England and Wales High Court (Administrative Court) Decisions

Queen on the application of Patrick John Benham-Crosswell; Katherine Anne De Benham-Crosswell and The Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 146 (23rd February, 2001)

Case No: CO/2422/2000

Neutral Citation Number: [2001] EWHC Admin 146

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Friday 23^rd February 2001

MR JUSTICE PENRY-DAVEY:

1. This is an application for judicial review with the permission of the single judge, Sullivan J. granted on 28 September 2000 to quash the decision of an inspector on behalf of the Secretary of State for the Environment, Transport and the Regions on 12 June 2000 not to entertain (and therefore not to determine) appeals brought by each of the two applicants against an Enforcement Notice issued on 13 October 1998 under the Town and Country Planning Act 1990 (as amended) by East Hampshire District Council, and for an order remitting the appeals to the Secretary of State and requiring him to consider and determine them.

2. Section 172 of the 1990 Act provides as follows:

(1) the local planning authority may issue a notice (in this Act referred to as an "enforcement notice") where it appears to them -

(a) that there has been a breach of planning control; and

(b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations.

(2) A copy of an enforcement notice shall be served -

(a) on the owner and on the occupier of the land to which it relates; and

(b) on any other person having an interest in the land, being an interest which, in the opinion of the authority, is materially affected by the notice.

3. Section 174 provides as follows:

(1) A person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him....

(6) In this section "relevant occupier" means a person who-

(a) on the date on which the enforcement notice is issued occupies the land to which the notice relates by virtue of a licence; and

(b) continues so to occupy the land when the appeal is brought.

4. The Enforcement Notice in this case was dated 13 October 1998 and the planning breaches alleged in it were the carrying out of engineering works without the benefit of planning permission specifically in relation to two farm tracks where hardcore and soil had been deposited so as to raise the track levels. The appeals against the enforcement notice of each of the two applicants were made on 17 November 1998 and received by the Planning Inspectorate on 18 November 1998. At the outset, the appeals were to be considered by way of written representations, but the procedure was subsequently changed to that of an inquiry. The inquiry opened on 23 November 1999 and continued on 7 March 2000, 3 -5 and 11- 12 May 2000. The inspector inspected the appeal site on the first day of the inquiry and again on 16 May 2000. For reasons which it is unnecessary for this court to consider there was originally a third appellant who as a result of a reduction in the area of the appeal site withdrew from the appeal, leaving as appellants the applicants Patrick Benham-Crosswell (to whom I shall refer as PBC) and Katherine Anne de Benham-Crosswell (to whom I shall refer as KBC). At the conclusion of the hearing, the inspector decided on the evidence before him that by reason of the provisions of Section 174 of the Act, neither PBC nor KBC had any right of appeal. Accordingly he decided that neither appeal fell to be determined. The applicants contend that the inspector erred in law in his conclusion that neither came within the provisions of Section 174 and in his consequential conclusion that neither had a right of appeal. In considering that issue, he concluded that the words "when the appeal is brought" in Section 174 (6)(b) meant the date when the appeal was received which was agreed as 18 November 1998. He concluded that the right of appeal of "a person having an interest in the land to which an enforcement notice relates" applied only to those whose interest in land continued at least until the date when the appeal was brought, namely the date when it was received. He concluded that neither applicant came within that provision. He further concluded that neither applicant was a "relevant occupier" within the meaning of the Act when the enforcement notice was issued or when the appeal was received and accordingly concluded that neither applicant had any standing under the Act to appeal. It is the way in which the inspector reached those conclusions that is attacked by the applicants as disclosing error in law. Further, the applicants submit that for the purposes of Section 174, it is sufficient for a prospective appellant to establish standing for the purposes of an appeal if he has an interest in the land within the meaning of Section 174 (1) when the enforcement notice is issued and that he is a "relevant occupier" within the meaning of Section 174 (6) when the appeal is brought, that being the date when it is received. The applicants submit that there was no evidential basis for the inspector's conclusions as to the status or lack of status of the applicants at the material times; the respondent contends that the inspector reached conclusions of fact on the evidence, that he applied the law to those findings, and that they are not reviewable in this court.

