which was not exhibited to the affidavit originally sworn in support of this application, in order to deal with this point. If my learned friend's client were not legally aided, I would be applying for my client's costs dealing with that point. But, in the light of the fact that they are, there does not appear to be much point in that. However, I do resist paying all of the applicant's costs. I submit your Lordship should either adopt a rough and ready approach to costs and say that the Applicant should only have "X" per cent of his costs, or say that the Applicant should have his costs, save any connected with ground two.

33. THE DEPUTY JUDGE: What do you wish to say about that?

34. MR BOYLE: My Lord, if I may, I have two submissions. First, may I give the background to the matter and the timing? Your Lordship is quite right. It was a response to my learned friend's skeleton rather than the amended bundle. The first part of ground two, where it was alleged in the Notice of Motion that this document should have been listed, was a bad point. It was based on previous instructions shown to be incorrect. Just as my learned friend had to (inaudible) because of her holiday commitments, I fear she did not get the supplementary skeleton because I too was on holiday and did not come back until the Monday morning when I saw her skeleton and the amended bundle.

35. The two submissions that I have first, as a matter of principle, had the Applicant pursued the two grounds that were on the Notice of Appeal and your Lordship had found in favour, as your Lordship has done on the one ground, but against the other, then, remembering costs are in your Lordship's discretion, the Applicant would have expected to receive the costs of the entire action. My Lord, it is my submission, there should be no difference to those circumstances and the circumstances here. We are faced with the information then received and in order to, if I put it this way, save court time and preparation time and indeed that of my learned friend beforehand as a matter of courtesy to the Applicant, we did not pursue ground two for those reasons. In my submission, the situation as to costs should be no different.

36. The second submission, as regards ground two in particular, is that if your Lordship still has to hand my supplementary skeleton?

37. MR BOYLE: I was quite careful to explain why ground two was being dropped. There are two elements to ground two. The first being that the statement, on the basis of the instructions that I was working to previously, should have been one of those documents listed at the back of the decision letter. It was not listed, giving the impression that it had, for whatever reason, been forgotten or lost in a way that a document might be lost between the receipt of the hearing and the decision being made. That is a bad point. That is a point not to be pursued before your Lordship.

38. There is a second aspect to ground two, the substance of ground two, which is that the Inspector did not, for whatever reason, take account of the evidence contained within the statement of Mr Giddings' intention. When looked at in that way, it follows fairly and squarely within ground one which is, in part, the failure of the Inspector to take account of

39. Mr Giddings' intention under factor (iv). Of course, on that point, which was pursued, your Lordship found in favour of the Applicant.

40. My Lord, it is for those two reasons, that ground two was not pursued before your Lordship. First, part of it was bad and part of it was already covered and indeed pursued.

41. THE DEPUTY JUDGE: Mr Boyle, you may have your costs on behalf of the Legal Aid Board.

42. MISS ROBINSON: My Lord, I have a further application for leave to appeal. Your Lordship will no doubt be aware that now leave to appeal is required in cases under section 288 as well as section 289. My Lord, the latest Practice Direction directs that leave should be granted if there is a realistic prospect of success of the appeal and that if the issue raised is one of general importance, that will be a factor in favour of granting leave. In my submission, this is a case where there is a point of general importance.

43. THE DEPUTY JUDGE: I agree with that. I agree you should have leave, save I am concerned about the costs. I do not see that any costs should be visited on Mr Hughes in debating this point, which is of general importance. What do you say?

44. MISS ROBINSON: If your Lordship considers that this is a fit case for the grant of leave then, in my submission, any question of costs has to be determined by the Court of Appeal. But, my Lord, perhaps I can indicate that if Mr Hughes has a nil contribution, as to which I know not, then the likelihood is that, if any appeal by the Secretary of State were successful, then an application for costs would be made against the Legal Aid Board under section 18 rather than against Mr Hughes personally. I know that from my own experience that that is the normal practice, then one gets one's costs. If one applies against the Applicant with a nil contribution, the normal order is made and one does not recover anything.

45. THE DEPUTY JUDGE: That may be right. I am inclined to give leave but, as I say, I do not want Mr Hughes paying costs on behalf of the public as a whole. Is there a nil contribution?

46. MR BOYLE: My Lord, no. Mr Hughes is paying £143 a month.

47. THE DEPUTY JUDGE: I suppose we do not know whether he will get legal aid again, do we? Or whether the certificate covers all proceedings, including an appeal?

48. MR BOYLE: My Lord, I only have the London Agent here. As I understand the matter, all that was asked for originally was legal aid to cover this application, whether that could be extended or not, I do not know. I have now been handed the certificate. Legal aid has been issued in context with these proceedings, to overturn the Planning Inspector's decision and that is as far as it goes.

49. THE DEPUTY JUDGE: Yes. I shall give leave. Although it will be for the Court of Appeal to decide what order it can make as to costs, I indicate that I, for my part, am concerned that Mr Hughes should not have to pay costs for litigating this point any further.

50. MR BOYLE: Would your Lordship like to hear from me on the question of leave, before granting leave?

51. THE DEPUTY JUDGE: I have granted it, but I suppose I can retract that.

52. MR BOYLE: My Lord, it is simply this. My learned friend read out two limbs. Your Lordship said it was a point of general importance with a reasonable chance of success. Your Lordship did not call upon me to reply to my learned friend's submission but, central to that reply and the very point your Lordship then took up in his judgment and indeed after the short adjournment yesterday, namely, to remember at all times that factor (iv) is not the intention but evidence as to intention. Throughout all of my learned friend's submissions yesterday, as I followed them through, that distinction was not clearly made, but not made at all. Once my Lord, in my submission, recognised that distinction, that is the key to show the error in the First Respondent's submissions.

53. THE DEPUTY JUDGE: Mr Boyle, I agree, as you know, but I do not think it is right that I should shut out the possibility that there is room for two views in respect of this important matter.

54. MISS ROBINSON: Thank you, my Lord. I think my learned friend needs a legal aid taxation.

55. MR BOYLE: I am obliged to my learned friend.

56. THE DEPUTY JUDGE: Yes. Legal aid taxation. Thank you both very much for your assistance in this case.