Stewart, R (on the application of) v First Secretary Of State For Environment & Anor

MR JUSTICE JACKSON: This judgment is in eight parts. Namely, Part I: Introduction, Part II: The Facts, Part III: The Present Proceedings, Part IV: The First Ground of Claim, Part V: The Second Ground of Claim, Part VI: The Third Ground of Claim, Part VII: The Fourth Ground of Claim, Part VIII: Conclusion.

This is an application by Miss Catherine Stewart under section 288 of the Town and Country Planning Act 1990 for an order quashing --

(a) the decision of a planning inspector dated 6th February 2004; and

(b) a certificate of lawfulness issued by the planning inspector on the same date.

The Claimant contends that the planning inspector ought to have allowed her appeal in full rather than in part. The Defendants to this application are (1) the Secretary of State for the Environment, and (2) the Cotswold District Council. In this judgment I shall refer to Miss Catherine Stewart as “the Claimant”, I shall refer to the First Defendant as “the Secretary of State” and I shall refer to the second defendant as “the Council”.

It should be noted that, despite her name, the Claimant is not a relation of Mr Gerald Stewart who features in this case and who is central to Part V of this judgment. Although there are two Defendants to the application made by the Claimant, only the Secretary of State has been represented in the present hearing. The Council, in accordance with normal practice, has taken no part in this hearing.

It may be helpful if I begin by reading out some statutory provisions which are relevant to the issues in this case. I shall refer to the Town and Country Planning Act 1990 as “the 1990 Act”. Section 55 of the 1990 Act provides:

“(1)

Subject to the following provisions of this section, in this Act, except where the context otherwise requires, 'development' means the carrying out of building, engineering, mining or other operations in, on, over, or under land, or the making of any material change in the use of any buildings or other land ...

(2)

The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land -- . . .

(e)

the use of any land for the purposes of agriculture or forestry (including afforestation) and the use for any of those purposes of any building occupied together with land so used;”

Section 191 of the 1990 Act provides:

“(1)

If any person wishes to ascertain whether --

(a)

any existing use of buildings or other land is lawful;

(b)

any operations which have been carried out in, on, over or under land are lawful; or

(c)

any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,

he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.

(2)

For the purposes of this Act uses and operations are lawful at any time if --

(a)

no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and

(b)

they do not constitute a contravention of any of the requirements of any enforcement notice then in force ...

(4)

If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application.”

In this judgment I shall refer to a certificate issued under section 191 of the 1990 Act as a “certificate of lawfulness”.

Section 195 of the 1990 Act provides:

“(1)

Where an application is made to a local planning authority for [a certificate under section 191 or 192] and --

(a)

the application is refused or is refused in part ...

the applicant may by notice appeal to the Secretary of State.

(2)

On any such appeal, if and in so far as the Secretary of State is satisfied --

(a)

in the case of an appeal under subsection (1)(a), that the authority's refusal is not well-founded ...

He shall grant the appellant [a certificate under section 191 or, as the case may be, 192] accordingly or, in the case of a refusal in part, modify the certificate granted by the authority on the application.

(3)

If and so far as the Secretary of State is satisfied that the authority's refusal is ... well-founded, he shall dismiss the appeal.”

Section 288 of the 1990 Act provides:

“(1)

If any person --

(a)

is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds --

(i)

that the order is not within the powers of this Act, or

(ii)

that any of the relevant requirements have not been complied with in relation to that order; or

(b)

is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds --

(i)

that the action is not within the powers of this Act, or

(ii)

that any of the relevant requirements have not been complied with in relation to that action,

he may make an application to the High Court under this section . . .

(5)

On any application under this section the High Court-- . . .

(b)

if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action.”

Having read out the relevant statutory provisions, I can now turn to the facts of the present case.

Fernhill Cottage stands near the centre of Caudle Green, which is a small village in the Cotswolds. Fernhill Cottage formerly had the ordnance survey reference OS 174. On the western side of Fernhill Cottage stands a copse, which formerly had the reference OS 173. I shall refer to this as “the copse”. On the eastern side of Fernhill Cottage is a lane which runs northwards to the village of Brimpsfield. I shall refer to this as “the lane”. On the eastern side of the lane, and opposite Fernhill Cottage, there is a piece of land which formerly had the reference OS 175. This piece of land is roughly the shape of an oblong. I shall refer to it as “the oblong strip.” On the eastern side of the oblong strip there runs a stream. Beyond the stream there lies a very long and narrow piece of land call Longmeadow.

In earlier times, Fernhill Cottage, the land around it, and much else besides, formed part of the Syde Estate. In 1946, following the death of its owner, the Syde Estate was broken up into lots and sold by auction. Lot 7 comprised Fernhill Cottage and the oblong strip. Lot 6 comprised a group of four cottages and also the copse. Both Lot 6 and Lot 7 were purchased by a Mrs Williams. On 18th April 1947, Mrs Williams sold these properties to one Sidney Pyle. Some three months later, on 1st August 1947, Mr Pyle sold Fernhill Cottage, the copse, and the oblong strip to one Robert Peachey Evans. Mr Evans remained the owner of all those properties from 1947 until his death in 1978.

Mr Evans' period of ownership falls into two phases. During the first phase, namely 1947 to 1967, Mr Evans and his wife lived elsewhere. Mr Evans let Fernhill Cottage and the oblong strip to a tenant, Mr A E Holder, and subsequently to another tenant, Mr Manders. The second phase of Mr Evans' ownership ran from 1967 to 1978. During this latter phase, Mr Evans and his wife themselves lived in Fernhill Cottage.