5. It is accordingly necessary to consider the evidence that was available to the inspector, much of which was undisputed. On 29 October 1993 a company called Springfield Disposal Ltd (subsequently Wimpey Disposal Ltd) granted a five year lease of the farmland including the land to which the enforcement notice applied to the applicants, their father Colonel John de Benham-Crosswell and Camilla de Benham-Crosswell, PBC's wife. Those four were described as "the tenant" in the lease which was for five years. By clause 5.1 the parties agreed that Section 3 of the Agricultural Holdings Act 1986 did not apply, the effect being that no tenancy from year to year would arise at the end of the five year period of the lease. That lease expired on 28 October 1998 15 days after the enforcement notice was issued. By clause 3.20 the tenant agreed when the lease period ended to return possession of the property to the landlord in the state in which the lease required the tenant to keep it.

6. The inspector pointed out in his appeal decision (paragraph 46) that before the enforcement notice became effective on 20 November 1998 there was time for either or both of the applicants to give notice of appeal, prior to the expiry of the lease. They did not do so. At the date when the appeals were received by the specific terms of the lease both applicants were required to have given up possession of the land and moreover there was no tenancy continuing from year to year.

7. Before the adjourned hearing of the appeal East Hampshire District Council wrote to the applicants' solicitors with a detailed request for information about the land in these terms:

"Could you please:

1. explain what has happened in connection with the tenancy and sub-division of land;

2. provide a copy of any relevant tenancy agreements relating to this land;

3. provide copies of any other relevant tenancy agreements affecting the land which is the subject of the enforcement notices;

4. a copy of the lease dated 16 April 1999 made between (1) Nerine Investments Ltd (2) John Alfred de Benham-Crosswell

5. A copy of the lease entered into between (1) Nerine Investments Ltd; (2) J.A. de Benham-Crosswell and K. de Benham-Crosswell referred to in the purchase agreement for Chapel Farm dated 18 March 1999."

8. The applicants' solicitors replied on 25 April 2000 as follows:

"Turning to the fourth paragraph of your letter and the questions you raised concerning tenancies relating to the land coloured blue on the plan you have supplied, we consider it should suffice for the inspector's purposes at the resumed Inquiry to have the following information:

(a) we are instructed that at the time of the issue of the Enforcement Notices our clients were partners in the Chapel Farm Partnership which then held the land on a lease from Wimpey Disposal Ltd.

(b) We are instructed that Wimpey Disposal Ltd subsequently sold its freehold interest in the land to Nerine Investments Ltd and throughout the period since that time and up to the present date the Chapel Farm Partnership has by agreement been responsible for managing and maintaining the land in return for which it is entitled to farm the land for its own benefit.

It follows from the above that both at the time of the issue of the enforcement notices and at the present time, the Chapel Farm Partnership with which our clients are associated, was and is interested in the land."

9. In his decision the inspector referred to the correspondence (paragraph 47) and pointed out that the 1993 lease made no reference to the Chapel Farm Partnership. He added that since the date of the expiry of the lease, there was no documentary evidence other than the letter to support any relationship between the greater part of the appeal site and the Chapel Farm Partnership. He went on to find that there was no evidence that the current freeholder of the bulk of the appeal site including the area covered by the enforcement notices or their predecessors in title had specifically granted a new tenancy to the applicants since 28 October 1998. He pointed out that in March 1999 (as was the fact) Nerine Investments Ltd had sold the freehold of the farmhouse individually to Mrs. Camilla Benham-Crosswell, and in April 1999 a 99 year lease of the land including the farm buildings and the access ways including strips incorporating the tracks that were the subject of the enforcement notice had been granted individually to Colonel J.A. de Benham-Crosswell. The inspector found (Paragraph 52 ) that neither applicant was a tenant whether from year to year or otherwise of any part of the appeal site either individually or jointly or whether or not as part of Chapel Farm Partnership, at the date when the planning inspectorate received notices of the appeals.

