England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/07/2006

Mr Justice McCombe :

1. This is an application under Section 288 of the Town and Country Planning Act 1990 ("the Act") challenging a decision of Mr. C. Whitehouse, an Inspector appointed by the First Defendant, given by a decision letter ("the Letter") dated 5 January 2006. By his decision the Inspector dismissed the Claimant's appeal under Section 195 of the Act against a refusal by the Second Defendant to grant a certificate of lawful use or development ("LDC") for the use of a building as a dwelling in respect of certain premises known as Hermit's Corner, Brimpsfield Common, Brimpsfield, Gloucestershire.
2. The statutory framework governing the grant of LDCs has been helpfully set out in paragraphs 5 to 10 and 13 and 14 of the written outline argument of Mr. Strachan for the First Defendant. Only limited reference to that material is necessary. Section 191 of the Act sets out a procedure whereby persons wishing to ascertain whether any existing use of land is lawful, in terms of the planning legislation, may make application for that purpose to the local planning authority: see Section 191(1). By Section 191(2) it is provided that for the purposes of the Act a use of land is lawful if no enforcement action may be taken in respect of that use. Under Section 191(4) if the local planning authority is provided with information satisfying it of the lawfulness at the relevant time of the use in question, it shall issue a certificate to that effect, and in any other case it shall refuse the application.
3. The issue to be decided in this case was whether enforcement action could be taken in respect of the use of the subject premises as a single dwellinghouse. Section 171B of the Act provides as follows:

"(2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach."

4. It was the Claimant's contention that no enforcement action could be taken in respect of the use of the subject premises as a dwelling as any breach had occurred longer than four years prior to the date of the application. The application was made on 16 July 2004 and accordingly, to prevent enforcement action being taken, the breach consisting in the change of use must have occurred before 16 (or perhaps 17) July 2000. An enforcement notice in respect of an alleged breach by way of change of use from agricultural to residential use was served on 20 August 2004; no appeal was brought by the Claimant against that notice.
5. The Second Defendant refused the grant of the certificate sought by the Claimant. He appealed against that refusal and the Inspector dismissed the appeal. The Claimant now challenges the Inspector's decision. He makes three broad points, amplified in writing and orally, through Mr. Watkinson who appeared on his behalf before me. His three points are:

i) The Inspector misdirected himself in law as to the test to be applied for determining whether a building was a dwellinghouse;

ii) In reaching his decision the Inspector failed to apply the principles to be derived from the decision of the House of Lords in Uratemp Ventures Ltd. v Collins [2001] UKHL 43 (a decision under the Housing Act 1988);

iii) The Inspector wrongly failed to determine that the premises were a dwellinghouse within Section 171B(2) of the Act.

6. At the beginning of the Letter the Inspector set out the background to the case and the site description in the following terms:

"1. The appellant lives by himself in a small, one-room building in woodland in a Cotswold valley. A simple stone shelter has existed on the site for many years. In 1982 the previous owners obtained planning permission to re-roof the shelter and it seems that in the process a wooden veranda with shutters was added to the south side. The building was used as a store in connection with a small allotment garden that had been created in the clearing. A local resident says that the previous owners were naturists who used the shelter and allotment garden as an occasional retreat where they could enjoy the fresh air in privacy.

2. The appellant bought the land in 1994 and stationed on it an ex-army lorry that had been converted to provide living accommodation. The lorry was placed on raised supports adjoining the shelter, until it was towed away in 2003.

3. The building measures about 4.25m x 5.8m and has a monopitch roof of corrugated sheets. It has a small window under the eaves at the north end and the south end was until recently largely open when the wooden shutters were folded back. Within the last year a window has been fitted behind the shutters. There is a sleeping platform at one end of the room and a sitting area with a settee at the other. Heating is provided by a wood burning stove and there is a butane gas hob for cooking. The walls are largely occupied with shelving containing books, music CDs and other personal possessions. Electricity has recently been connected, but for most of the period of occupation light has been provided by candles and paraffin lamps. There is no running water, bathroom or toilet at the property.