It can be seen, therefore, that Mr Evans owned the copse, Fernhill Cottage and the oblong strip for a total period of some 31 years. In the 1950s Mr Evans installed an septic tank on the oblong strip immediately behind a storage building. That storage building lay approximately one third of the way from the front of the oblong strip to the back of the oblong strip. In 1961 Mr Evans applied for planning permission to erect a Dutch barn on the oblong strip in place of the old storage building, which had apparently been destroyed by fire. The planning application was dated 14th October 1961. In section 4 of that application, Mr Evans stated that the purpose of the Dutch barn was “for storage of hay etc”. In section 5, Mr Evans stated “Old building destroyed by fire used for storage”. On 30th November 1961, the Gloucestershire County Council granted planning permission for that development. Mr Evans duly had a Dutch barn built in accordance with that permission.

Mr Evans died in 1978. His executors were his son, Philip Evans, and his daughter, Mrs Catherine Melhado. On 13th June 1979 the executors sold Fernhill cottage, the copse and the oblong strip to one Mark Edwin Weston. During the next 13 years Mr Weston or his tenant, Mark Curtoys, or members of Mr Weston's family occupied these properties. The 13-year period from 1979 to 1992 has been referred to in these proceedings as “the Westons' time”. I shall use the same term.

In January 1992 Mr Weston sold the copse, Fernhill Cottage and the oblong strip to the Claimant. At this point I should say a little more about the oblong strip as it was in January 1992. Towards the southern end of the oblong strip there stood the Dutch barn which Mr Evans had erected in or about January 1962. Immediately to the north of the Dutch barn lay a strip of land covered with gravel, and also the septic tank.

The Claimant has lived in Fernhill Cottage ever since January 1992. Unfortunately, the Claimant has certain disabilities resulting from a car accident in 1985 and she requires the services of a carer. The carer lives in Fernhill Cottage together with the Claimant. The need for an additional carer has recently been foreseen. It is proposed that the additional carer should live in a mobile home placed on the oblong strip of land. In August 2002 the Claimant applied to the Council, pursuant to section 191 of the 1990 Act, for a certificate of lawfulness in respect of the use of the oblong strip as part of the residential curtilage of Fernhill Cottage. For the purposes of dealing with this application, the Council's officers divided the oblong strip into two areas. They called the southern part “Area 1”. They called the central and northern part of the oblong strip “Area 2”. By reference to this terminology, the Dutch barn stands in the north-west corner of Area 1, the strip of land covered by gravel and the septic tank lie in the south-west corner of Area 2.

On 23rd December 2002, the Council issued its decision. It granted a certificate of lawfulness for the use of Area 1 as part of the residential curtilage of Fernhill Cottage. The Council refused to grant such a certificate in respect of Area 2.

The Claimant was aggrieved by the Council's refusal to grant a certificate in respect of Area 2. Accordingly, she appealed to the Secretary of State pursuant to section 195 of the 1990 Act against that refusal. The Secretary of State appointed an Inspector, Mr J G Roberts, to hear and determine the appeal. Mr Roberts received a large amount of documentary evidence. He received written and oral evidence from witnesses who were familiar with Caudle Green and its past history. He visited the site on 11th December 2003. He held a public inquiry on 9th December and 12th December 2003. Mr Goodall, a solicitor with wide experience of planning matters, represented the Claimant at this hearing. The Inspector took time to consider the evidence and the legal submissions made.

On 6th February 2004 the Inspector issued his decision. He allowed the Claimant's appeal to a limited extent only. The Inspector accepted that a four metre wide strip of land at the south-west corner of Area 2 was lawfully being used as part of the residential curtilage of Fernhill Cottage. This was the strip of land in which the septic tank and the ground covered with gravel lay. However, the Inspector refused the Claimant's appeal in respect of the remainder of Area 2. The Inspector issued a further certificate of lawfulness in accordance with his decision. On the plan annexed to this certificate, the four metre wide strip of land in the south-west corner of Area 2 is hatched in black. For ease of reference I shall refer to this strip of land as “the black land”. I shall refer to the remainder of Area 2 as “Area 2A”.

The Inspector's reasoning and conclusions are set out in paragraphs 18 to 30 of his decision. In these passages the Inspector refers to Fernhill Cottage as parcel 174, the oblong strip as parcel 175 and the copse as parcel 173. This passage of the inspector's written decision reads as follows:

“Conclusions

(18)

The limited evidence available suggests, on the balance of probability, that parcel 174, comprising Fernhill Cottage and its immediate gardens to the west of the lane, was physically and functionally distinct from parcel 175 on 1st July 1948 (the Appointed Day). The former was in use as a dwelling house, the garden being incidental or ancillary to this use. The lawful use of parcel 174 was as a dwelling house. Parcel 175 was used, and had been used, possibly intermittently, for agriculture. There is no evidence that, on the balance of probability, incidental or ancillary domestic use of this parcel, or any part of it, amounted to a primary use of that planning unit before Mr Evans took occupation in 1967. Its lawful use was for agriculture.

(19)

From then until 1979 the unit of occupation was very much larger. Parcel 174 was the dwelling house and garden. This remained physically and functionally distinct and probably remained a separate planning unit. Mr Evans used Area 1 for purposes associated with the use of the Cottage as a dwelling but, but also for purposes ancillary or incidental to agriculture. The evidence suggests that this could be distinguished clearly from Area 2, both physically and functionally. Activities related to domestic use of Fernhill Cottage seem to have been confined to the barn and the land to the south of it, ie, within Area 1. The septic tank was in Area 2, but in rural areas they are commonly sited outside the area used as domestic garden. Area 2 progressively became unused, but not other use supplanted the lawful agricultural use of this area. No material change of use of Area 2 took place. It remained part of a larger planning unit, including Longmeadow and other fields, the lawful use of which was for agriculture.

