Simpson v Secretary of State for Communities and Local Government & Anor

This appeal under section 289 of the Town and Country Planning Act 1990, is against an inspector’s decision upholding an enforcement notice served on the appellant, Mr Martin Simpson, and his father, Mr Alan Simpson, by the second respondent, Medway Council. The enforcement notice, which was dated 4 November 2008, related to land described as “Land known as 5 Brambletree Wharf, Wouldham Road, Borstal, Rochester.” As shown on the plan forming part of the notice it was part of the bank of the river Medway and an area extending from this into the river up to low water mark. The width of the land so shown was 47m. The enforcement notice alleged a breach of planning control consisting of the change of use of the site, without planning permission, “for the mooring of water borne vessels and for residential purposes” and operational development consisting of the construction of a new wharf wall, the laying of hardstanding and the construction of a floating jetty. The notice required the cessation of the use and the removal of the vessels and the physical works.

The principal element of the use to which the enforcement notice related was the permanent mooring, parallel to the wharf, of a vessel called the “Sprite” in which the present appellant lived. The Sprite was referred to by the inspector as a “barge or former tanker” and was said to be 34m long with a draft of 1.2m. Two other vessels were said in evidence to have been moored for uncertain periods alongside the Sprite and/or the floating jetty. Previous appeals, against the refusal of planning permission and an enforcement notice, had been dismissed in September 2004 and November 2005, when the Sprite had been moored at right-angles to the river bank.

The appeal was the subject of a public inquiry held by the inspector on 16 December 2008 and 7 and 8 July 2009. An appeal against the council’s refusal to grant a certificate of lawful development (LDC) was heard concurrently. The appeal against the enforcement notice was on grounds (a), (c), (d) and (f) of s174(2) of the 1990 Act. The inspector dismissed the appeal on grounds (a), (c) and (d) grounds and made certain amendments to the requirements of the notice under ground (f). He also dismissed the LDC appeal.

The appeal is made only in relation to the inspector’s conclusions on ground (a), the issue as to whether planning permission ought to be granted; and the appellant’s contention on this is that the inspector was in error in failing to take into account a material consideration in determining this issue, namely the “fall-back” position that the appellant had advanced at the inquiry. The fall-back case had been put in following way in the appellant’s statement of appeal for the inquiry:

“22.

Furthermore, the fall back position is crucial in this case. The Appellants are entitled to moor boats to the land. Notwithstanding the contention that the residential use is lawful, in any case the Appellants could allow the present boats to continue to be moored at the site. The visual impact of the development – the principal objection of the LPA – would therefore remain the same.”

At the inquiry evidence referring to this matter was given for the appellants by their planning witness, and counsel for the appellants relied on the fall-back argument in his submissions to the inspector.

On ground (c) (that the use of the site for the mooring of water borne vessels and for residential purposes did not constitute a breach of planning control) and ground (d) (that the use was immune from enforcement action) the inspector summarised as follows the appellants’ contentions:

“In summary, the Appellants’ case was that they enjoy long standing mooring rights which entitle them to moor water borne vessels at the site. Further, the Council were wrong to refuse the LDC on the basis of a failure to demonstrate a 10 year residential use immediately preceding the application. There was also a long standing residential use of the wharf which had not been abandoned. The use of what is now Plot 5 for that purpose since 2002 was and is thus lawful as part of that continuing use.”

The inspector referred at length to the history of the use of Brambletree Wharf, and Plot 5, for mooring. He had previously said (at paragraph 4) that it was not disputed that between 1967 and 1988 a number of boats or barges were moored at the wharf and used for residential purposes; and that between 1991 and 1994 parts of the site were sold, or at least became separately occupied, as four plots, with each receiving planning permission in a variety of terms but essentially for the mooring of a boat for residential use. In paragraphs 40 to 48 he set out his findings and conclusions:

“40.

Change of use. The sub-division of the site and creation of at least four new planning units in the early 1990s represented in my assessment a new chapter, or series of new chapters, in the planning history of the wharf. Where before there may have been a lawful use for the mooring of 4 boats for residential use across the wharf as a single planning unit, that single use of the whole was incompatible with and superseded by the new permissions, all of which are subject to conditions. Consistent with that, it cannot be said that there remained some residual part of the single use, for residential purposes, attaching to Plot 5 particularly where such a use would have led to the possibly previously lawful use being materially exceeded. I see no reason indeed why those steps should not be said also to have extinguished the use of the remainder of wharf for mooring more generally.

41.

