O'Flynn v Secretary of State for Communities and Local Government & Anor

The Claimant applies under section 288 of the Town and Country Planning Act 1990 (“TCPA 1990”) to quash the decision of the First Defendant, made on his behalf by an Inspector on 19 January 2016, in which he dismissed the Claimant’s appeal from the Second Defendant’s refusal to grant him a certificate of lawful existing use or development (“CLEUD”), pursuant to section 191 TCPA 1990.

The Claimant is the owner of a property known as Glenthorne, Five Ways Road, Hatton, Warwickshire CV35 7HZ (hereinafter “the Site”), comprising a dwelling-house and 3.5 acres of land.

There was a smallholding on the Site for many years, though it had ceased to be used for this purpose in the late 1970’s. The Claimant purchased the Site in 1996. At that time, according to the Claimant, it had nothing which could be described as a garden. The land was overgrown. The southern part of the Site, to the rear of the dwelling-house, was semi-derelict and included the concrete bases of old agricultural buildings and piles of bricks. The northern part of the Site was paddock grass, which was being cut by a farmer, at the request of the previous owners.

Over the years since he purchased the Site, the Claimant has removed the remnants of the smallholding and cultivated the land. He has planted trees, shrubs, hedges and flowers; grown fruit and vegetables; constructed greenhouses and composting bins; and laid, levelled and maintained extensive lawns. He has also installed a well, a pond, fencing, hardstanding, a new drive, and garden seating. His case was that the entirety of the land had become one extensive garden, which was in regular use for normal residential activities by the Claimant and his family, including their dogs, and their visitors.

On 21 March 2013, the Claimant applied to the Second Defendant for a lawful development certificate for the use of land as incidental to the enjoyment of a dwelling house. The Second Defendant refused the application on 30 May 2013.

The Claimant appealed and the appeal was decided by way of written representations, on 23 December 2013 (“the 2013 Decision”). An Inspector (hereinafter “the first Inspector”) allowed the appeal in respect of the southern part of the Site, but not the northern part which lay to the north of a privet hedge running across the Site. The southern part of the Site contained the dwelling house, driveway, garages and outbuildings, garden ornamentals, shrubs etc. The first Inspector found that the use of the southern part of the Site for purposes incidental to the enjoyment of the dwelling house was uncontroversial and supported by the evidence. The first Inspector certified that, in respect of the land to the south of the privet hedge, as shown on the attached plan, “[t]he use of the land ….. for purposes incidental to the enjoyment of the dwelling house commenced before 23 March 2013 and has continued.”.

However, the first Inspector concluded that the Claimant had failed to demonstrate, on the balance of probability, that the use of the land to the north of the privet hedge for purposes incidental to the enjoyment of the dwelling house commenced prior to the material date.

On 21 January 2014, the Claimant again applied to the Second Defendant for a lawful development certificate for the use of land as incidental to the enjoyment of a dwelling house. The Second Defendant refused the application on 26 March 2014.

The Claimant appealed. The Inspector (Mr Morden) held a 2 day Inquiry and conducted a site visit. In his Decision dated 19 January 2016 (“the 2016 Decision”), he concluded that the Claimant had failed to demonstrate that the northern part of the Site was in use for residential purposes incidental to the use of the dwelling house, and that such use commenced prior to 21 January 2004, and had continued since that date. He considered that the northern part of the Site was different in character and appearance to the southern part of the Site, as it was more like a large landscaped garden, laid to lawn with trees, than a residential garden with flower beds, pot plants etc. He concluded that the family’s activities on the northern part of the Site were insufficient to amount to incidental residential use. As the northern part of the Site was not being used for any other purpose, he concluded that it had a “nil use”.

The Claimant applied to quash the 2016 Decision and Collins J. granted permission on the papers on 9 May 2016.

Under section 288 TCPA 1990, a person aggrieved may apply to quash a decision on the grounds that (a) it is not within the powers of the Act; or (b) any of the relevant requirements have not been complied with and, in consequence, the interests of the applicant have been substantially prejudiced.

The general principles of judicial review are applicable to a challenge under section 288 TCPA 1990. Thus, the Claimant must establish that the Secretary of State misdirected himself in law or acted irrationally or failed to have regard to relevant considerations or that there was some procedural impropriety.

The exercise of planning judgment and the weighing of the various issues are matters for the decision-maker and not for the Court: Seddon Properties v Secretary of State for the Environment (1978) 42 P. & C.R. 26. As Sullivan J. said in Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, at [6]:

An Inspector is required to give adequate reasons for his decision, pursuant to Rule 18 of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000. The standard of reasons required was described by Lord Brown in South Bucks District Council and Anor v Porter (No 2) [2004] 1 W.L.R. 1953, at [36].

An Inspector’s decision letter must be read (1) fairly and in good faith, and as a whole; (2) in a straightforward down-to-earth manner, without excessive legalism or criticism; (3) as if by a well informed reader who understands the principal controversial issues in the case: see Lord Bridge in South Lakeland v Secretary of State for the Environment [1992] 2 AC 141, at 148G-H; Sir Thomas Bingham MR in Clarke Homes v Secretary of State for the Environment (1993) 66 P. & C.R. 263, at 271; Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26, at 28; and South Somerset District Council v Secretary of State for the Environment (1993) 66 P. & C.R. 83.