(20)

By contrast the use of Area 1 had changed materially during this period from agriculture to the mixed or composite uses for agriculture and for purposes incidental or ancillary to the use of Fernhill Cottage as a dwelling house. However, even if this material change had taken place more than 10 years before the sale of the property to Mark Weston, it was neither established nor lawful. The 10-year rule was introduced by the 1991 Act and did not come into effect until 27th July 1992. Until then established uses which had begun before the beginning of 1964 in breach of planning control, though immune from enforcement action, remained unlawful. Similarly the operations of installing the septic tank and laying a hard surface which was not required for agriculture, which probably fell within the definition of development, became immune from enforcement action but were not lawful either.

(21)

The Westons occupied parcels 173, 174 and 175, plus Longmeadow, from 1979 until 4th January 1992. Parcel 174 remained the dwelling house and garden. Area 1 continued, throughout this period, to be used for purposes incidental or ancillary to the use of the Cottage as a dwelling house, but agriculture ceased as a primary use of this land. There is also evidence of the use of the strip of land immediately to the north of the barn being used for similar purposes to Area 1. On the balance of probability it seems to me that during Mark Weston's time this area, together with Area 1 and parcel 174, became a single planning unit, the primary use of which was as a dwelling house. A material change of use of the strip of land at the rear of the barn occurred in breach of planning control at that time.

(22)

The remainder of Area 2 was used only casually, and intermittently or occasionally. It was largely ignored by the Westons, became neglected and went to scrub. In my opinion its use for purposes which were incidental or ancillary to the use of Fernhill Cottage as a dwelling house was not sufficient to trigger a material change of use of this land. Either it remained part of the planning unit which included Longmeadow, or it was a separate one. In either case the lawful use remainder agriculture. Even if such use could have been said to have led to the incorporation of the whole of Area 2 into the domestic planning unit more than 10 years before the property passed to the appellant on 4th January 1991, such a change of use would not have been lawful at that time.

(23)

It is necessary, therefore, to reach conclusions on the use of parcel 175 during the 10-year period which ended on 27th July 1992, the date on which the 10-year rule, relating not only to immunity from enforcement action but the acquisition of lawfulness, came into force. From the evidence before me I consider it probable that use of Area 1 for purposes incidental or ancillary to the use of Fernhill Cottage as a dwelling house became lawful on 27th July 1992 because of the use made of it by the Westons during the preceding 10 years, without significant interruption, and continued by the appellant until that date. I also conclude, again on the balance of probability, that the same use had become lawful on the strip of land immediately to the north of the barn. This seems to have been used in a similar manner to Area 1 at least since the early years of the Westons' occupation. The clearance and other works undertaken by the appellant in effect continued this use, and it has not been extinguished subsequently by abandonment, further material change of use or a change in the planning unit thereafter.

(24)

The septic tank was installed in the 1950s. It became lawful on 27th July 1992 when the 1991 Act came into effect. So did the laying of the hard surface on the strip of land to the north of the barn, because this had occurred before 27th July 1988. The additional operations associated with the clearance work of April to June 1992 were in breach of planning control at the time, because by then the 1991 Act had not come into effect, but as these operations took place more than 4 years before 16th May 2003 they had acquired lawfulness by that date.

(25)

However, I consider that the evidence is insufficient to demonstrate that a material change of use of the remainder of Area 2 took place before 27th July 1982 and had continued without significant interruption, until 27th July 1992. It is not a question of the perception of the occupiers, but of actual use, which was not sufficient in nature or intensity to constitute a material change. The use for purposes incidental or ancillary to the use of Fernhill Cottage as a dwelling house did not become lawful on that date. This would have been so even if the land had, in fact, been used for such purposes for a continuous 10-year period by Mr Evans beforehand.

(26)

The application with which I am concerned was not made until 16th May 2003. Therefore I need to decide whether the use of the remainder of Area 2 for purposes incidental or ancillary to the use of Fernhill Cottage as a dwelling house began as a primary use of the land before 27th May 1993 and continued thereafter, without significant interruption, until the date of the application.

(27)

In effect the appellant had purchased more than one planning unit. One, comprising parcel 174, Area 1 and the strip of land immediately to the north of the barn was a single planning unit. The lawful use of the first two parts of this was as a dwelling house at the date of purchase; the third piece became lawful on 27th July 1992 because of its previous use. The other planning unit or units were the sloping area of scrub and trees on Area 2 and Longmeadow.

(28)

The appellant's use of Area 2 north of the hard surfaced area next to the barn has been limited, more through unfortunate infirmity than intention, but limited nonetheless. I understand and accept that she can make only very limited use of the garden around the Cottage also, for the same reason. The act of observing Area 2 and the life within it, when she is well enough to go there, in the shade if the sun is hot, in the shelter of her camper van if the weather is inclement, and in privacy, is very important to her. The presence of another trusted person, the sleeping accommodation for whom is intended to be the mobile home, may well be increasingly necessary if the appellant is to continue to live in the home that she loves with the maximum independence that her condition will allow.

(29)

However, LDC appeals fall to be determined on matters of fact and law, and these matters only. Though the appellant has used the land continuously throughout her occupation of Fernhill Cottage, I consider, on the balance of probability, that the nature and intensity of the use was not sufficient to cause a material change of use of that part of Area 2 which lies to the north of the strip of land adjoining the barn before 27th May 1992 which continued, without significant interruption, until the date of the application.

(30)

I will therefore grant a Certificate for the use of the strip of land (extending 4m to the rear of the barn and including the site of the septic tank) for parking a camper van and other uses which are incidental or ancillary to the use of Fernhill Cottage as a dwelling house, but refuse to grant one in respect of any uses which amount to development on the remainder of Area 2. This would not, of course, preclude the appellant from using or enjoying this land in any way which does not amount to development.”

There is one other part of the Inspector's decision to which I should refer, namely paragraph 8. In that paragraph the Inspector concluded that even if Area 2 fell within the same planning unit as Fernhill Cottage, nevertheless, stationing a mobile home there would not be incidental to the use of Fernhill Cottage as a dwelling house. This passage in paragraph 8 is, as it seems to me, obiter. It is not part of the reasoning which leads to the Inspector's decision in relation to lawfulness.