10. He went on to consider whether either applicant held a licence to the land. In relation to PBC, he referred to a letter dated 7 June 1999 where the applicant had indicated that his interest in the appeal was primarily that of a person who was about to take over the farming operation. In another letter of the same date, the applicant said that he had been involved in farming on the site for 5 years. The inspector said (paragraph 54):

"Whilst those statements might not be irreconcilable, they cast doubt on the degree of involvement of Appellant C (PBC) at the material dates, bearing in mind that he also has other employment which takes him away from the farm from time to time."

The inspector went on to point out that it was PBC's evidence that he had resigned from Chapel Farm Partnership, though he could not remember when that had happened and was unable to produce any documentary evidence. He did not sign the partnership accounts for the year 1997 - 8 on 4 December 1999, nor did his wife who also resigned from the partnership. The inspector concluded on the balance of probabilities that it was likely that PBC was not a partner when the notice was issued, or when the appeals were received, or at any later date. In relation to KBC, the inspector pointed out that she did sign the partnership accounts referred to, yet in an affidavit sworn in September 1997 for the purposes of the Insolvency Act 1986 she had made no reference to the Chapel Farm Partnership or any derived income. It had been suggested for KBC that she remained a partner in Chapel Farm Partnership albeit that she was also a teacher in London, but the inspector concluded in the absence of any other clear documentary evidence, that "the continuity of the status of Appellant A (KBC) as a partner of Chapel Farm Partnership is unclear and uncertain when the notice was issued, or when the appeals were received, or at any later date."

11. The inspector's remaining findings are in these terms:

"57. No evidence has been produced that the freeholders of the appeal site as a whole have granted a lease, licence or any other arrangement to Chapel Farm Partnership, or to Appellant A or to Appellant C to enable them to occupy the land. The letter dated 10 May 2000 from solicitors of Nerine Investments Ltd makes no mention of any lease, licence or other arrangement with Appellant A, Appellant C or the Chapel Farm Partnership. There is no evidence that rent is paid. In cross-examination, Mr Wyndham-Smith said he had seen documents between the parties relating to the period after the lease had expired, but he was not entitled to release their contents.

58. It is Appellant C's evidence that he has farmed the land for 15 years and that cattle have remained throughout. His relationship with the Chapel Farm Partnership is on a daily basis. In practice, since 1993, he has farmed the land with his father and with hired part-time help. However, in cross-examination, Appellant C conceded that the partnership does not pay him, but that it was in his long term interest to manage the farm without salary and to keep it going for the benefit of an inheritance from his father. He was unable to say what rent was paid under the former lease or whether or how rent is paid currently.

59. The freehold sale of the farmhouse and the grant of a 99 year leasehold interest of other parts of Chapel Farm mean that the farmhouse, farm buildings and the land including many of the tracks which serve the farmland are now held by persons other than Appellant A, Appellant C or the Chapel Farm Partnership. Whilst family ties might be close, this arrangement appears inconsistent with the appellants' claim that the Chapel Farm Partnership has continued to manage and maintain the farm after expiry of the lease. Nor is there any evidence of a licence or other arrangement, granted after expiry of the lease, concerning Appellant C's occupation of the farmhouse (which is part of the appeal site as shown in "the First Plan") which would have entitled him to appeal on that basis.

60. Before the commencement of and during the course of the inquiry, by letters dated 17 November 1999, 1 February 2000 and 27 April 2000, the Council sought documentary evidence of the appellants' entitlement to occupy the land. The burden of proof is on the appellants. It has not been explained why, if such evidence does exist, that it could not be produced to support the appellants' cases that they have a written or oral licence to occupy the appeal site.

Summary

61. The critical date for the purpose of s.174(1) is the date the appeal was received by the Planning Inspectorate both for those "having an interest in the land" and as a "relevant occupier."

62. The Chapel Farm Partnership is not an appellant, but the appellants state that they are two of its constituents at the date of the 1993 lease. Since the expiry of the lease there is no clearly documented link between the appeal site and the Chapel Farm Partnership.

