Grendon, R (on the application of) v Secretary of State for Communities and Local Government & Anor

This is a renewed application for permission to appeal from an order made on 14 July 2006 by McCombe J sitting in the Administrative Court on an application made by Mr Stephen Grendon under section 288 of the Town and Country Planning Act 1990. The relief sought by that application is an order quashing the decision of the First Secretary of State through his appointed inspector and communicated by letter dated 5 January 2006. The inspector had dismissed Mr Grendon’s appeal under section 195 of the 1990 Act from the decision of Cotswold District Council as local planning authority contained in a notice dated 28 April 2005. The planning authority’s decision was to refuse a Certificate of Lawful Use in respect of a building at Brimpsfield Common in Gloucestershire. The judge dismissed the application under section 288 of the Act. On 14 March 2007 he refused permission to appeal. Mr Grendon’s application for permission to appeal was refused by this court by Laws LJ on 27 April 2007 after consideration on the papers. A renewed application now comes before us on an oral hearing.

Section 19(1)(i) of the 1990 Act enables a person who wishes to ascertain whether any existing use of buildings is lawful to apply to the local planning authority. In that context a use is lawful at any time if no enforcement action may then be taken in respect of it: whether because the use did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason (section 191(2)). If, on an application under section 191(1), the local planning authority are provided with information satisfying them of the lawfulness of the use at the time of the application they shall issue a certificate to that effect. Otherwise, they shall refuse the application.

In the present case Mr Grendon’s application under section 191 was made on 16 July 2004. The land and buildings to which the application relates was described as Hermit’s Corner, Brimpsfield Common. The existing use was said to be use of the building as dwelling. That use was said to have begun in the autumn of 1996. The grounds on which the Certificate was sought were that the use began more than four years before the application was made. The application was accompanied by a letter from planning consultants to which were attached a number of statements, plans and other documents.

Section 171B of the 1990 Act prescribes time limits after which no enforcement action may be taken in respect of a breach of planning control. Subsection (1) relates to the carrying out of building, engineering, mining or other operations on, over or under land and prescribes a four year period. That subsection is not in point in the present case. Subsections(2) and (3) are in these terms:

“(2)

Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.”

“(3)

In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach.”

The important feature in the present context is that where the alleged breach of planning control consists of the change of use of a building to use as a single dwelling house the relevant period after which no enforcement action can be taken so that the existing use becomes lawful for the purposes of section 191(2) of the 1990 Act is four years. In the case of any other change of use constituting a breach of planning control, the relevant period is ten years.

The notice of 28 April 2005, by which the decision of the local planning authority refusing a Certificate of Lawful Use was notified to Mr Grendon and his agent, gave as the reason for that authority's refusal:

“Having regard to the evidence submitted by all parties, the Local Planning Authority considers that on the balance of probability the use of the structure at Hermits Corner for residential purposes for a period in excess of 10years has not been sufficiently proven, therefore the application does not satisfy the provisions of Section 191 of the Town and Country Planning Act 1990.”

It is implicit in that reason, although not stated in terms, that the planning authority did not regard the case as falling within section 171B(2): “change of use to use as a single dwelling house”. The authority plainly treated the change of use as falling within section 171B(5); and on that basis were not satisfied that the change had occurred more than ten years before the date of the application. Given that it was stated on the face of the application, which, as I have said, was 16 July 2004, that use had commenced in 1996 and that it appeared from Mr Grendon’s own statement that he had not purchased the land until November 1994, that conclusion was inevitable.

Mr Grendon appealed to the Secretary of State, as he was entitled to do under section 195(1)(a) of the 1990 Act. Subsections (2) and (3) of section 195 provide that, on such appeal, if the Secretary of State is satisfied that the planning authority’s refusal is not well-founded he shall grant the Certificate under section 191 but if satisfied that the refusal is well-founded he shall dismiss the appeal. The First Secretary of State -- being the relevant Secretary of State at that time -- appointed an inspector; an inquiry was held on 8 December 2005 at which evidence was given by Mr Grendon and a number of other witnesses; and the inspector made a site visit on the following day. On 5 January 2006 the inspector issued his decision letter. For the reasons which he set out in that letter he concluded that the council’s refusal to grant a Certificate of Lawful Use in respect of use of the building as a single dwelling house was well-founded, so he dismissed the appeal.

At paragraphs 1 to 5 of his decision letter the inspector described the site and the building. At paragraph 6 he directed himself that the main considerations which he needed to address were (i) whether as a matter of fact and degree the building was a dwelling house and if so, (ii) whether it had been used as a single dwelling house during the relevant four year period prior to the submission of the LDC application. It is to my mind clear that the inspector took the view that, if the building was incapable of use as a dwelling house, then it could not be said to have been used as one. He reminded himself of the provisions of section 171B(2) of the 1990 Act and noted that he had been referred to a number of cases which shed light on the meaning of a dwelling house in that context. He referred in particular to the facts in Gravesham Borough Council v Secretary of State for the Environment & Anr [1982] 47 P & CR 142 and to Backer v Secretary of State & Anr [1982] 47 P & CR 149. He observed that the fact that a building was being lived in was not necessarily decisive in determining whether it was a dwelling house. He reminded himself (at paragraph 9 of the letter) of paragraph 2.81 of Circular 10/97 (Enforcing Planning Control) and of the observation there that people may adapt or use unlikely or unusual buildings or structures as their home. He observed that the courts had held that although there was no definition of what was a dwelling house:

“It is possible for the reasonable person to identify one when he sees it.”