The Claimant was aggrieved by the Inspector's decision. The Claimant was aggrieved by the limited extent of the certificate of lawfulness which the Inspector issued. Accordingly, the Claimant has commenced the present proceedings in order to challenge both the Inspector's decision and his certificate of lawfulness.

By claim form issued on 19th March 2004, the Claimant applied to the High Court, pursuant to section 288 of the 1990 Act, for an order quashing the Inspector's decision.

The grounds of claim have evolved since their original formulation in the claim form. The Claimant's skeleton argument, served on 13th July 2004, marks the first stage of the evolutionary process. The second stage came in the Claimant's oral submissions. I make no criticism of this. Mr Levy, on behalf of the Claimant, has been striving to structure and present the Claimant's arguments in the most convenient and orderly manner. In particular, the boundary line between ground one and ground two has progressively shifted, so that ground one now becomes the receptacle for the Claimant's principal arguments and ground two is limited to a number of submissions about the evidence of one particular witness, Mr Gerald Stewart.

I would summarise the claimant's grounds of claim in their finally developed form as follows:

(1) The Inspector erred in holding that Area 2A was a separate planning unit, which in 1992 had an established use for agriculture.

(2) The inspector erred in attaching weight to the second paragraph of Mr Gerald Stewart's proof of evidence.

(3) The inspector erred (at paragraph 8 of his decision) in asserting that the use by a carer of a mobile home on Area 2 would not be incidental to the use of Fernhill Cottage as a dwelling house.

(4) The inspector erred (at paragraphs 28 to 29 of his decision) in concluding that the Claimant's activities on Area 2A since 1992 had not given rise to a material change of use.

These then are the four grounds of claim which I must address. They were duly argued by both counsel at the hearing of this application the day before yesterday. Unfortunately, a photograph which was the focus of much argument by both counsel was not available. Instead, counsel and I were working from most unsatisfactory photocopies of that photograph. I therefore asked to see the original photograph before giving judgment in this case. I received the original photograph at 6 pm yesterday evening, together with counsel's written comments on that photograph. I have examined the photograph carefully overnight and I have considered counsel's written comments on the photograph. Thus, I am in a position this morning to give my decision on each of the claimant's four grounds of claim.

Both counsel are agreed that the principles which should be applied in identifying a separate planning unit are those set out in Burdle v Secretary of State for the Environment [1972] 1 WLR 1207. Bridge J (with whom Lord Widgery CJ and Willis J agreed) said this at pages 1212C to 1213A:

“What, then, are the appropriate criteria to determine the planning unit which should be considered in deciding whether there has been a material change of use? Without presuming to propound exhaustive tests apt to cover every situation, it may be helpful to sketch out some broad categories of distinction.

First, whenever it is possible to recognise a single main purpose of the occupier's use of his land to which secondary activities are incidental or ancillary, the whole unit of occupation should be considered. That proposition emerges clearly from G Percy Trentham Ltd v Gloucestershire County Council [1966] 1 WLR 506 where Diplock LJ said at p.513:

'What is the unit which the local authority are entitled to look at and deal with in an enforcement notice for the purposes of determining whether or not there has been 'material change in the use of any buildings or other land'? As I suggested in the course of the argument, I think for that purpose what the local authority are entitled to look at is the whole of the area which was used for a particular purpose, including any part of that area whose use was incidental to or ancillary to the achievement of that purpose.'

But, secondly, it may equally be apt to consider the entire unit of occupation even though the occupier carries on a variety of activities and it is not possible to say that one is incidental or ancillary to another. This is well settled in the case of a composite use where the component activities fluctuate in their intensity from time to time, but the different activities are not confined within separate and physically distinct areas of land.

Thirdly, however, it may frequently occur that within a single unit of occupation two or more physically separate and distinct areas are occupied for substantially different and unrelated purposes. In such a case each area used for a different main purpose (together with its incidental and ancillary activities) ought to be considered as a separate planning unit.

To decide which of these three categories apply to the circumstances of any particular case at any given time may be difficult. Like the question of material change of use, it must be a question of fact and degree. There may indeed be an almost imperceptible change from one category to another. Thus, for example, activities initially incidental to the main of an area of land may grow in scale to a point where they convert the single use to a composite use and produce a material change of use of the whole. Again, activities once properly regarded as incidental to another use or as part of a composite use may be so intensified in scale and physically concentrated in a recognisably separate area that they produce a new planning unit the use of which is materially changed. It may be a useful working rule to assume that the unit of occupation is the appropriate planning unit, unless and until some smaller unit can be recognised as the site of activities which amount in substance to a separate use both physically and functionally.”

Mr Levy for the Claimant submits that the Inspector failed correctly to apply these principles. Alternatively, in attempting to apply these principles, he made findings of fact and reached conclusions which were perverse.

It seems to me that the Inspector had well in mind the principles formulated by the Divisional Court in Burdle (see the crucial passage at paragraphs 18 to 27 of the decision). Indeed, in stating the tests which he applies, the Inspector sometimes uses phrases which are directly taken from Burdle.

Let me now turn to the Inspector's findings of fact and his conclusions. At this stage of the judgment I must pause to remind myself of the proper approach of the court. This court does not step into the shoes of the Inspector and make its own independent assessment of the evidence. I am in no position to do that. The Inspector has visited the site, whereas I have not. The Inspector is a specialist Tribunal, whereas I am not. The Inspector has listened to the oral evidence and seen the witnesses, whereas I have not. Indeed, I do not even have a transcript of the evidence. All that I have is an extract from the notes of the hearing taken by the Claimant and an extract from the notes taken by Miss Philomena Smyth, the Senior Legal Assistant who was assisting Mr Goodall.