4. Mr. Grendon does some garden maintenance work locally but suffers from bouts of depression and has support from a Community Mental Health Nurse. He values the simplicity of his unconventional lifestyle and the peace and quiet of the rural location. The name "Hermit's Corner" is one that Mr. Grendon has chosen himself, and in my view it gives some indication of how he regards his occupation."

7. He then set out what he described as the "Main Considerations" as follows:

"I consider the main considerations in this case to be: (i) whether as a matter of fact and degree the building is a dwellinghouse, and if so, (ii) whether it has been used as a single dwellinghouse during the relevant four year period prior to the submission of the LDC application."

Counsel agree that those were indeed the main considerations. The Letter then proceeds under a cross-heading entitled "Whether a dwellinghouse". The Inspector referred to three cases which were cited to him, two of which have been cited to me, and in particular to Gravesham BC v Secretary of State for the Environment & anor. (1982) 47 P & CR 142. From those cases, the Inspector stated that he considered that the question whether the building is a single dwellinghouse must be considered by reference both to its use and its physical attributes. Again there is no dispute between the parties as to the correctness of that approach. The Letter then states as follows:

"12. Council officers first inspected the interior of the building in 2002, and it is accepted that the appellant has lived there permanently since that time. The building therefore contains the basic facilities necessary for Mr. Grendon's "hermit-like" existence. He draws water from a spring on the edge of the common for washing and drinking and he digs holes in the wood for toilet purposes.

13. I regard the lack of running water and a toilet as serious shortcomings in terms of the day to day facilities normally expected in a dwelling house. The small, single-room size of the building also sets it apart from what I would regard as a dwellinghouse. To this I would add the lack of proper windows. Until recently the south end was open to the elements when the wooden shutters were open and, when they were closed, there would be hardly any natural light inside. The building was not constructed as a house and it does not in my opinion look like a house. Taken together, these factors in my view enable a clear distinction to be drawn between the appeal building and the holiday chalet that was the subject of the Gravesham case. "

I omit paragraph 14 which merely refers to a previous decision of the Second Defendant in respect of other premises. In paragraph 15 the Letter then states:

"I conclude as a matter of fact and degree that the building is not a dwelling house."

8. The Letter then passes to a section headed, "Period of Occupation". Paragraph 16 is in the following terms:

"Much of the evidence at the inquiry concerned the length of time that the appellant has lived in the building. Since I have concluded that the building does not have the physical attributes of a dwellinghouse, it can not in my view be made one simply by being lived in for a period. Therefore, even if the appellant can demonstrate that he had lived in the building for the whole of the four-year period prior to the application that would not justify the granting of a lawful development certificate as a dwellinghouse. For this reason it is not necessary for me to deal in detail with the conflicting evidence concerning the period of occupation. However, I consider it relevant to assess aspects of the evidence concerning the use made of the converted lorry, since this has some bearing on the extent of use of the shelter. "

9. The Inspector then proceeds to deal with the evidence before him on the Claimant's side that the Claimant had lived in the building for more than four years and had used the lorry mainly for storage. He also cited evidence from the Claimant accepting that he used the lorry as a day room in the winter and for receiving visitors. His evidence is noted that the lorry became "leaky", that it was sold in 2001 and was towed off the site in 2003. On the other side there was evidence of local residents who had been regularly to the site and had seen smoke coming from the lorry flue up to the time of its being removed. Further, there was a letter from a Community Nurse who had visited the Claimant at the site in December 2000 stating that the Claimant was living in the lorry at that time. The inspector concluded that there were many advantages to the Claimant in using the lorry as part of his accommodation while it was on site. He concluded that,

"on the balance of probability…before the lorry was removed it was being used as part of the residential occupation of the site in conjunction with the shelter. This reinforces my earlier conclusion that the facilities and physical attributes of the building itself fall far short of those required of a single dwelling house".

