Keeley, R (On the Application Of) v Canterbury Crown Court

J U D G M E N T

1. MR JUSTICE COLLINS: This is an application for judicial review of a decision of the Canterbury Crown Court which was reached on 4th November 2002.

2. The background is this. On 4th March 2002 Canterbury City Council served a notice under section 215 of the Town and Country Planning Act 1990 on Mr Keeley in respect of his home at 20 Albion Lane, Herne Bay in Kent. The reasons for issuing the notice were said to be that the visual amenity of the area was adversely affected by the condition of the land, which was untidy because vehicle body panels, vehicle parts, vehicle spares, tyres, metal containers, plastic containers, scrap motor bikes, boats and caravans were kept on the land. The requirement was to remove all vehicle panel bodies, vehicle parts, vehicle spares, tyres, metal containers, plastic containers, scrap motor bikes, boats and caravans from the land.

3. The power to serve such a notice arises under section 215(1) of the 1990 Act which provides:

"If it appears to the local planning authority that the amenity of a part of their area, or of an adjoining area, is adversely affected by the condition of land in their area, they may serve on the owner and occupier of the land a notice under this section.

(2) The notice shall require such steps for remedying the condition of the land as may be specified in the notice to be taken within such period as may be so specified."

The period specified in this case by the council was 1 month.

4. Section 217 provides for a right of appeal against the service of such a notice to the Magistrates' Courts. Section 218 gives the right to appeal to the Crown Court from the magistrates' decision.

5. Section 217(1) is the important section for our purposes. It reads as follows:

"A person on whom a notice under section 215 is served, or any other person having an interest in the land to which the notice relates, may, at any time within the period specified in the notice as the period at the end of which it is to take effect, appeal against the notice on any of the following grounds-

(a) that the condition of the land to which the notice relates does not adversely affect the amenity of any part of the area of the local planning authority who served the notice, or of any adjoining area;

(b) that the condition of the land to which notice relates is attributable to, and such as results in the ordinary course of events from, the carrying of operations or a use of land which is not in contravention of Part III;

(c) that the requirements of the notice exceed what is necessary for preventing the condition of the land from adversely affecting the amenity of any part of the area of the local planning authority who served the notice, or of any adjoining area;

(d) that the period specified in the notice as the period within which any steps required by the notice are to be taken falls short of what should reasonably be allowed."

The magistrates dismissed the appeal and the Crown Court dismissed Mr Keeley's further appeal against that dismissal, given that it extended this time for compliance.

6. He relied on all the grounds under section 217(1), but the one which he submits is most in play in respect of this application is section 217(1)(c).

7. The point he makes is that the requirement to remove all the motor cycles, boats and caravans from the land means that he is unable to use it in such a way as would normally be permitted as an adjunct to its use as a dwelling-house. Thus, for example, it would normally be appropriate for a motorcycle or more than one (if there were more than one members of a family who owned a motorcycle) to be kept outside the house. Equally, a caravan would normally be permitted to be parked on someone's land provided, of course, there was room for that to be done. There is, Mr Keeley tells me, plenty of room, because his land amounts to about a third of an acre. In addition, in Herne Bay there are many who own boats and they keep their boats on their property if there is room, and will take them on a trailer to the beach in order to make use of them if they wish. There are, as I understand it, some three boats and two canoes which at present remain on his property.

8. He makes the point, too, that the property is surrounded by a 6 foot fence and normally, unless of course the gates are open, these items would not be visible to anyone around and certainly would not affect adversely the visual amenity in the area.

9. The Crown Court heard evidence from him and from officers of the council and found, as a fact, that the complaint was made out. Mr Keeley complains that the photographs upon which the Crown Court relied were taken at a time when he was in the process of removing what can properly be regarded as some of the junk on the land and gave a false impression. That, I am afraid, I cannot go into because that was a finding of fact which the court was entitled to reach on the basis of the evidence before it. But there is no question but that it was the presence of the junk - if I may put it that way - on the land which led to adverse views being taken initially by the council and latterly by the court.

10. But the complaint that Mr Keeley makes is that the requirement to remove all the boats, motor bikes and caravans means that he is precluded from using his property reasonably as he would normally be entitled to do. To an extent the council has recognised that because, in a letter of 20th January 2003, it wrote to Mr Keeley in these terms:

"I can confirm that Canterbury City Council will not regard the above Notice to be in breach, if the items that remain on the land are those which are incidental to the normal residential use and reasonable enjoyment of the property by any person residing at and using the dwelling house as his or her home. This would be based on the authorised planning use of the land at the date of an inspection. Presently the authorised planning use of the land is one dwelling house with residential curtilage."

11. Mr Keeley complains that, if that qualification is not written into the order, then he will find himself, if there is an issue as to whether any particular item should or should not be removed, in the position of being able to be prosecuted on the basis of an order which required everything to be removed and the magistrates before whom the prosecution was brought would be unable to do other than convict him on the basis of the absolute nature of the notice.

12. That is not entirely correct because, if the council has, as it indeed has, indicated that it would not regard it as a breach of the notice if items which were incidental to normal residential use and reasonable enjoyment were on the land, it would arguably be an abuse of the process for it then to seek to prosecute. But, Mr Keeley rightly submits that it would to an extent give the council a whip hand in any negotiations about what could properly be left on the land. He submits that there is no reason why that qualification should not be written into the order, so that any court before whom a prosecution is brought would know what the reality was behind this order. Equally, it would mean that anyone to whom Mr Keeley chose to sell or anyone in the council who was minded to take any sort of action would equally know that it could only be taken if the qualification was contravened.