The Claimant in this case relies upon section 288(5)(b) of the 1990 Act. She contends that the Inspector's decision “is not within the powers of this Act”. Mr Levy submits, and I accept, that the power of the court was correctly described by Lord Denning MR in Ashbridge Investments Ltd V Minister of Housing and Local Government [1965] 1 WLR 1320. That case concerned a provision in slum clearance legislation which was similar to section 288 of the 1990 Act. At page 1326 G-H, Lord Denning said this:

“Under this section it seems to me that the court can interfere with the Minister's decision if he has acted on no evidence; or if he has come to a conclusion to which on the evidence he could not reasonably come; or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account, or vice versa; or has otherwise gone wrong in law.”

In other words, the Claimant is mounting a form of Wednesbury challenge to the Inspector's findings of fact and conclusions.

Having reminded myself of the legal principles and the extent of this court's powers, I turn to the specific challenges which are mounted.

Mr Levy began by mounting a powerful attack on paragraph 18 of the Inspector's decision. He submits that the evidence simply does not support the Inspector's conclusion as to the state of affairs on 1st July 1948 (the Appointed Day). The Inspector held that, on that date, the whole of the oblong strip was a separate planning unit from Fernhill Cottage. In attacking this conclusion, Mr Levy asked me to examine a photograph which was taken of Fernhill Cottage in 1945 or 1946. The Inspector's conclusions in relation to this photograph are set out in paragraph 11 of his decision as follows:

“An early photograph, said to date from around 1945-6, appears to show Area 2 as grassland. There seems to be a marked difference between the character of parcel 174 (the cottage and its immediate gardens) and parcel 175.”

Mr Levy submits that those findings are wrong and untenable.

Mr Levy further submits that the judge is in as good a position as was the Inspector to interpret the photograph. This latter submission was self-evidently wrong when it was advanced. The Inspector had the benefit of the original photograph, whereas I was only permitted to see a dusky photocopy. Now, however, I have the original photograph in my hands. I am indeed in as good a position as the Inspector to interpret the photograph. My conclusion is that the Inspector was right. There does seem to me to be a marked difference between (a) Fernhill Cottage and its immediate garden, and (b) the oblong strip. I reach this conclusion for four reasons:

(1) The land in front of the cottage is laid out and maintained as a garden. There seem to be vegetables growing there. If I interpret the photograph right, and if it is winter, I think we have some brussel sprouts on the left-hand side as one looks at the photograph.

(2) On the other hand, the land at the front of the oblong strip (which is now called Area 1) is not laid out as a garden at all. It looks like rough grass with some lighter areas which may be bare earth or may be puddles.

(3) The land behind the cottage is somewhat indistinct in the photograph but it appears, to my eye, to be covered with very long grass.

(4) On the other hand, the rear part of the oblong strip (which is now Area 2) appears to have somewhat shorter grass. I reach this conclusion by comparing the tall tufts of grass on the left-hand side just beyond the storage building with the shorter grass elsewhere in that area.

Although I consider that the Inspector was right in his interpretation of the photograph, I do not, in fact, need to go that far. The question which I must address is whether the findings in paragraph 11 are findings which the Inspector was entitled to make. In my judgment, the Inspector was perfectly entitled to make those findings.

Mr Levy's next submission is that if those findings were justified, then the Inspector attached too much weight to them. The photograph is a snapshot taken at a single moment in time. Two or three years elapsed between the taking of that photograph and the dawn of the Appointed Day. I reject this submission. The photograph was taken in the mid-1940s and is quite likely to show what the two pieces of land looked like on 1st July 1948, subject, of course, to changes in the seasons. It must be remembered that the same tenant, Mr Holder, was occupying Fernhill Cottage and the oblong strip both in 1945 and in 1948. I agree that, for our purposes, it would be better if the photograph had actually been taken on 1st July 1948. However, that would have required remarkable foresight on the part of the photographer. As to weight, it was entirely a matter for the Inspector how much weight he assigned to this particular piece of evidence.

Next, Mr Levy draws attention to a number of documents which came into existence in 1946 and 1947. They are:

(1) Sales particulars for the auction of the Syde Estate on 16th November 1946.

(2) The conveyance dated 18th April 1947 between Mrs Williams on the one part and Mr Pyle on the other part.

(3) The conveyance dated 1st August 1947 between Mr Pyle on the one part and Mr Evans on the other part.

Mr Levy submits that the descriptions of the oblong strip appearing in these documents all suggest that it was used as the garden of Fernhill Cottage in the 1940s and not used for agriculture. Mr Levy criticises the inspector for failing to refer to the relevant passages in these documents. Mr Levy criticises the Inspector for failing to explain why he did not draw the obvious conclusions from these documents.

I do not accept this submission. It seems to me that the documents of 1946 and 1947 contain conflicting indications. For example, page 18 of the auction particulars includes the following comments about Fernhill Cottage:

“The garden and strip of land behind the cottage are included in this lot and also a good piece of cultivated land with stone built shed on the other side of the road. This lot is let to Mr A E Holder on a weekly tenancy of 23 pounds an 8 shillings per annum, the landlord paying rates.”

This passage is consistent with the conclusions of the Inspector. It was the task of the inspector to weigh up all these conflicting indications and to make his own assessment. In my judgment this is what he has done. His conclusion, as set out in paragraph 18 of his decision, is that on 1st July 1948 the established use of the oblong strip was for agriculture. The Inspector was entitled to come to this conclusion. It might have been helpful if he had set out his analysis of the evidence rather more fully. Nevertheless, he was not obliged to do so (see Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 3 PLR 37 at pages 42 to 43).

For all these reasons, I am satisfied that the Inspector was quite entitled to reach the conclusion which he did about the state of affairs on the 1st July 1948.