63. However, when the notice was issued, it is probable that Appellant C was not, by this time, a partner of the Chapel Farm Partnership. Whether or not Appellant A was a partner of the Chapel House Partnership is unclear and uncertain; the onus of proof is on the appellant and no firm evidence is available other than unsupported assertions.

64. When Appeal A and Appeal C were received, neither Appellant A nor Appellant C was a lessee of any part of the appeal site (as shown in "the First Plan") either as a named individual, or if remaining so, as a member of the Chapel Farm Partnership; in respect of the greater part of the appeal site, the lease had expired and, for the south west field, there is no evidence of any lease, licence or other interest or arrangement having ever been granted or held.

65. No evidence has been given to demonstrate on the balance of probabilities that, since expiry of the lease, any licence has been granted, or some other verifiable arrangement has been entered into, between either or both of the appellants and the freeholders and/or leaseholder of the appeal site or its parts. I conclude that Appellant A and Appellant C had neither an interest in the land, nor was a "relevant occupier" when the notice was issued or, more critically, when the appeal was received, or at any time since.

Conclusion

66. I find on the evidence before me that by virtue of the provisions of s. 174 of the Act, neither Appellant A nor Appellant C had any right of appeal. I conclude therefore that neither Appeal A nor Appeal C falls to be determined and I will take no further action in respect of these appeals. Appeal B has been withdrawn. I have taken into account all other matters raised, but none would lead to different conclusions in these cases.

Formal Decision

67. For the reasons given above, and in exercise of the powers transferred to me, Appeal A and Appeal C do not fall to be determined."

12. Mr Alesbury on behalf of the applicants accepts that the key dates for the inspector's consideration were 13 October 1998 the date of issue of the enforcement notice and 18 November 1998 the date when the appeals were received. He accepts that the lease expired on 28 October and was not statutorily converted to a periodic tenancy, but he points out that nevertheless PBC and his wife and family continued to live in the farmhouse and the Benham-Crosswell family continued to farm the land. He submits that the inspector was clearly wrong in concluding that neither applicant had an interest in the relevant land on the first material date, namely 13 October 1998 when the enforcement notice was issued, that date being 15 days before the expiry of the lease. In my judgment that contention is plainly right. He goes on to submit that the applicants having had an interest in the land at the time of the service of the notice, did not lose their right of appeal if that interest expired between the service of the notice and the appeal being brought. In any event, he submits that the family carried on farming and living on the site and were in effect "holding over" in spite of the terms of clauses 3.20 and 5.1 of the lease. Alternatively, he submits that the Benham-Crosswells who in fact occupied the land at all material times, can only have been there as licensees or trespassers. He submits that the evidence indicated that their continued presence was plainly tolerated and accepted by a succession of freeholders and that that amounted to an implied licence to occupy rather than trespass. He submits that that was an aspect of the case with which the inspector did not deal. Further he submits that if at the time when the appeals were brought the applicants were licensees in occupation, they were plainly capable of being "relevant occupiers" for the purpose of Section 174(6). PBC lived on the appeal site and was physically there farming in conjunction with the representatives of the more formal family partnership. KBC was there as part of that farming partnership jointly with PBC. He submits that the formalities of partnership are effectively irrelevant or at least not determinative in an informal situation of this kind where the legal formalities do not reflect the realities. Further he submits that for the purposes of Section 174, if a person has an interest in the land when the notice is issued but is only a relevant occupier (for example a licensee) by the time an appeal is brought, that gives him sufficient standing to pursue the appeal. He submits that the inspector's failure to accept that the applicants must have been at least licensees on the land at all relevant stages produces an extraordinary and perverse situation which requires this court's intervention to enable the appeals to be considered on their merits.

