England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE LIST

		The Lands Tribunal Procession House 110 New Bridge Street, London, EC4V 6JL
		16th July 2004

1. MR GEORGE BARTLETT: This is an application under section 288 of the Town and Country Planning Act 1990 to quash the decision of an inspector appointed by the first defendant dismissing an appeal by the claimants against the refusal of planning permission by the second defendants. The application for planning permission described the development as being the rebuilding of a fire damaged house. The local planning authority's refusal notice described the proposal as being for the reconstruction and refurbishment of a part demolished building.
2. The building in question is the remains of a two storey dwelling standing in open countryside close to the M69 motorway and to the southeast of Burbage, a suburb of Hinckley in Leicestershire. The building known as Brickyard Farm had, one may infer, been unoccupied for some time when in 1994 the council issued a certificate of lawful use, stating that it was satisfied that the residual use of the property had not ceased. The claimants bought the property in 1997 and submitted an application for planning permission, which was granted subject to conditions in 1998, for "alterations and extensions to dwelling, erection of double garage and stable/tackroom". Condition 10 of the permission stated:

"This consent relates to alterations and extensions to the existing dwelling and in no way implies consent for demolition and rebuilding."

In August 2000 the building was damaged by fire started by vandals. The fire brigade undertook further demolition works at the time to make the building safe. All that was left of the building was the western end, consisting of a room on the ground floor and a room above it, and small parts of the ground floor exterior wall.

3. In October 2004 a full plans approval under the building regulations was given. In January 2002 the claimants started work on the house, but the council said that the building had become incapable of renovation so that, in the light of condition 10, the 1998 planning permission was no longer capable of implementation. Work accordingly ceased.
4. The planning application which has resulted in the present proceedings was made in June 2003 and was refused by the local planning authority on the ground that, since the site lay outside the settlement boundary of Burbage, the dwelling was not required for agriculture and the development would be contrary to Policy NE5 of the Hinckley and Bosworth Local Plan.
5. The claimants' appeal was dealt with by written representations. The Inspector said that he considered that the main issues were whether there would be conflict with policies for the control of housing in the countryside and, if so, whether there were other reasons sufficient to outweigh any such conflict. His decision then went on under the heading "Reasons":

"The appeal site lies within the open countryside, outside the boundaries of any settlement, where the Council's policies seek to restrict residential development unless needed for agriculture or another use acceptable in the countryside. The appellant has not suggested that the dwelling would be needed in connection with any acceptable countryside use and so in those precise terms there would be clear conflict with Strategy Policy 4 of the SP, Policy NE5 of the HBLP and Strategy Policy 9 of the Deposit Draft SP.

7. The appellants, however, consider that the question of abandonment is fundamental to the determination of the acceptability of this proposal. The tests of abandonment have been established by Hughes v Secretary of State and South Holland DC where four criteria for the assessment of abandonment were listed. These include, the physical condition of the building; the length of time for which the building has not been used for residential purposes; whether the building has been used for any other purpose and the owner's intention. I do not dispute the owner's intentions to continue the use of the site for residential purposes, the history of vacancy associated with the building nor the use of the building.

8. To my mind, however, the physical condition of the building is the telling factor in this case. There is no dispute that the building is in very poor condition. That was confirmed at the site visit when it was apparent that the major part of the building would need to be rebuilt because most of the walls and roof were absent. In January 1998 application number 97/01043/FUL for alterations and extensions to the dwelling the subject of this appeal, including a garage and a stable block, was granted with a condition that barred any demolition and rebuilding. In August 2000 vandalism, including fire damage, resulted in part of the building being demolished for safety reasons. As a consequence, most of the structure of the building has been demolished and in my judgment, even the small portion that remains standing, would require a significant amount of reconstruction and refurbishment, especially to the roof section. I accept that a third party was involved in the deterioration of the structure but nevertheless the appeal property is in such a dilapidated state that the proposal would effectively involve the construction of a new house. That would be tantamount to providing a new dwelling in the countryside.

9. I am aware that the Council's Policy RES10 of the Local Plan entertains the possibility of replacement dwellings in the countryside. However, the Council considers that there should be special justification for the development of a replacement dwelling. I sympathise with the circumstances leading to the damage that has been caused to the appellant's property but I cannot accept that those circumstances would qualify as a special justification similar in nature to mining subsidence as a cause of damage. It is my view that the proposal does not accord with the aims and objectives of Policy RES10 of the Local Plan and so I must conclude that it is unacceptable."

The Inspector expressed his conclusion in this way at paragraph 10:

"The proposal would result in a new dwelling in the countryside and that would be in conflict with policies for the control of housing in the countryside that exist to protect it from development. I accept that the appellant's intentions were to re-occupy the building as a dwelling and that there has not been any other use of the building but I consider that the condition of the appeal building is so poor that the proposal involves the provision of a new house. Consequently, there is nothing before me to outweigh the general planning consideration to protect the countryside in line with the development plan and with Government guidance."