10. Within the broad parameters of the points of challenge to the Inspector's decision, Mr. Watkinson submits that the Inspector reached his conclusions on the question simply by reference to the physical attributes of the building, with out any or any adequate regard to the use made of the building by the Claimant. Further, in dealing with the evidence about the use of the lorry, the Inspector failed to deal as a whole with the evidence relating to the use of the building. Finally, he submits that, by reference to the Uratemp case, the use of the building by the Claimant as his home was the significant or determinative criterion for deciding whether the building's use had been changed to "use as a single dwellinghouse".
11. I think it is best to deal first with the decisions relating to the question of what is a "dwellinghouse" and/or "use as a single dwellinghouse" for the purposes of Section 171B(2) of the Act and then to turn to questions arising about the criticisms of the Inspector's approach to his decision in this case and the structure of the Letter which communicated that decision.
12. Apart from Uratemp and Gravesham (supra) I was referred to three other cases: Backer v Secretary of State (1982) 47 P & CR 149, Moore v Secretary of State [1998] JPL 877 and Impey v Secretary of State (1980) 47 P & CR 157. From these cases, Mr. Watkinson sought to derive four propositions:

i) "Dwellinghouse" is an ordinary English word; it is not a term of art. It is to be construed similarly in whatever statute it is found;

ii) The meaning to be attributed to that term in the Housing Act 1988 should, therefore, be the same or similar to that to be attributed to it under the present Act;

iii) The cases under the Planning Acts demonstrate a shift from a consideration of this issue "in the round", taking into account the physical state and the actual or intended use of the subject premises, to a test emphasising whether the building "affords to those who use it the facilities required for day to day private domestic existence" (see Gravesham at p. 146);

iv) The proper test is to place equal emphasis on use and intended use as a dwelling as the dominant criteria.

13. The cases to which I have been referred clearly show that the question in these cases is essentially one of fact. In the Gravesham case (supra) McCullough J approached a similar problem relating to a weekend and holiday chalet in a manner that later commanded approval of the Court of Appeal in Moore's case (supra) (see p. 119, per Nourse LJ). McCullough J's approach was this:

"In using a simple word in common usage and leaving it undefined, Parliament realistically expected that, in the overwhelming majority of cases, there would be no difficulty at all in deciding whether a particular building was or was not a dwelling-house. The use in a statute of almost any word in common usage may give rise to difficulties of interpretation in a very small number of cases, but the problems are both fewer and less troublesome than those that are apt to result when the statute defines the word. The good sense of this is such that I do not intend to resolve the issue that arises in this appeal by attempting to define what Parliament left undefined.

The more helpful approach, in my opinion, is to consider a number of buildings that quite clearly are dwelling-houses and others that equally clearly are not and see whether this throws up any indication of what ought and what ought not to be taken into account.

Consider a building that anyone would acknowledge as a dwelling-house. If it is not being lived in because, for example, the occupants are on holiday or because they have two houses and spend half the year in each, it remains a dwelling-house. Take a common situation where a family has a second house in the country that is only visited at weekends, in the summer months and for a summer holiday. That is clearly a dwelling-house. So the intention to use one's house, or the practice of using it throughout the year, is not essential.

If a house is empty pending its sale or because its owner cannot, or does not want, to let it, it is still a dwelling-house. So emptiness is not fatal.

If it cannot be occupied because it is flooded, or is undergoing extensive repair, it is still a dwelling-house. So, too, a second home in a remote mountainous district, cut off by snow every winter. So an ability to use it whenever one wants to is not an essential either.

Suppose that there is a national emergency and an order is made prohibiting the use of houses in a particular area for the duration of the emergency: they would nevertheless remain dwelling-houses. So even an inability to use a house lawfully does not necessarily prevent it from being a dwelling house.

Leaving aside extraordinary events like floods and national emergencies and repairs so extensive that the occupant has to move out, is it a characteristic of every dwelling-house that the owner or occupier could live in it permanently if he wanted to? I think not.

Suppose that a London-based company requires a succession of employees to be based one at a time for four months in a location far distant from London. Suppose that the company buys a house and makes it available to each employee and family for his tour of duty. It would still be dwelling-house. Take a holiday cottage subject to time-share with a number of owners each enjoying the right to occupy it for two particular weeks each year. That would still be dwelling-house.

What have these examples in common? All are buildings that ordinarily afford the facilities required for day-to-day private domestic existence.

This characteristic is lacking in hotels, holiday camps, hostels, residential schools, naval and military barracks and similar places where people may eat, sleep and perhaps spend 24 hours a day. Quite clearly, none of these is a dwelling-house.