13. Mr. Gibbon on behalf of the respondent submits that there was no error of law on the part of the inspector and that he reached a decision which he was entitled to do in the light of the evidence. He points out that by Section 172(2)(b), an enforcement notice is to be served on someone having an "interest in land" if that person's interest is, in the opinion of the local authority, materially affected by the notice. Section 174(1) gives any person with an interest in land, whether served with the notice or not, the right to appeal. He points out there is no requirement that that person appealing should have an interest which is materially affected. Further he points out the definition of "relevant occupier" in Section 174(6) and submits that it is clear from the wording that a "relevant occupier" is not within the meaning of the phrase "a person having an interest in land". He puts forward as a working definition of "interest in land", words which are undefined in the Act, any equitable or legal estate in the land, as opposed to a mere contractual right. He relies on the wording of Section 174(1), notably the words "a person having an interest in the land.... may appeal" as indicating that the interest must exist at the time the appeal is brought, and points out the absence of requirement in Section 174(1) that the person appealing should have had that interest at the date of the service of the enforcement notice. He points out that there might frequently be situations where an interest in land is acquired by a purchaser after service of an enforcement notice, in circumstances where an authority had not served the vendor, because the authority did not think the vendor would be materially affected. It would plainly be unjust if the purchaser then had no standing to appeal. On the other hand he submits there would be no logic in the same circumstances in giving the vendor the right of appeal notwithstanding that at the date of bringing the appeal he had no interest in the land. If a vendor on the point of selling found an enforcement notice, he could either postpone exchange of contracts or put contracts in escrow until the appeal was brought. He would then still be able to pursue the appeal.

14. In relation to licensees, Mr. Gibbon points out that having regard to the legislative history a more restrictive approach has been taken to licensees and the current wording has arisen in order that anyone exposed to a liability under section 179 (short of a trespasser) should have a right of appeal. Section 174(6) he submits ensures that any such person who has been served as an occupier under Section 172(2)(a) should have a right of appeal if he stays in occupation. If he does not stay in occupation, there is no need for him to be given a right of appeal. He is in the same position as the vendor of an interest in land after he has sold. Consistently with that approach he submits, the legislature has taken the view that there is no reason why a licensee who had no interest at the date of service of the enforcement notice should be granted a right of appeal. A licensee can have no legitimate expectations about his future occupation, and is subject to no potential criminal liability by virtue of breach of a notice: he has come to the land and must take it as he finds it.

15. Mr. Gibbon submits that the inspector was right in considering the position of each applicant on an individual basis. He points out that partnership has significant legal consequences for the partners which do not follow for non-partners. When the lease was taken in 1993, he submits that the four persons named on the title were trustees for the purposes of the partnership of which they themselves represented the membership. When PBC left the partnership, whenever and for whatever reason, the position changed. From then on he was effectively a bare trustee. A Chapel Farm Partnership continued and as at the date of the enforcement notice on 13 October 1998 the lease having not expired, PBC had an interest in land as trustee. However, following expiry of the lease it is submitted that there was no subsisting "interest in land". The most there could have been on the evidence was an implied licence. The applicants case was that the partnership continued the farming and any implied licence would then be to the partners for the time being. There was no reason in the absence of positive evidence to conclude that PBC had any continuing role as trustee. PBC had taken the deliberate step of leaving the partnership and thereafter it is submitted became the partnership's servant or employee to the extent that he did work for the benefit of the partnership. Accordingly the respondent submits that the inspector was right in his conclusion as to PBC's lack of status to appeal. As at 18 November PBC had no interest in the land and no standing on that basis to bring an appeal. Even assuming that his interest in land as at 13 October contained within it a licence within the meaning of Section 174(6) as at 18 November he had no licence. Accordingly he was not "a relevant occupier" and had no standing to bring an appeal on that basis.

16. As to KBC Mr. Gibbon submits that the same principles apply though the facts in her case were rather different. She signed the partnership accounts for the year ended 30 April 1998 on 4 December 1999 but that was not the only evidence before the inspector, in that there was also the affidavit she had sworn in Insolvency Act proceedings which made no reference to the Chapel Farm Partnership at all. In those circumstances, Mr. Gibbon submits that there can be no criticism of the inspector for concluding that on the balance of probabilities he was not satisfied that KBC had standing to appeal. As the inspector pointed out, the burden was on the applicants to prove such standing on the balance of probabilities, and even assuming KBC's interest in land at 13 October 1998 contained within it a licence, she did not satisfy the inspector that she was a relevant occupier at the date the appeal was brought.