The Inspector went on to hold that this state of affairs continued for 29 years, namely until 1967. That was the year in which Mr Evans and his wife moved into Fernhill Cottage. Mr Levy attacks this conclusion concerning the period 1948 to 1967. In my judgment, however, the Inspector's conclusion is supported by the oral evidence which he heard, in so far as I can glean what that oral evidence was. The conclusion is also supported by the written evidence (see, for example, the proofs of evidence of Mr and Mrs Melhado).

Mr Levy draws attention to a certificate under section 37 of the Town and Country Planning Act 1957 which was signed by Mr Evans on 4th October 1961. This certificate includes the following statement:

“None of the land to which the application relates constitutes or forms part of an agricultural holding.”

This certificate may be a piece of evidence which points against agricultural use. On the other hand, the planning application which Mr Evans signed on the same date points strongly in the opposite direction. In the answer at box 4, Mr Evans wrote “erection of dutch barn for storage of hay, et cetera”. In the answer at box 10, Mr Evans stated that the use was either “farm and storage” or “farm storage”. I cannot tell from the document before me whether there is a full stop after the word “farm”. These entries by Mr Evans make it clear that the Dutch barn to be built on the oblong strip would be used for farming purposes.

In my judgment, the Inspector was quite entitled to conclude that throughout the period up to 1967 the oblong strip was a separate planning unit, and that its purpose was agriculture.

The Inspector went on to hold that after 1967 matters changed. The Inspector described the use which Mr Evans and his family made of Area 1. The Inspector then described the use which was made of Area 1 and the black land during the time of the Westons. The Inspector concluded that by 1992 both Area 1 and the black land formed a single planning unit in conjunction with Fernhill Cottage. Although Mr Levy challenges the Inspector's premise, namely the state of affairs as at 1967, he does not challenge any of the findings as to what happened during the period 1967 to 1992.

Let me now draw the threads together. In my judgment, the Inspector was quite entitled to reach the following two conclusions:

(1) In 1992 Fernhill Cottage, Area 1 and the black land formed a single planning unit.

(2) In 1992 Area 2A formed a separate planning unit. Nothing had occurred to change the use of this area from its original use, namely agriculture.

In so far as the Claimant attacks the various findings of fact and inferences made by the Inspector along the way to these two conclusions, those attacks are unsuccessful.

Therefore, the Claimant fails in her first ground of claim.

This ground of claim is really a further argument in support of the first ground. Nevertheless, it is convenient to deal with this as a discrete topic. Both counsel did so and I shall follow suit.

In the first part of paragraph 11 of his decision, the Inspector said:

“Mr Holder first occupied the land before the Appointed Day in 1948 when the Town and Country Planning Act 1947 came into effect. Little is known of his use of the land, but Gerald Stewart recalls that he used Area 2 for grazing.”

Mr Levy submits that this finding must have been based upon the second paragraph of the proof of Mr Gerald Stewart. Mr Stewart was the only witness at the hearing who knew the property in the 1940s. In paragraph 2 of his proof, Mr Stewart stated as follows:

“This overgrown area had previously been used for grazing purposes by the tenant of Mr Robert Evans and then by Maurice Melhado, who kept goats upon it. When this grazing use ceased, the land rapidly reverted to scrub, in which state it remained until December 2000 when it was cleared by the appellant.”

Mr Levy makes four criticisms of the inspector's reliance on this piece of evidence:

(1) Mr Stewart's proof was not signed.

(2) Mr Stewart's proof was not referred to in his oral evidence.

(3) According to the recollection of Mr Goodall and according to the notes of evidence taken, Mr Stewart did not traverse the subject matter of paragraph 2 of his proof in the course of his oral evidence.

(4) The Inspector failed to alert anyone at the hearing that he was minded to attach significance to paragraph 2 of Mr Stewart's proof.

I must deal with these criticisms in the order they were advanced by Mr Levy.

First criticism

The fact that Mr Stewart's proof was unsigned did not deprive it of the status of evidence. A planning inquiry is less formal than a court hearing. The procedural rules do not require proofs of evidence to be signed. Furthermore, I am told by Mr Kolinsky, counsel for the Secretary of State, that unsigned proofs are frequently used at planning inquiries. I therefore reject the first criticism.

Second criticism

It seems to me that the various proofs of evidence were taken as read by the Inspector. The Inspector took these proofs into account in the same way that he took into account all the other pieces of documentary evidence submitted by interested parties. He was entitled to do so.

Third criticism

It was a matter for the advocates which topics they traversed in oral evidence. It appears that counsel for the local authority did not ask Mr Stewart any questions about paragraph 2 of his proof. However, that was not the end of the matter. Mr Stewart was cross-examined. Mr Goodall (who represented the Claimant) could have specifically questioned Mr Stewart about paragraph 2 of his proof, but he chose not to do so. I do not for one moment criticise that decision. From Mr Goodall's perspective, cross-examination on paragraph 2 may have been counter-productive. It may have magnified the adverse evidence. Be that as it may, the fact is that paragraph 2 was not challenged in cross-examination. The Inspector was entitled to take it into account.

Fourth criticism

In my judgment, paragraph 2 of Mr Stewart's proof was one piece of evidence amongst many to which the Inspector attached weight when analysing the case and reaching his conclusions. There was no duty on the Inspector to highlight this particular piece of evidence during the hearing.

Let me now draw the threads together. I reject each of the criticisms which the Claimant makes of the Inspector's reliance upon paragraph 2 of Mr Stewart's proof of evidence. Accordingly, the Claimant fails in her second ground of claim.

I can deal with the third ground of claim very shortly. Paragraph 8 of the Inspector's decision was obiter. It was not part of the reasoning process which led to the Inspector's decision on the appeal before him. Furthermore, there had been little or no argument on the question discussed by the Inspector in paragraphs 7 and 8 of his decision. One authority on this topic, which appears to be highly material, was not drawn to the Inspector's attention. That authority is Whitehead v Secretary of State for the Environment [1992] JPL 561.