He went on (at paragraph 11) to direct himself that the question whether the building was a single dwelling house was to be considered by reference both to its use and to its physical attributes. At paragraphs 12 and 13 of the decision letter the inspector noted:

“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 hole 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 dwelling house. 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.”

At paragraph 15 he concluded:

“As a matter of fact and degree that the appeal building is not a dwelling house.”

The inspector observed (at paragraph 16) that much of the evidence at the inquiry concerned the length of time that the appellant had lived in the building; but that, since he had concluded that the building did not have the physical attributes of a dwelling house, it could not be made into one simply by being lived in for a period. He found support for that view in the use which, as he held, the applicant had made of a converted lorry which had been on the site until 2003. he reviewed that matter at paragraphs 18 to 20 of the decision letter.

The applicant applied to the High Court under section 288(1)(b) of the 1990 Act. It is important to keep in mind that an application to the High Court is limited to a challenge of issues of law. For the application to succeed in the context of the present case, it was necessary to persuade the court that the inspector had misdirected himself as to the test to be applied in relation to the meaning of use as a single dwelling house.

The application under section 288 came before McCombe J on 29 June 2006. He dismissed the application for reasons set out in a judgment handed down on 14 July 2006, [2006] EWHC 1711 (Admin). At paragraph 7 of his judgment the judge noted that the inspector had directed himself that the question whether the building is a single dwelling house must be constituted by reference both to its use and its physical attributes; and he noted that there was no dispute before him between the parties as to the correctness of that approach. He then referred to paragraphs 12 and 13 of the decision letter and to the inspector’s conclusion at paragraph 15 of that letter. At paragraph 10 of his judgment the judge noted the basis on which the challenge to the inspector’s decision was advanced:

“10.

Within the broad parameters of the points of challenge to the Inspector’s decision, Mr Watkinson [who then appeared as counsel for the applicant] submits that the Inspector reached his conclusions on the question simply by reference to the physical attributes of the building, without 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 dwelling house’.”

Uratemp Ventures Limited v Collins [2001] UKHL 43 had not, I think, been cited to the inspector. That was a decision of the House of Lords on the provisions in section 11 of the Housing Act 1988: that is to say it was a decision on the circumstances in which a tenancy was one under which a dwelling house was let as a separate dwelling. The judge was not persuaded that observations -- albeit made by the House of Lords but made in the context of the regime for the security of tenure under the Housing Act 1988 -- could have been intended to be determinative in the very different context of the statutory regime applicable to planning control under the 1990 Act.

At paragraph 21 the judge said this:

“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.”

On that basis he rejected the propositions which had been formulated on behalf of the applicant and set out under subparagraphs (2) and (4) in paragraph 12 of his judgment: namely that the cases demonstrate a shift from consideration in the round to a test emphasising whether the building affords to those who use it the facilities required for day-to-day private domestic existence and that the proper test was to place equal emphasis on use and intended use as a dwelling as the dominant criteria. Plainly the judge had in mind that, in order to find that there had been a change of use of a building to use as a single dwelling house, it was necessary to ask oneself whether the building was capable of being used as a dwelling house. If a building were not capable of being used as a dwelling house, then there could not be a change of use to use of that building as a dwelling house. In asking whether the building was capable of being used as a dwelling house it was clearly necessary to have regard to its physical characteristics. To state the obvious, not every structure that can be used as a home, or is used as a home, is capable of being used as a single dwelling house.

The judge went on, at paragraphs 22 and 23, to explain why he rejected the criticism of the inspector’s approach to the test which he had to apply. The test, as I have said, was a test which had been accepted on behalf of the applicant both before the inspector and before the court. The criticism advanced was as to the way the inspector had applied the test. The judge said this:

“22.

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 dwelling house. 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 ‘dwelling house’ 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 dwelling house. 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 ‘dwelling house’ even with the Claimant’s modest requirements.”

He concluded that:

“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.”

So he dismissed the application under section 288.

It seems that no application for permission to appeal was made to the judge on 14 July 2006, when the judgment was handed down. Paragraph 2 of the order, which had been agreed between counsel, provided for the applicant to make such an application by written submissions to be filed at court not later than 7 August 2006; and the order went on to provide that the Secretary of State might file written submissions in response.

The applicant sought permission to appeal in writing on 7 August 2006. The Secretary of State responded by written submissions on 18 August 2006. Accordingly, when the question of permission came to be considered, the judge and subsequently this court was in the unusual -- or comparatively unusual -- position of having not only the written reasons of the disappointed applicant as to why permission should be granted, but also the reasons of the proposed respondent as to why it should not be granted.