17. In my judgment, Mr. Gibbon is right in his submission that the wording of Section 174(1) of the Act requires the interest in land to subsist at the time the appeal is brought. The words "interest in land" in the section in my judgment include any equitable or legal estate in the land, as opposed to a mere contractual right. The section does not require that the person appealing should have had an interest in the land at the date of the service of the enforcement notice and where an interest in land is acquired by a purchaser after service, in circumstances where the vendor had not been served because the authority did not think that he would be materially affected, it would plainly be unjust if the purchaser had no standing to appeal. On the other hand, there would be no purpose in my judgment in giving the vendor the right to appeal notwithstanding that at the date of the bringing of the appeal he had no interest in the land.

18. I have already indicated that in my judgment the inspector erred in concluding that neither of the applicants had an interest in the land when the notice was issued, namely 13 October 1998. However, in the light of my conclusion that under the Act the relevant time for the existence of an interest in land is the time when the appeal is brought, and that that was the date when the appeal was received in this case namely 18 November 1998, his error does not necessarily invalidate his conclusion. If there was no error in law in his finding that neither applicant had an interest in the land on 18 November 1998, his conclusion would still have been justified, subject to any further point about "relevant occupier." The burden was on each of the applicants on the balance of probabilities to establish that he or she had an interest in the land at that time and accordingly, the requisite standing to appeal. In my judgment the applicants have not demonstrated that the inspector erred in law. The matters on which they rely in contending that he came to a conclusion that was unjustified are in my judgment matters going to the weight of the evidence, which was a matter for the inspector. He concluded that neither applicant at the relevant time was a tenant or a licensee; he set out the evidence relating to the partnership and he took into account PBC's evidence about his part in farming the land. He considered what had happened to the title to the land subsequently and pointed out that parts of it were held by persons other than either applicant or the Chapel Farm Partnership. In my judgment it is clear that the inspector did consider the evidence before him in coming to conclusions as to the status of the applicants, and in my judgment, save in the one respect which I have indicated, there is no basis for suggesting that he erred in law or reached conclusions for which there was no justification on the issue of whether either applicant had at the material time an interest in the land.

19. I also accept Mr. Gibbon's submissions on Section 174(6) that the effect of that section is to ensure that any "relevant occupier" who has been served as an occupier under Section 172(2)(a) has a right of appeal but only if he remains in occupation until the appeal is brought. If he does not, in my judgment there is no need for him to be given a right of appeal and he is in the same position as a vendor of an interest in land after he has sold. Equally in my judgment in the light of Section 174(6)(a) and (b) a licensee who goes into occupation after service of an enforcement notice has no right of appeal. In my judgment Mr. Gibbon is right in saying that such a licensee can have no legitimate expectation about his future occupation and is subject to no potential criminal liability by virtue of breach of a notice; he has come to the land, and must take it as he finds it. In my judgment the inspector's conclusion that neither applicant had established status as a "relevant occupier" when the enforcement notice was issued on 13 October 1998 or when the appeal was brought namely when it was received on 18 November 1998 was a conclusion open to him on the evidence. He considered carefully the question of the partnership and the position of each applicant in relation to it as well as the other evidence he had heard, including for example evidence as to who was farming the land. In my judgment the matters that the applicants raise again go to issues of weight of evidence which were pre-eminently a matter for the inspector. Where there were pointers in different directions on the evidence, the inspector was entitled to evaluate and assess them, and he did so. In my judgment there is no basis for saying that the inspector erred in law or reached conclusions which were not open to him on the evidence. Accordingly, in my judgment he in no way erred in law in his conclusion that neither applicant had proved on the balance of probabilities the requisite status within the Act to appeal against the enforcement notice and this application is accordingly dismissed.