Paragraphs 7 and 8 are not germane to the issue which I have to decide. Both counsel are agreed on this point. Nevertheless, they both invite me to make any comments which seem appropriate in relation to paragraph 8. In the light of that invitation, I make three comments about paragraph 8 of the Inspector's decision:

(1) Paragraph 8 does not form part of the matter which the Inspector was deciding.

(2) The subject matter of paragraph 8 had not been the subject of argument, and relevant authority had not been cited to the Inspector.

(3) It would be better if paragraph 8 of the Inspector's decision is disregarded in the future. That paragraph may be right, it may be wrong. If this question has to be decided at some future date, neither party should be prejudiced by the views expressed by the Inspector in paragraph 8.

Finally, I should add this. I am not in any way criticising the Inspector for saying what he did in paragraph 8. It seems to me that the Inspector was doing his best to be helpful to all concerned but, for the reasons which I have indicated, it would be better now if that paragraph is set on one side.

In her fourth and final ground of claim, the Claimant attacks the Inspector's reasoning in paragraphs 28 and 29 of his decision. Mr Levy submits that, because the Claimant is disabled, the Inspector should have applied a different test in determining whether a material change of use had occurred. Mr Levy submits that where a landowner is disabled, a lesser amount of activity by the landowner on his or her land will suffice to give rise to a material change of use. The inspector erred in law because he applied to Area 2A the test which would be appropriate in the case of an able-bodied landowner.

This is an extremely interesting argument. As the argument developed, it became clear that Mr Levy was not relying upon Article 14 of the European Convention on Human Rights or upon any statutory provision in relation to disability or discrimination. Instead he takes his stand on general principle. Both Mr Levy and Mr Kolinsky tell me that, despite their researches, they have been unable to find any authority on this point.

There is some moral force in the arguments which Mr Levy advances. On the other hand, it would be difficult to convert the proposed general principle into legal rules capable of consistent application. In my judgment, the general principle upon which Mr Levy relies is not, at the moment, part of English law. Material change of use is a statutory concept. It is one type of “development” within the meaning of section 55(1) of the 1990 Act. The test for determining whether a material change of use has occurred is an objective test. The application of that test is unaffected by the health or infirmity of the landowner. I therefore reject the submission that the Inspector erred in law in paragraphs 28 and 29 of his decision.

Mr Levy did advance a separate argument based upon the word “continuously” in the second sentence of paragraph 29. Mr Levy argued that continuous use, as there described, must give rise to a material change of use. I reject that submission. The word “continuously” in paragraph 29 does not mean that the Claimant has spent the entirety of her time in Area 2A throughout the last 14 years. What it means is that such use as the Claimant has made of area 2A has occurred throughout the 14-year period.

Let me now is draw the threads together. Both lines of attack on the Inspector's reasoning at paragraphs 28 to 29 of his decision fail. Accordingly, the Claimant is unsuccessful on her fourth ground of claim.

For the reasons set out in Parts IV, V and VII of this judgment, the claimant's application under section 288 of the 1990 Act must be dismissed.

For the reasons set out in Part VI of this judgment, I express the opinion (which is obiter) that the Inspector's conclusions in paragraph 8 of his decision should be disregarded in any future litigation, arbitration, or inquiry concerning the claimant's property. The Inspector's conclusions may be right or they may be wrong. This matter should be regarded as at large. It can be resolved after argument on any future occasion when that issue arises for decision.

Finally, I thank counsel for their excellent skeleton arguments and for their most helpful oral submissions.

MR KOLINSKY: I am very grateful to your Lordship. On behalf of the first Secretary of State I make an application for costs. In my submission, costs should follow the event. My Lord, a summary schedule has been prepared. The total produced by that schedule is £4,074. My understanding is the Claimant is in receipt of Legal Services Commission funding, therefore I submit that the appropriate order would be to carry out a summary assessment but make any order subject to the usual restrictions on costs --

MR JUSTICE JACKSON: I am extremely glad to hear that she has the protection of Legal Aid funding. What do you say, Mr Levy?

MR LEVY: On a matter of principle, I cannot resist my learned friend's application. I have not seen my learned friend's schedule. (Handed). My Lord, we do not take any objections to the quantum either.

MR JUSTICE JACKSON: Yes, very well then. I make the order for costs which Mr Kolinsky seeks.

MR LEVY: One other matter, just so your Lordship does not end up with any egg on the proverbial. Your Lordship suggested that in Ashbridge the court was then concerned with the forerunner of section 288 of the Town and Country Planning Act. That is, in fact, my Lord, incorrect. The court there was concerned with a provision which was on all fours with it, but it was in legislation dealing with slum clearance. That is apparent from page 92 of the transcript at tab 2 of my authorities bundle. The green one.

MR JUSTICE JACKSON: Page?

MR LEVY: Page 92 of the report.

MR JUSTICE JACKSON: It is concerned with a slum clearance?

MR LEVY: It was the Housing Act 1957, my Lord.

MR JUSTICE JACKSON: Which was on all fours with section 288?

MR LEVY: Yes. That is apparent from the note underneath the headnote on page 92. The provision itself appears in the right-hand column about halfway down. The principal legislation appears in the left-hand column, section 42 of the Housing Act.

MR JUSTICE JACKSON: Section 42.

MR LEVY: That deals with slum clearance, generally. As your Lordship sees on the right-hand side approximately halfway down.

MR JUSTICE JACKSON: Schedule 4, paragraph 2. Yes. It is not the forerunner. Thank you very much, Mr Levy.

MR LEVY: Another one, if I may. Your Lordship opened with reference to the parcels as 173 to 175. That is historical. They are no longer that, they are something totally --

MR JUSTICE JACKSON: When did they lose those references?

MR LEVY: My instructing solicitor believes they retained those numbers until some stage in the 70s.

MR JUSTICE JACKSON: So they ended in the 1970s?

