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
		1 May 2009

Lord Carlile of Berriew QC :

Background

1. This case turns upon the use of part of a log cabin and a physically separate building described as a goat shed at the Appellant's premises Four Oaks, Margaretting. Four Oaks is set in a rural part of the Second Respondent's borough.
2. The Appellant's appeal is made pursuant to Town and Country Planning Act 1990 [TCPA1990] against one part of a delegated appeal decision taken by a Planning Inspector authorised on behalf of the First Respondent the Secretary of State. The Inspector determined two appeals against enforcement notices issued against the Appellant and served on the 23 September 2005.
3. This Court was concerned only with what has become known as enforcement notice B.
4. Notice B alleged the residential use of part of the building known as the log cabin in conjunction with the 'goat shed' as a unit for residential purposes until a date more than four years before the service of Notice B.
5. Part of the background is that the Appellant accepted that he and his wife had lived for several years in the log cabin. They had concealed their residential occupation of the cabin deliberately, for example by concealing windows behind moveable panels covered by hay. Meanwhile they created for themselves and visiting family a comfortable bungalow within, with all mod cons, but without the benefit of planning consent.
6. There were in existence other enforcement notices in relation to the unpermitted use of the goat shed.

The Legal Framework

7. A breach of planning control entitles the local planning authority [LPA] to serve an enforcement notice under TCPA 1990 section 172 requiring compliance, and remedial steps.
8. TCPA1990 section 171B contains time limits for enforcement action. Pursuant to the section, where there has been a change of use of any building to use as a single dwelling house, the time limit for enforcement is 4 years. However, where there has been a change of use other than to a single dwelling house, the time limit for enforcement action is 10 years.
9. In the present case the Respondents' case is that there was such a change of use other than to a single dwelling house, in which part of the log cabin and the goat shed, though separate buildings, were part of a dwelling (but not a single dwelling); and that the subsequent use of the log cabin as a single dwelling commenced less than four years before Notice B.
10. TCPA1990 section 174(2)(d) provides for an appeal to the Secretary of State against an enforcement notice. In this case the basis of the appeal was founded in section 174(2), the Appellant's assertion being that it was manifestly unreasonable to conclude that the goat shed was being used as described above, as part of a dwelling.

The Permission to Appeal.

11. Limited permission was granted by Underhill J on the 29 September 2008

" on Enforcement Notice B only, limited to the question of whether the conclusion reached by the Planning Inspector that the log cabin and the goat shed formed a single planning unit in residential use until some time in 2002 was irrational in the light of any DVD evidence shown to him by the Appellant."

Evidence in this Court

12. In accordance with the intention of Underhill J and consequent directions given by him, I viewed the two DVDs previously shown by the Appellant to the Planning Inspector. The first, taken in the goat shed on the 28 November 2000, included a kitchen with units, a desk with typewriter, an upstairs bedroom, a hole in the roof, boxes of domestic items, a bathroom with some unconnected pipes evident, and a hole in the upstairs wall. The second, dated October 2001, showed the goat shed in a clean condition. Inside the kitchen was a fridge-freezer clean inside and out, but unconnected. The light in the kitchen was switched on, and there were a teapot and bottles on the surfaces, together with clean cutlery. There was a rocking horse in one room. Also, there was what appeared to be a made-up bed with a pillow and bed clothes: when dismantled in front of the camera this was demonstrated as a rickety structure comprising a frame of milk crates turned on their sides, with a plywood or hardboard base, possibly too weak to support an adult.

Necessary Law

13. In order to succeed in his appeal, the Appellant must demonstrate that the Planning Inspector's decision was irrational – a high hurdle. In the planning case of R (Newsmith Stainless Ltd) v Secretary of State for the Environment etc. [2001] EWHC 74 (Admin) Sullivan J observed:

"7. In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an appellant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments…

8. Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment faces a particularly daunting task."

The Inspector's Findings

14. The Inspector found in relation to the goat shed:

" 18. …The Council has monitored its use over the years. … the Council carried out a site visit in October 2001 at which it found clear evidence of the current use of the dwelling in all the main rooms of the goat shed, including the presence of food and drink and used pots in the kitchen, a made-up bed, clothes in the bedroom and personal care items in the bathroom.

19. The appellant … acknowledged that he was content for the Council to arrive at the conclusion that the goat shed was in use for residential purposes, albeit in contravention of the [goat shed] enforcement notice, as this was part of a plan to mislead the Council into finding that he was living in the goat shed when, all along, he was living in the log cabin. At the site visit, the Council did not inspect the log cabin.

21. … in my view the log cabin and the goat shed were, to all intents and purposes, one dwelling unit as, from 1997 to early 2002, the accommodation in the goat shed was in a liveable condition. … The appellant's video evidence showed that the goat shed was in poor condition by late 2002 and early 2003, but this is not surprising as the building was severely damaged by a tree branch falling through the roof in may 2002. By this time, however, the appellant was able to live in the completed log cabin building."

15. It is against that factual decision that the Appellant's appeal is directed. Despite his deliberate and successful attempt to mislead the Second Respondent Council in 2001 into missing the truth about the log cabin, he asserts that it was a mere deception – and that the conclusion that he was using the goat shed as a dwelling at that time and earlier is plainly incorrect.
16. The Inspector carried out a site visit and inspection, viewed the DVDs, and formed his impression as an expert tribunal of the planning use at the various times material to the case. Aware as he was that, as Mr Bridle had said in evidence, the second DVD was taken in late 2001, just after beginning of a crucial 4 year period, he concluded that the goat shed was being used in conjunction with the log cabin at that time. If that conclusion is sustained, it is fatal to this appeal. The DVD evidence did not stand alone: he heard of various site visits, including from a specialist Council officer Mr Tolkey, who described what he saw in October 2001 as including towels on the bath, tooth brushes and toothpaste in a wall holder, and soap and face cloths on the wash basin; and clothes hanging from coat hangers – evidence of established use as part of a dwelling.
17. In addition, the Inspector expressed serious misgivings about the Appellant's credibility.

My conclusions

18. Having considered all the oral argument and documents placed before me, and viewed the DVDs, I find it impossible to accept the Appellant's contentions that the Planning Inspector's conclusions were irrational.
19. In my judgment his conclusions were amply justified by the evidence he heard and saw, and not undermined by my viewing of the Appellant's DVDs.
20. In the circumstances this appeal must be dismissed.