Mr. Aitchison has emphasised the "dwelling" in "dwelling-house" and has stressed that to dwell is to remain or reside. Comparatively few of those living in the buildings last mentioned ordinarily stay for long enough to be regarded as residing there. He submits, therefore, that a capacity to provide permanent accommodation is the essential character of a dwelling -house.

In my judgment, however, its more distinctive characteristic is its ability to afford to those who use it the facilities required for day-to-day private domestic existence."

14. McCullough J also referred to Scurlock v Secretary of State (1976) 33 P & CR 202, which demonstrated that the tribunal of fact in such cases has to have regard to the use to which the building in question is in fact put. The learned judge continued, however, in these terms:

"…I do not read [Scurlock's case] as saying that every dispute of this kind is to be resolved by having regard only, or even primarily to the use to which a building is put. A case can be conceived in which user would, at best, be of only marginal relevance – for example, a wooden shed consisting of an office, w.c. and washbasin could hardly be turned into a "dwelling-house"…because someone put furniture in it and lived there".

Mr. Strachan submitted that the present case fell within the type of case covered by this last quotation from McCullough J where user was of "marginal relevance".

15. In Impey v Secretary of State (supra) Donaldson LJ (as he then was) said,

"…the physical state of [the] premises is very important, but not decisive. Actual use or intended use or attempted use is important, but not decisive. These matters have to be looked at in the round…".

16. The lynch-pin of Mr. Watkinson's submissions on this part of the case, the meaning of the word "dwellinghouse," was the decision of the House of Lords in Uratemp (supra). That case was concerned with Section 1(1) of the Housing Act 1988 which provides that a tenancy under which a "dwelling-house is let as a separate dwelling" is an assured tenancy subject to certain other statutory conditions. I was referred to several passages in the speeches of their Lordships in that case. Mr. Watkinson emphasised the passage in the speech of Lord Irvine of Lairg LC (paragraph 3) which pointed out that the word "dwelling" was not a term of art, but a familiar English word to be construed accordingly. He referred to the speech of Lord Bingham of Cornhill to similar effect (paragraph 15):

"The starting point must be that "dwelling-house is not a term of art. It is an ordinary word in the English language. While I accept that dictionaries cannot solve issues of interpretation, it nevertheless is helpful to bear in mind that dwelling-house has for centuries been a word of wide import. It is often used interchangeably with lodging. It conveys the idea of a place where somebody lives…".

Mr. Watkinson submits that the Claimant at all material times lived at this building.

17. In particular, Mr. Watkinson relied upon the comment by Lord Millett in paragraph 58 of the speeches:

"…The first step is to identify the subject matter of the tenancy agreement. If this is a house or part of a house of which the tenant has exclusive possession with no element of sharing, the only question is whether, at the date when the proceedings were brought, it was the tenant's home. If so, it was his dwelling".

18. Mr. Strachan parted company with Mr. Watkinson on these submissions. He argued that Uratemp was a decision on different facts and on an entirely different statute with a different purpose. As Lord Bingham pointed out the object of the Housing Act was to give a measure of security to those who make their homes in rented accommodation at the lower end of the housing market: see paragraph 10 of the speeches in Uratemp. Mr. Strachan submits, I think rightly, that the object of the Act with which this case is concerned is the question of land use and the competing demands of private and public interest in relation to such use. He submitted, again I think rightly, that Lord Millett's formulation of the question before him could not be used in cases under the Planning Acts where it has been frequently held that premises can be a dwelling house without anyone being in occupation at all. Indeed, for my part, I think that the important phrase for the purposes of Uratemp was "…let as a separate dwelling" rather than the word "dwelling-house" in the same section, since the Section pre-supposed that one might have something properly called a "dwelling-house" which might not be the tenant's "dwelling". Further, I was directed to the comment of McCullough J in Gravesham where he referred to the expression "dwelling-house" as used in this legislation and continued:

"Contrast other fields such as rating, rent control and protection from eviction, where the term "dwelling-house" relates essentially to a unit of occupation. Thus whatever else may be the attributes of a dwelling-house, it is a building of a particular kind".