MR LEVY: So I understand, but I do not want to be quoted on that. I can be quoted on saying that they are no longer 173 to 175. My Lord, I am sorry if I am overly pedantic.

MR JUSTICE JACKSON: I am extremely grateful to you for those points.

MR LEVY: The only other error that your Lordship made was, in rejecting each of my submissions your Lordship should have accepted all my submissions. In those circumstances, it is always difficult to do this nicely, but we ask for permission to appeal.

The principle ground that we say, with the greatest of respect -- it was a very agreeable and challenging day on Monday -- but the principle ground we say your Lordship has not, with respect, dealt with, or dealt with properly, is my submission that whilst one can identify rural use, and it was open to the Inspector to have found rural use as at the commencement of the planning legislation in 1948, the Inspector found agricultural use and as at August 1948 that could only have been based on two pieces of evidence, namely the photograph, a better copy of which your Lordship has now had the benefit of looking at, and Mr Stewart's evidence, his oral evidence or the “grazing” in his proof of evidence. Now, whilst I accept that your Lordship has found that there is a marked difference between OS 174 and 175, I fully understand the reasons your Lordship gave for that, what your Lordship has not explained, and what the Inspector has not explained, and what I say remains perverse is why that marked difference is an agricultural difference. I can accept cabbage patch or whatever else but I can not accept -- and this is the thrust of my first application -- is that it does not show anything agricultural at all.

The second point is a similar one in so far as the proof goes, that there is evidence of grazing. Your Lordship will recall that I referred your Lordship to, I think it was a decision in Belmont, I referred to my daughter's pony and your Lordship's Friesians, or anyone else's herd of agricultural creatures. Grazing is not necessarily an agricultural process. It is consistent with domestic use. So in so far as it was, I could have succeeded, and in my submission I could have if I could show that there was no basis for finding an agricultural use as opposed to a rural use. I say the Inspector is still wrong and I say, with the greatest of respect and a degree of diffidence, your Lordship has not addressed it. I seek permission to appeal on that basis.

Also, it occurs to me that there is an important point on my ground four although I do accept that it was not the main thrust of the application before your Lordship. My Lord, it is always difficult and I think I have said enough.

MR KOLINSKY: My Lord, on behalf of the Secretary of State, I would resist the application. My Lord, as my Lord appreciated, I would respectfully say, in his judgment, as Sullivan J makes abundantly clear in those three paragraphs, the very enterprise of forming conclusions is about drawing judgments based on the evidence available, and on inferences properly drawn from the evidence available, and from the exercise of judgment. The Inspector made it abundantly clear that he was piecing together limited information, and it was an entirely justifiable exercise for him to make the necessary inferences to reach a conclusion he acknowledged was based on the information and involved an element of judgment to bridge those gaps. He is forced by the very exercise to reach a conclusion on the balance of probability.

Also, as my Lord has made clear in the judgment, there is ample support elsewhere, such as the reference to cultivated land, to assist with the general judgment that he had to make on the available evidence. So, I respectfully say the process is not one where he has to find a exact match with the available evidence. He is entitled to use judgment and inference to draw appropriate conclusions. That is all I say in relation to the first two points.

In relation to ground four, whilst it is an interesting point, I say it is not one with any legal meat to be attached to it. It is plain, on the state of the existing authorities and the existing law, that the Inspector has to consider the materiality of the change of use based on the objective station of what there is. There was no legal basis for approaching it on a differential basis. The Inspector plainly acknowledged the claimant's circumstances and gave them as much weight as he was able to. He came to the only possible conclusion. Whilst acknowledging there may be moral perspectives, he came to a point which is entirely clear, and there is no possibility of the Court of Appeal taking a different approach.

MR LEVY: If I could just respond very briefly. My learned friend and your Lordship say that the Inspector has drawn conclusions on the balance of probabilities on the limited evidence available to him. What were those limited pieces of evidence? Namely the photograph or what Mr Stewart wrote in his proof. Even so, we say that he was not entitled to draw the inference that it was agricultural. My learned friend speaks about cultivation but he cannot have his cake and eat it. Your Lordship has held that the photograph taken in 45 or 46 is good evidence of what the land probably looked like in 1948, in which case it is possible to say that land was cultivated, or any part of OS 175 was cultivated in 1948. My learned friend cannot have it both ways.

In the circumstances, my Lord, I have made my application for permission. I leave it in your Lordship's hands. Again, as I said on Monday, I suspect I might know what the answer is.

MR JUSTICE JACKSON: Whilst I have every confidence that Mr Levy will put his applications to any higher court forcefully, attractively, and indeed temptingly, I am afraid I do not think there is a real prospect of success on appeal. Accordingly, I refuse permission.

MR LEVY: I am obliged. Just one final point. I am a bit out of my depth, but I understand I need the usual order for the assessment of my publicly funded costs.

MR JUSTICE JACKSON: You may have the usual order, whatever that may be.

MR LEVY: Community Legal Services funding assessment. I am very grateful to the associate. I am very much obliged.

MR KOLINSKY: On a matter of housekeeping, could I ask my Lord for the return of the photograph?

MR JUSTICE JACKSON: If this case goes on the Court of Appeal or an application for leave to appeal, I think you might be wise to have the photograph. The response of the court if they do not have it may be less charitable than mine.

MR KOLINSKY: We will liaise to make sure that is available.

MR LEVY: My Lord, I do apologise for keeping your Lordship. I remind you, obviously, that the end of term is fast approaching and I am not sure as far as time for my appeal or application for permission is concerned.

MR JUSTICE JACKSON: The time limit set out in Part 52 is 14 days, and time runs in vacation.

MR LEVY: I am going to have to lodge it and it may not be dealt with on paper until some time. I think I am getting myself in a bit of a twist here.

MR JUSTICE JACKSON: I have told you what the rules provide. I do not think I can give any more assistance. Thank you both very much.