McCleave, R (on the application of) v Canterbury City Council

SIR MICHAEL HARRISON: This is a claim made under section 288 of the Town and Country Planning Act 1990 to quash a decision of the first defendant's Inspector, dated 12 February 2008, when he dismissed the claimant's appeal against the refusal of the second defendant, Canterbury City Council, to grant planning permission for the change of use of a building to use as a dwelling at land known as 19 Hollow Street, Chislet, Canterbury in Kent.

The claimant appears in person. The first defendant, the Secretary of State for Communities and Local Government, is represented by Mr Honey. The second defendant indicated that it did not intend to appear or to be represented. The two interested parties have taken no part in the proceedings.

On 26 March 2009 Mr Steven Morris QC, sitting as a Deputy High Court Judge, made an order giving liberty to the claimant to lodge with the court within six weeks an expert medical report on the question whether the claimant lacks capacity to conduct the proceedings within the meaning of Part 21 of the Civil Procedure Rules and sections 2 and 3 of the Mental Capacity Act 2005. No such report has been lodged by the claimant who continues to represent himself. The presumption of capacity therefore applies.

The appeal site, described as 19 Hollow Street, is next to a plot known as 17 Hollow Street, although it seems that both plots were once part of a larger plot. It seems that number 17 has, in the past, been used to refer to an area of land now known as number 19.

In December 2004 enforcement notices were served relating to what was described as 17 Hollow Street but which included the present appeal site. They related to the building the subject of this appeal. One was an operational development enforcement notice, the other related to the change of use to a residential use. The former notice was appealed unsuccessfully. The latter notice was not appealed. There are therefore two confirmed enforcement notices relating to the building, and its use, which is the subject of the planning application in this case.

The planning application in this case described the proposal as "change of use to a previous use". That was changed by the second defendant to "change of use to dwelling (resubmission)". In his decision letter, the Inspector stated that the appellant agreed that he wanted to use the uncompleted building, which was unauthorised, as a dwelling and that the description should also include reference to its retention. The planning appeal, the subject of these proceedings, therefore related to an uncompleted building, the proposal being to retain the building and to allow its completion and its use as a dwelling.

The Inspector identified the main issues as being the effect of the development on the character and appearance of the countryside which was designated as an area of high landscape value, and whether the material considerations advanced by the appellant were sufficient to outweigh any harm. The Inspector also had regard to whether the development would preserve or enhance the character or appearance of the Hollow Street and Chislet Forstal Conservation Area within which the site lay. The claimant's case at the Inquiry was that the former presence on site of houses, and the existence of some remains of those houses, were enough to justify residential development of the land. I quote paragraph 12 of the decision letter:

The second defendant's evidence was that part of the site was once occupied by a terrace of small cottages, but they had been demolished sometime after the war. The Inspector found that the dwellings had been demolished and that the residential use had ceased, and that there was no overriding justification to treat the proposal as an exception to the development plan policies. The Inspector concluded that the proposal would be harmful to the character and appearance of the countryside and would detract from the landscape quality of the area of high landscape value, and would thus be contrary to the relevant development plan policies. He also concluded that the proposal would fail to preserve or enhance the character or appearance of the Conservation Area.

The claimant had conceded that the proposal was in breach of the countryside policies, and had stated at the public inquiry that he was playing for time in the expectation that the building would become lawful in the fullness of time. For the purposes of this hearing, the claimant has produced a number of bundles of documents, many of which would strictly speaking be inadmissible, and it was difficult to decipher from the documents exactly what points the claimant was taking. When I asked the claimant at the beginning of the hearing of this case precisely what points he was taking, he made it clear that he was just taking one point which related to a very small area of land which he identified on an OS map. He submitted that the Inspector had failed to recognise that that part of the site had an established land use and also that it had on it a wall or corner of a structure used as a bathroom which had established residential use rights. He submitted that the second defendant had under-enforced in respect of that area.

I am quite satisfied that there is no substance in that point. Firstly, it was not a point taken at the Inquiry. It involves new evidence and judgmental assessment of a plan which it would be quite wrong to admit at this stage. Secondly, even if the claimant were right, it could not possibly have made any difference to the outcome of the case. This was a planning appeal, not an enforcement appeal, and the Inspector was quite clear in his decision letter that no planning permission had been granted for the building or its use. That was, no doubt, why the planning application was made. The enforcement notices were referred to by the Inspector in the context of background information, and even if there was the very slight under-enforcement claimed by the claimant, I am quite satisfied that it would not have made any difference at all to the Inspector's conclusion relating to the planning appeal.

I should mention that during his submissions the claimant was critical of the Inspector's conduct of the inquiry. That was something that had been referred to in the claimant's documents with the result that the Inspector had made a witness statement about it. The claimant relented to the extent that he said that he was not suggesting that the Inspector was intimidating. He, the claimant, said that he could not see the wood for the trees and that he had lost track of everything. He accepted that the incident he referred to might not have happened. Having regard to that evidence, and to the Inspector's witness statement, I am satisfied that there was nothing unacceptable about the way the Inspector conducted the inquiry.

Mr Honey produced a helpful skeleton argument in which he identified from the documents some seven points which the claimant might be advancing. I gave the claimant an opportunity to advance those points but he was quite clear that he was only taking the point based on the OS map. I should, however, make it clear that I have considered all those other points identified by Mr Honey, and I am satisfied that there is no substance in any of them for the reasons given by Mr Honey in his skeleton argument.

It follows that, for the reasons I have given, this application must be dismissed.