19. In Backer's case, Mr. David Widdicombe QC, sitting as a deputy judge of this Court, referred to the use of the expression "dwelling-house" as found in the Rent Restriction Acts; he noted that under those Acts a distinction had been drawn between mere residential use and use as a dwelling-house. He continued:

"Of course, a word used in one Act is not necessarily a guide to the meaning of that word in another unrelated Act, but the following passage from the judgment of Evershed J, giving the judgment of the Court of Appeal in Macmillan & Co. Ltd. v Rees [1946] 1 All ER 675, 677 does appear to me to be applicable to the word "dwelling house" in the [Town and Country Planning] Act of 1971:

"It is, no doubt, true that the acts of sleeping upon premises at night and of having meals upon them by day are acts which may be described as "residential" in character. But the use of premises as a dwelling-house is by no means necessarily confined to their use by the tenant for sleeping and eating. The experience of great numbers of Englishmen during the last six years provides many instances of sleeping and eating upon premises which could by no fair use of language on that account be described as dwelling-houses. In other words, to sleep on particular premises at night, or to have one's meals upon them by day, or both, ought not ipso facto to have the effect in law of making those premises a dwelling-house…"…"

20. From all these passages and many others from the cases, and as a matter of principle, I cannot accept the generalised nature of Mr. Watkinson's first two propositions set out in paragraph 12 above. In my judgment, this section in this Act must be construed in the context of this Act. Part of that exercise of construction is to have proper regard to the legislative purpose of the Act, which in broad terms I accept to be as contended for by Mr. Strachan. Nor do I accept the submission of Mr. Watkinson, attractively as it was put, that the relevant question in this case is simply answered by asking whether the Claimant was using this building as his home at the relevant date or dates.
21. As the cases under this Act and its predecessors have emphasised the question is to have regard, to an appropriate degree in each case, to both the physical state of the premises and their user, actual, intended and/or attempted. The result is that I cannot accept Mr. Watkinson's third or fourth propositions as formulated as representing the present state of the law. Moreover, it is tolerably clear to me that the House of Lords in Uratemp was not intending to lay down a universal definition of the term "dwelling-house" that was to apply across the board to that expression in any Act of Parliament.
22. I turn, therefore, to the criticisms made of the Inspector's approach to this case and the structure of the Letter. It is, in my judgment, clear that the Inspector when considering the first of his "main considerations" was intending to consider both the use of the structure and its physical attributes: see paragraph 11 of the Letter. He accepted that, since 2002, the Claimant had lived there permanently. He acknowledged that it contained the basic facilities for what he described as the Claimant's "hermit like" existence: see paragraph 12. Those were the relevant factors relating to user; no others were apparent. (As appears later in the letter the real dispute on the evidence was as to the precise period of the Claimant's occupation.) He contrasted those factors with the physical state of the premises. He had also visited the site. Putting those matters together he concluded that this building was not a dwellinghouse. He did not use those words, but he seems to have decided that, having regard to the physical attributes of the building, user was only of marginal relevance in this case, as in the example given by McCullough J at page 147 in the Gravesham case. I find it impossible to say that he was wrong in so concluding.
23. Looking at these premises, the Inspector was simply unable to find as a matter of fact that they constituted a "dwellinghouse" and they could not be turned into one by the mere fact of the Claimant living there. As he said, it was not, therefore, necessary for him to go on to consider the detail about precisely when the Claimant had actually been in occupation, about which there was conflicting evidence. What he did do was to have regard to the evidence that he had heard, that while the old lorry was on the site, it had been used by the Claimant as part of his living facilities. In those circumstances, the Inspector was unable to conclude that the Claimant had established that the use of this building, for which after all the certificate had been sought, had been changed at any time to use as a single dwellinghouse. He considered that the Second Defendant had been right to conclude that the relevant change of use had not been shown because it simply did not have the physical attributes of a "dwellinghouse" even with the Claimant's modest requirements.
24. In my judgment, the Inspector was entitled to find as he did on the evidence before him and, in reaching, that conclusion, he properly directed himself in law. This claim is accordingly dismissed.