Even if I am wrong on that last point, whether the general mooring of vessels could constitute a material change of use of land would be a matter of fact and degree in any given case. The evidence here is of a vessel 34m long and with a draft of some 1.2m being permanently moored and of 2 others moored for uncertain periods alongside it and/or the jetty. There is nothing to suggest even before 1986 that anything other than a single vessel was moored permanently at part of what is now Plot 5. The new section of wall and a 22m long jetty projecting from the bank has thus allowed additional mooring considerably in excess of anything shown in the historical evidence. Leaving aside the residential purpose, I have no hesitation in holding a use at that level to be capable of being material in planning terms; the issue is whether it is lawful…

43.

The lack of evidence of any actual use of this end of the wharf, nor of any real intention to make use of its for such along time after the redevelopment applications were refused, and its physical condition before [Mr Alan Simpson] bought it, all however combine to lead me to conclude that any pre-existing use rights, in planning terms, had been abandoned by the time of that purchase, that is, if they had not already been extinguished through the sub-division of the site. A reasonable person, appraised of all the (same) evidence, but especially having regard to the lack of use and the site’s condition, would conclude on balance that any such use had been surrendered or given by 2002.

44.

…The site had no lawful use by the time [Mr Alan Simpson] and/or [Mr Martin Simpson] occupied it in 2002 and therefore there was no ‘existing use of residential moorings on (Plot) 5’ at the time the application was validated. …”

The inspector’s conclusion was that the uses alleged in the enforcement notice amounted to a material change of use for which planning permission was required and for which no planning permission had been given. Both ground (c) and ground (d) therefore failed.

Turning to ground (a), the contention that planning permission ought to be granted for the use to which the enforcement notice related, the inspector dismissed, as a preliminary point, the appellants’ argument on fall-back. He said:

“50.

As a further preliminary point, it will be clear from my conclusions on the LDC and legal grounds that I do not consider the Appellants have a ‘fallback’ available to them in planning terms. Their planning witness regarded the mooring of vessels as a continuing ‘right’. It may be as between adjoining landowners. For the reasons given, planning permission is now required for it.”

In her proof of evidence the appellants’ planning witness referred to the fall-back position in the following passages:

“6.9.10

The 2004 Inspector accepted, in paragraph 6, that there are mooring rights on the appeal site – a view endorsed by the Enforcement appeal Inspector in paragraph 5 of the 2005 decision. This issue is examined further in section 6.12, but it is evidence that a boat can be moored at Brambletree Wharf in this location without any need for planning permission so the fallback position is that it can lawfully remain on site regardless. The impact upon the wider Area of Outstanding Natural Beauty and Special Landscape Area would be the same. In any event it is submitted that this impact is minimal given the overall context of Brambletree Wharf and the wider surrounding area.

6.9.11

In summary, the continued mooring of a boat at Brambletree Wharf (with or without any associated hard surfaces etc) must be viewed in its context. It can lawfully be moored regardless of the outcome of this appeal. …

6.13.3

Key concerns have been the impact of this boat upon the surrounding area but the fallback position in this case is such that the boat can be moored at Brambletree Wharf without any need for planning permission. The position appears to have been accepted by the Inspectors at the previous appeals and by the Local Planning Authority. The issue is simply one of its use. If not used residentially, there would be little, or no, external change to the site as there is no domestic paraphernalia associated with the current use and a condition can be imposed to prevent this occurring. Indeed the site is much tidier than its neighbours…

6.13.5

These are crucial issues and ones that the inspector must be clear about when determining this appeal. Removal of the residential use will not result in removal of the boat. Nor will it set any precedent for other boats to be moored at Brambletree Wharf.”

Although he gave evidence at the inquiry, it appears that the appellant said nothing germane about the fall-back position, and the case for the appellants was summarised in closing by Mr Richard Turney, who appeared for them then, as he does now for the present appellant:

“The assessment of the planning merits must be made with clear reference to the fall back position. It has already been explained why mooring rights exist at the site: it has been recognised that the same exist by both the LPA and two Inspectors. This is not a choice between open countryside and a residential wharf. It is a choice between residential wharf and a non-residential wharf. For the reasons explained above – in terms of the wharf wall complying with the 2005 notice – the presence of the wharf structure is now unassailable.”