For reasons which remain unexplained the application for permission to appeal did not come before the judge until 14 March 2007. That is some seven months or so after it had been filed. The judge refused permission noting as his reasons:

“I do not consider that the appeal has any real prospects of success, essentially for the reasons set out in the First Defendant’s response to the Claimant’s submissions.”

The applicant applied to this court by appellant’s notice filed within the time limited by the order. In refusing the application on the papers Laws LJ noted as his reasons:

“No arguable error of law. The judge was right to refuse permission ‘for the reasons set out in the First Defendant’s response to the claimant’s submissions’.”

He referred to the pages in the bundle where that response could be found.

It can be seen that both the judge and Laws LJ incorporated the submissions of the Secretary of State -- which are set out under effectively five paragraphs -- as their reasons for refusing permission. Where an application is refused on the papers paragraph 4.14A of the practice direction supplemental to CPR 52 requires the appellant’s advocate to file a brief written statement (a) to inform the court and the respondent of the points which he proposes to raise at the hearing and (b) to set out his reasons why permission should be granted notwithstanding the reasons given for the refusal of permission. In the present case the statement filed under that paragraph on 14 June 2006 cannot be regarded as providing any assistance: in particular it cannot be regarded as providing the assistance which the rule envisages such a statement will provide. Other than setting out the history and containing an application that permission to appeal be granted, the statement contains only this paragraph:

“It is respectfully submitted that Laws LJ was wrong to conclude that McCombe J’s decision disclosed no arguable error of law. The applicant maintains that his grounds for appeal have a realistic prospect of success for the reasons set out in his skeleton argument.”

But that had been the skeleton argument which was before Laws LJ.

The purpose of the requirement in paragraph 4.14A is to assist the court which is faced with a renewed oral application. It is important to keep in mind that a renewed oral application is not an appeal from the decision of the member of this court who has refused the application on the papers. The purpose of an oral application is to enable this court to reconsider that decision in the light of oral submissions. The oral submissions may serve to identify the points on which particular emphasis is placed and to give the court the opportunity of considering whether on the paper application the judge had those points in mind. The oral hearing provides the opportunity to consider whether the points had been sufficiently identified before the single judge; or whether there is some answer to the reason which he gave for rejecting them which had not been put to him on the papers so that he did not have a chance to consider it. If the matter were an appeal at large, the position would be different. But it is not: it is a reconsideration, and the court requires the assistance that the practice direction is intended to provide. Simply to assert that both the judge and the single Lord Justice were wrong does not provide that assistance.

The effect, in this case, is that the application has not proceeded by any analysis of the reasons which both the judge and Laws LJ gave for taking the view that there was no real prospect of success on an appeal in this matter. It is said only that the inspector and the judge misdirected themselves by looking at the attributes of the building and asking whether the building was a single dwelling house: that they failed properly to appreciate that a building which did not look like a dwelling house, and which did not have some of the attributes that one might expect a dwelling house to have, could nevertheless be used as a dwelling house. But that, of course, was just the point that the inspector had identified at paragraph 9 of his decision letter when he observed that people may adapt or use unlikely or unusual buildings or structures as their home but that it was possible to identify what was a dwelling house when one went to have a look at it.

Although, perhaps, not expressed in quite these terms, it seems to me plain that the inspector had well in mind that a change of use to use as a single dwelling house could not take place if the building was not capable of being used as a single dwelling house; and in considering whether it was capable of being used as a single dwelling house, it was, indeed, necessary to look at its physical attributes as well as the use that was being made of it having regard to the limitations imposed by its physical attributes.

We have been taken to passages in the September 2006 monthly bulletin to the Encyclopaedia of Planning Law and Practice. The editors express the view that it was a pity that no one (inspector, counsel or judge) had chosen to take, as a starting point for discussion, the actual words of section 171B(2) in the 1990 Act. That criticism seems to ignore the fact that both the inspector (at paragraph 7 of the decision letter) and the judge (at paragraph 3 of his judgement) set out the terms of that section. Both the judge and the inspector plainly had the words of the section well in mind. They plainly had well in mind, also, that the relevant question was whether there had been a change of use of a building -- or more particularly this building -- to use as a single dwelling house. The editors go on to observe that the inspector, counsel and the judge all seemed to be under the impression that the primary question was whether the building contained the attributes of a dwelling house; and, if it did not, the inspector was entitled to find it not a dwelling house. It is pointed out that that is not the test posed by the Act. There has been a change of use to use as a dwelling house. That test poses the question whether the building is capable of being used as a dwelling house: if not, there cannot have been a change of use to that use. Both the inspector and the judge appreciated that. The criticism has been taken in (as part of note P171B13) to the Encyclopaedia itself. It is said there that the court put a gloss on the section that appears to be unjustified; namely, the building that is used as a dwelling house should also have the attributes nowadays considered normal for dwelling houses. That does not seem to me to be a fair reading of either the inspector’s decision or the judgment.

To my mind this it has not been shown that any of the reasons set out by the respondents in their note that their response of 18 August 2006, and adopted by both the judge and Laws LJ, are not conclusive. I am not persuaded that an appeal would have any real prospect of success. So the application, in my view, should be refused.

I agree.