13. Mr Keeley suggested that some such qualification ought to be written into the order and the wording he suggested was that as follows:

'To remove body panels, scrap motorcars, vehicle spares and tyres and limit the boats and caravans and motor bikes to what is reasonable for normal residential use, taking into consideration the size and the number of people living at the residence and the impact of any boats or motor bikes and caravans, if visible, would have on the area.'

14. The council, which has not appeared before me, has submitted an acknowledgment of service in which it says that the form of words proposed would make the notice extremely difficult if not impossible to enforce and that the council had to look at the totality of the items on the land.

15. The impossibility or difficulty of enforcement applies equally, as it seems to me, to the council's indication that it does not propose to regard as a breach of the order the items that remain on the land incidental to the normal residential use. The question will always be: what is incidental to the normal residential use? What, for some, might seem to be so incidental, to others, might seem to go beyond.

16. Mr Keeley submits that, in those circumstances, if there is an issue, it should be for the court to determine it and not for the council to impose its will, if it was acting unreasonably. It seems to me that there is force in that submission.

17. The Crown Court was, of course, entitled to find, as it did, that section 215 was properly used and that notice in so far as it required the removal of a number of items was correct. The Crown Court clearly took the view that, looked at overall, what was on the land was within section 215. I cannot go behind that finding of fact. Nor, to be fair, does Mr Keeley suggest that I can.

18. But that is not the end of the story because, when it comes to the question of removing, it does seem to me that there is considerable force in Mr Keeley's submission that the Crown Court has acted unreasonably in requiring that all the items, in particular all the caravans, boats and motor bikes, should be removed because it is perfectly clear, he submits, and indeed that was the evidence that he gave to the Crown Court, that some of those items are reasonably put on his land as an adjunct to the use of the property.

19. The only question that I have to decide is whether in the circumstances the requirement to remove all is so unreasonable that it requires to be quashed and amended. I have already said that the council have accepted that there is an element of excess in the notice if it is read literally. That being so, since this is the order which will be brought before the magistrates, if there is any alleged breach, the order itself should, in my view, be clarified in order to make it apparent that it does not extend absolutely, but it is limited in the way that the council accept, and that Mr Keeley submits should be appropriate.

20. I have not had any representations from the council which assist in the form of words which is appropriate. But, as it seems to me, the wording proposed by Mr Keeley is not unreasonable. I would amend it slightly. I would amend it to an order: 'that he remove all body panels, scrap motor parts, vehicle spares and tyres and limit any boats, caravans and motor bikes to what is reasonable for normal residential use, taking into consideration the size and the number of people living at the residence and the impact that any boats, motor bikes and caravans, if visible, would have on the area.' It seems to me that with those small amendments what he proposes is reasonable.

21. Rather than incur extra expense in sending this matter back it seems to me that within CPR 54.19(3) it is appropriate for me to take the decision and to amend the order accordingly. However, it does seem to me that it would in the circumstances not be unreasonable to allow the council to make any written submissions, which they must serve on Mr Keeley, about whether any amendment to that form of words should be appropriate because, as I say, I have made that amendment in the absence of them appearing and it may be that there is something that I have missed in the form of words that I have indicated. In fact, I would be surprised if there were any reasonable objection to that wording but, as I say, I will give the council the opportunity to submit that a different form, which conveys the same message is more appropriate. It must pass that by Mr Keeley. If he agrees, then no doubt I can make that order accordingly. If he does not agree, I will decide on paper whether the order I have suggested is the one that should stand. The council must do that within 14 days. In the meantime of course, the effect of the order will remain suspended.

22. THE CLAIMANT: Thank you very much.

23. MR JUSTICE COLLINS: Mr Keeley you have won. Have you incurred any expenses in coming here?

24. THE CLAIMANT: This is my fifth visit, three to here.

25. MR JUSTICE COLLINS: It is really rail fares or whatever you....

26. THE CLAIMANT: I work. I work.

27. MR JUSTICE COLLINS: What are you working as?

28. THE CLAIMANT: Self-employed.

29. MR JUSTICE COLLINS: Have you lost work as attending court. You are self-employed as?

30. THE CLAIMANT: An electrician.

31. MR JUSTICE COLLINS: If you could show that you have lost work and obviously rail fares, that sort of thing, you would normally be entitled to them and you would be entitled at least in theory to some extra costs involved in, if you having incurred any, looking up the law and so on. The costs of finding the papers and the court fees.

32. What you must do, if you want to apply for costs - I am not necessarily encouraging you because it may be that you think it is best to let sleeping dogs lie, in that regard - but if you want to apply for costs you are entitled to do that, but you must do that in writing, set out in writing, itemise and, if possible, provide some evidence of support for what you say you have lost in the way of work and obviously fares and that sort of thing and any time spent in looking up the law and the court costs and so on. Serve it on the other side.

33. THE CLAIMANT: The council or Crown Court?

34. MR JUSTICE COLLINS: The council not the Crown court. They are the ones who have taken the active part in this. On the council and, because again, they have to have an opportunity to say no, on both principle and amount. As I have said, I am not encouraging you particularly to do that but you are entitled to, on the face of it, on costs, because you effectively have succeeded in achieving what you wanted to achieve. So what I shall do is to order that in principle the council pay your reasonable costs subject to their right to object, which they must do in writing, and subject to you serving on them, within the next seven days, a detailed list or detailed itemised list of amounts. All right.

35. THE CLAIMANT: Thank you very much.

36. MR JUSTICE COLLINS: Well you have done well. I am bound to say, when I read these papers I was minded not to give you any relief. I did not think you would succeed but you have talked me round.

37. THE CLAIMANT: Thank you very much.