The claimants now challenge this decision on two grounds. They say that the Inspector erred in attributing determinative weight to the physical condition of the existing property in considering their contentions on abandonment, and they say that the decision is incompatible with their rights under Article 1 of the First Protocol to the European Convention on Human Rights. On their behalf Mr Simon Pickles refers to Hughes v Secretary of State for the Environment [2000] 1 PLR 76, which recognised that all the four factors identified by the Inspector in his decision letter were to be evaluated. Although the ground advanced in the particulars of claim was that the Secretary of State had erred by attributing determinative weight to the physical condition of the building, Mr Pickles says that he puts the case on the basis of Wednesbury unreasonableness.

6. Clearly the weight to be attached to a particular consideration is a matter for the decision-maker, and provided he takes the material considerations into account, his decision can only be impugned if the very demanding test of irrationality is met. Mr Pickles said that the Inspector accepted in effect that the evidence concerning three out of the four factors relevant to abandonment pointed towards the absence of abandonment and attributed determinative significance to the fact that the proposal would, as he put it in paragraph 8, effectively involve the construction of a new house tantamount to providing a new house in the countryside. Mr Pickles said in particular that the significance attributed to the physical state of the building was unreasonable, having regard to the recent affirmation of use rights by the grant of the certificate of lawful use and the planning permission itself, the recognition that the claimants continued to intend to exercise their use rights and, he said, most importantly, the fact that the permanent termination of the rights resulted from third party intervention, and that the intervention was both transient and unlawful.
7. I am wholly unable to accept the contention that the Inspector's decision that the use of this building had been abandoned was irrational. In contrast to the house which had been the subject of the certificate of lawful development, the building was a derelict residuum, with just two uninhabitable rooms, one above the other. It was incapable of residential use, and what the claimants wanted to do was to construct a new building. That was their intention if they could get planning permission to do so. To suggest, as Mr Pickles does, that the certificate, the intention of the claimants and the fact that the destruction was wrought by vandalism compelled the conclusion that the use of these unusable remains had not been abandoned is in my judgment plainly wrong. The Inspector's conclusion is manifestly not unreasonable.
8. However, it does not appear to me that the Inspector did in fact determine the appeal on the basis of abandonment. Having noted in paragraph 6 the clear conflict with planning policy involved by the proposals, he went on to say in paragraph 7:

"The appellants, however, consider that the question of abandonment is fundamental to the determination of the acceptability of this proposal."

He then addressed that contention without himself, as I read his decision, accepting that it was, as the claimants thought it, fundamental. It was not suggested that abandonment was a question raised by any of the planning policies. The Inspector dealt with the contentions on it, however, as I have noted, in paragraphs 7 and 8. Having done so, in paragraph 9 he referred to policy RES10. That policy provided:

"Replacement Dwellings

Planning permission for replacement dwellings in the countryside will initially be considered in terms of the countryside policies of the plan. where the borough council is satisfied that there is special justification for the development of a replacement dwelling, it will only be permitted where:

a It is of a similar size and scale to that of the original dwelling, and

b It is built on a similar footprint or where appropriate and less detrimental to the character or appearance of the countryside within the curtilage of the original dwelling."

Having referred to Policy RES 10, the Inspector said that he could not accept that the circumstances would qualify as a special justification. Thus, the proposal would conflict with Policy RES10, just as it conflicted with the policies which he had referred to in paragraph 6. It was this conflict with policy, as he stated in paragraph 10, that was the reason for his rejection of the appeal. For the Inspector, as I read his decision, the determining factor was not the issue of abandonment but the fact that what was proposed was effectively a new house.

9. Mr Pickles' second ground of challenge was that the decision of the Inspector was incompatible with the claimants' rights under Article 1 of the First Protocol and therefore unlawful. Article 1 is entitled: "Protection of Property" and provides:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

Mr Pickles said that in applying Article 1 the court must be satisfied that a fair balance is struck between the interests of the public at large and the rights of the individual or, putting it another way, that the controls prescribed are proportionate or operated proportionately. He submitted that the conclusion that the doctrine of abandonment operated to discontinue the claimants' land use rights on the facts of the case was one that very clearly struck an unfair balance. He added that the absence of compensation further aggravated what was already a disproportionate outcome.

10. I cannot accept that Article 1 is engaged here. The claimants have not been deprived of their possessions or the peaceful enjoyment of them. The issue before the Inspector was whether planning permission should be granted for operational development. The refusal of planning permission has done no more than to deprive the claimants of the prospect that planning permission for the development might be granted. Both grounds accordingly fail and the application is refused.
11. MR STRACHAN: In those circumstances I ask for an order in those terms dismissing the claim. I do also seek an order that the claimant pay the first defendant's costs. You may have a schedule of costs.
12. MR GEORGE BARTLETT I do not have one.
13. MR STRACHAN: The sum is a total of £3,410. I would seek an order in those terms.
14. MR PICKLES: I do not resist that.
15. MR GEORGE BARTLETT: I make an order for costs in the first defendant's favour in the sum of £3,410.