MR HONEY: My Lord, I am grateful. There are two actions ongoing as I understand it my Lord, the provisional judicial review I do not think has been formally disposed of as well as the section 288 proceedings, so perhaps I could ask when the order is prepared it refers to both sets of proceedings, just for the avoidance of doubt.

SIR MICHAEL HARRISON: Well, I should say that I have not seen any papers relating to those proceedings, so I do not think I am in a position to say that.

MR HONEY: Well, my Lord, the points that were raised as the grounds of challenge were dealt with in my skeleton argument at paragraph 14, so to the extent that your Lordship has already indicated a view on the merits of those by endorsing the skeleton argument, perhaps it is not necessary to do so. But certainly, my Lord, as I understand it, this was a matter I raised in paragraph 2 of my skeleton argument, the judicial review claim was no longer being pursued, although as I understand there was no formal disposition of that. In the circumstances, if you have no papers in relation to it, although we have dealt with the one argument Mr McCleave raised, it may be difficult for you to dismiss that judicial review in those circumstances.

SIR MICHAEL HARRISON: Well, let me ask Mr McCleave about it, it may be we can deal with it now, I do not know. Mr McCleave, you have a judicial review application.

MR MCCLEAVE: That is correct.

SIR MICHAEL HARRISON: Which I understand is not being pursued by you but which has not formally been dealt with.

MR MCCLEAVE: No, I have paid for two applications. I have never had my £50 back, so therefore it is still standing. So it is the court's fault, nothing to do with me.

SIR MICHAEL HARRISON: I am not concerned whose fault it is, but am I right in thinking that you are not pursuing the judicial review proceedings?

MR MCCLEAVE: Would it be worth pursuing after your summing up, my Lord?

SIR MICHAEL HARRISON: Well, it is for you to decide but my view would be--

MR MCCLEAVE: -- well I have never had my money back.

SIR MICHAEL HARRISON: My view would be that it is not, because the two points which you raise in your judicial review proceedings were covered in the points raised in Mr Honey's skeleton argument which I have found are correct.

MR MCCLEAVE: Thank you very much.

SIR MICHAEL HARRISON: In view of that Mr McCleave, am I right in thinking that you are not pursuing your judicial review proceedings any further?

MR MCCLEAVE: Well, why can they just hold on to my £50?

SIR MICHAEL HARRISON: I am afraid I can't deal with that because I do not know.

MR MCCLEAVE: I was advised by the court -- you see what I wanted was an injunction to keep the council away from me, that is why I paid my first £50. Then somebody wrote a letter to me and said that I went the wrong way and that I should go section 288, and then someone said to me, no you have went to the wrong section you should have gone 289, and then someone has told me I should have went section 173, but now I am confused. My Lord, you have just put it to me, I may as well clear everything away and move on.

SIR MICHAEL HARRISON: I would have thought that might be advisable, although it is a matter for you.

MR MCCLEAVE: That would leave me homeless.

SIR MICHAEL HARRISON: No, no, what I am being invited to do is to dismiss the judicial review claim on the basis that you are not pursuing it any further.

MR MCCLEAVE: Can you recommend I get my money back?

SIR MICHAEL HARRISON: I am afraid I can not deal with that, you will have to deal with the office on that.

MR MCCLEAVE: It is very, very strange that I set out with the intention to pay £50 for an injunction so the council would not come near me, that is all I started out to do.

SIR MICHAEL HARRISON: Yes, I am not talking about injunction, I am talking about the judicial review proceedings.

MR MCCLEAVE: No, but that is what I thought the injunction was, so I am mistaken my Lord, sorry I am wasting your time.

SIR MICHAEL HARRISON: Well, I am just anxious to clear as much out of the way as possible, with your agreement.

MR MCCLEAVE: It would not be beneficial, would it?

SIR MICHAEL HARRISON: Are you content that the judicial review proceedings are dismissed?

MR MCCLEAVE: I don't know my Lord.

SIR MICHAEL HARRISON: You do not know. Well I think, Mr Honey, as Mr McCleave is not represented, I think what will have to be done is for a formal application for it to be dismissed to be made and then dealt with.

MR HONEY: My Lord, I am grateful.

MR MCCLEAVE: Thank you, my Lord.

MR HONEY: The other matter, my Lord, is costs. We have been able to discuss this outside and we have reached an agreement as to costs in the sum of £5,000. We have made arrangements with Mr McCleave for the payment of that so, my Lord, I would ask for an order that Mr McCleave pay the Secretary of State's costs, assessed in the sum of £5,000.

SIR MICHAEL HARRISON: Do you agree with what has been said?

MR MCCLEAVE: I am content with that.

SIR MICHAEL HARRISON: You are content with that. Thank you very much Mr McCleave, then I will make an order that the claimant pays the first defendant's costs in the sum of £5,000.

MR MCCLEAVE: Excuse me, my Lord, I have got one year to do so.

SIR MICHAEL HARRISON: I think what Mr McCleave is saying he has a year to do so, I imagine that may refer to what you have been discussing outside.

MR HONEY: My Lord, yes, that is right. We have agreed that it will be paid over the course of year, in four quarterly installments.

SIR MICHAEL HARRISON: Do you wish that to be part of the order?

MR HONEY: My Lord, I do not think it needs to be. We have said we will formalize it with a letter to Mr McCleave.

SIR MICHAEL HARRISON: Right, so that will be produced to you in a letter.

MR MCCLEAVE: It does not mean to say that you are going to order someone to pull the property down are you?

SIR MICHAEL HARRISON: No, I have not made any such order. Thank you very much.