The essence of any fall-back contention is that, although the proposed development might have an adverse effect, nevertheless if planning permission were to be refused other uses or operations also with adverse effects but not requiring planning permission would or might be carried on or carried out; so that in the final evaluation the proposed development ought to judged to be acceptable in view of what would or might occur if permission for it was refused: see Snowden v Secretary of State for the Environment [1980] JPL 749. A fall-back position clearly has two elements that need to be established before it can be brought into the evaluation. The first is the nature and content of the alternative uses or operations. These need to be identified with sufficient particularity to enable the comparison that the fall-back contention involves to be made. The second element is the likelihood of the alternative use or operations being carried on or carried out. This has to be established for two reasons: see South Buckinghamshire District Council v Secretary of State for the Environment CO/184/98, 22 June 1998. Firstly, unless the alternative uses or operations are a realistic possibility, it would be Wednesbury unreasonable to treat the harm that would result from them as a reason for granting planning permission for the proposed development. Secondly the degree of likelihood of the alternative uses or operations being carried on or carried out will, or at least may be, a material consideration, to be weighed along with the harm that they would cause and the other pros and cons of the development proposed. If the harm that would result from the fall-back uses or operations would be very serious, it may well be that a lower degree of probability of their realisation would be sufficient to justify the grant of permission than in the case of less serious harm.

The use that the appellants’ planning witness addressed in her evidence as the fall-back use was the continued, permanent mooring of the Sprite. Her view was that, given this, the issue was purely whether it should be used for residential purposes and that a residential use ought to be permitted. The inspector, however, concluded that, leaving aside the residential purpose, there were no established use rights for the general mooring of vessels at the site. There is no appeal against this conclusion, which formed the basis of his rejection of the appeal on grounds (c) and (d). The fall-back contention, advanced in the way it had been, therefore, necessarily failed, and the inspector’s rejection of it discloses no error.

The fall-back case that Mr Turney now advances is a different one from the one to which the evidence at the inquiry was directed. His submission is that boats may be moored to a river bank without there being a material change of use if such mooring is ancillary to the primary use of the land as a navigable river; and that the inspector failed to take this fall-back use into account. I have to say that I am not at all sure that a fall-back case of this nature was advanced at the inquiry so clearly as to require the inspector to deal with it. Nor am I sure about the concept of mooring on a river bank being, for planning purposes, a use ancillary to the use of the river for navigation. But there is no need for me to consider this. A challenge on the basis that the inspector was in error in failing to take account of this suggested fall-back use must in my judgment inevitably fail. The reason for this is that there is nothing to show that the two elements of a fall-back case – on the one hand, the nature and content (and thus the character and intensity) of the use, and, on the other, the likelihood of it being carried on – were established before the inspector so as to oblige him to take it into account.

Mr Turney does not suggest that there was any evidence given or any argument advanced that would have enabled the inspector to reach a conclusion on the nature of the ancillary use that was relied on as the fall-back position. There was no evidence or argument directed to identifying what vessels might moor there or for what purpose or for what duration. Unless such matters as these were established, or even postulated, there was nothing for the inspector to bring into the final evaluation as a comparison with the development for which planning permission was sought. The first element of a fall-back case was simply not there.

Mr Turney accepts in addition that there was no evidence before inspector as to the likelihood of such mooring occurring, so that the second essential element of a fall-back case was absent also. Indeed there was no evidence about the likelihood of the use on which the appellants’ principal fall-back contention was based – the continued, permanent mooring of the Sprite in the event that it could no longer be used for residential purposes – so that this element of a fall-back case was lacking in respect of that also.

The result is that there was no material before the inspector that made it necessary, or even possible, for him to consider a fall-back position as a factor that might in the overall analysis favour the grant of planning permission. The challenge to the inspector’s decision must necessarily fail.

I would add that in submitting that the inspector was in error in concluding as he did in relation to fall-back, Mr Turney draws attention to passages in the inspectors’ decision letters of September 2004 and November 2005. The first of these was an appeal against the refusal of planning permission for “dredging to allow the berthing of barge and spoil to construct a flood prevention bund, the berthing to be for residential use”, and the second was a decision upholding an enforcement notice in respect of the development to which the September 2004 decision related. There is no need to quote these. It is sufficient for me to say that they do not seem to me to be expressions of view about the mooring, if any, that could take place without the grant of planning permission, and in any event they do nothing to remedy the deficiencies in the appellant’s fall-back case in terms of the nature of the use and the likelihood of it being carried on.

For the Secretary of State Mr Hereward Phillpot, in addition to advancing arguments that I have substantially accepted in what I have already said, submitted that, even if the appellant were correct in his contention that the inspector was in error in relation to fall-back, there was no realistic possibility of a different decision being reached. There is no need for me to deal with this in view of the conclusion I have reached; and there is similarly no need for me to deal with an argument to the same effect, based on a more recent appeal decision, that was advanced by Mr Cain Ormondroyd.

The application is dismissed.