Section 191 TCPA 1990 provides:

By section 57(1) TCPA 1990, planning permission is required for the development of land. Section 55 TCPA 1990 provides, so far as is material:

It is convenient to consider Grounds 1 and 2 together, as there is some overlap between them. Under Ground 1, the Claimant submitted that the Inspector had erred in excluding certain uses from his consideration of what could amount to a residential use of land, or uses incidental to residential use. Under Ground 2, the Claimant submitted that the Inspector failed to take account of relevant considerations and his decision was irrational.

In response, Ms Parry submitted that the Claimant was, in reality, challenging the planning merits of the Inspector’s decision, which was impermissible. The judgment which the Inspector had to make, namely, whether the northern part of the Site had been used in a way that was incidental to the residential use of the house for over 10 years, was plainly one of fact and degree, depending substantially on the impressions gained by the expert Inspector at the Site visit and from hearing evidence at the Inquiry. The Court should be slow to interfere in such circumstances, and the threshold of irrationality was a difficult obstacle for the Claimant to surmount.

Ms Parry’s legal analysis was plainly correct. I agree that, in the Claimant’s wide-ranging written and oral submissions, there were occasions where he was, in reality, challenging the planning merits of the Inspector’s decision. In particular, on numerous occasions where he sought to challenge the Inspector’s findings on the grounds that they were inconsistent with the evidence. I do not consider that the Claimant has succeeded in establishing that the decision was irrational. However, I have reached the conclusion that the Claimant has identified some errors in the Inspector’s approach which amount to errors of law, and could have affected the outcome.

The question which the Inspector had to determine under section 191 TCPA 1990 was whether there was a lawful existing use of the land for residential purposes incidental to the residential use of the dwelling-house. As a convenient shorthand, I will refer to this as “incidental residential use”. He approached this question by considering whether a use of the land for residential purposes had commenced prior to 21 January 2004 (ten years before the date of the CLUED application), and had continued since that date, in which case it would have become immune from enforcement proceedings. Under Ground 3 below, I have concluded that he ought also to have considered whether, as at the date of the CLUED application on 21 January 2014, a use of the land for residential purposes was lawful since it did not constitute development by virtue of the dwelling-house exception in section 55(2)(d) TCPA 1990.

The land identified in the application notice was the entirety of the Site. There was a lawful existing use as a dwelling-house on the Site and the 2013 Decision had certified that there was a lawful existing use for purposes incidental to the enjoyment of the dwelling-house south of the privet hedge. So the only issue in dispute was the existing lawful use of the area of land to the north of the privet hedge which had been excluded from the certificate in the 2013 Decision.

It was apparent from the photographic evidence (which dated back as early as the 1970’s) that the entire Site was open until 2000 when the Claimant installed a privet hedge, accompanied by a temporary post and rail fence, running west to east across the Site, with gaps for access, wide enough for a mower. In 2014, the Claimant removed almost all the hedge, and the remnants of the fence, but the line of the former hedge continued to be used as the boundary in the determination of this application.

The Claimant contended that there had been a material change of use of the northern part of the Site from its previous agricultural use as a smallholding to incidental residential use. He submitted that the change of use had occurred when he developed the unbuilt land on the Site into one residential garden, between 1998 and 2000.

At the Inquiry, the parties cited the well-known passage in Burdle v Secretary of State for the Environment [1973] 3 ALL ER 240, where Bridge J. identified the approach to be adopted, at 244:

I do not accept the Claimant’s submission that the Inspector failed to follow the approach in Burdle. He was not required to refer to it directly. It is apparent from Decision Letter (“DL”) paragraphs 4 and 5 (DL4 & 5) that his starting point was to treat the whole Site as the planning unit, as it was an undivided parcel of land in the ownership of the Claimant. This was in accordance with Burdle. The Inspector’s conclusion, at DL42, that the northern part of the Site had a different use to the rest of the Site, despite being in the same ownership, was in principle consistent with the third situation identified in Burdle, as relied upon by the Second Defendant in its submissions. The Inspector’s general observations at paragraph 32 were not inconsistent with Burdle and were not otherwise incorrect or inappropriate.

In my judgment, the Inspector was not obliged to apply or have regard to the other appeal decisions provided by the Claimant since these turned on the evidence relevant to the particular site, and were plainly distinguishable.

I consider that the first error in the Inspector’s approach was his failure to take into account the Second Defendant’s concession that there had been a change of use of the northern part of the Site to incidental residential use from about April 2013, because of the changes in appearance and use of the land. Although this concession was expressly made in the Second Defendant’s written closing submissions, the Inspector did not refer to it in his decision, and did not analyse the evidence so as to consider the basis for the distinction drawn by the Second Defendant before and after April 2013. His conclusion was that the northern part of the Site had a nil use throughout the Claimant’s ownership of the Site, and continued to do so. The Inspector was thus in the unusual position of disagreeing with both parties as to the current use. Even the objector neighbours accepted that there had been lawn games and gardening activities since the first part of 2013 (paragraphs 38 and 39 of the 2013 Decision).

The Inspector correctly directed himself that the onus of proving the lawfulness of an existing use or development rested on the applicant, and the test was the balance of probabilities. However, the ‘Planning Practice Guidance’ (“PPG”) provides:

In Gabbitas v Secretary of State for the Environment [1985] JPL 630, an Inspector’s decision on an appeal against an enforcement notice was quashed on the ground that he had failed to direct himself properly as to relevant considerations by rejecting the applicant’s unchallenged evidence without giving any reasons for doing so and requiring corroboration of his evidence by an independent witness.

In my judgment, the PPG and Gabbitas lend support to my conclusion that the Inspector erred in not taking account of the Second Defendant’s concession that there had been an incidental residential use from 2013, which supported the Claimant’s case, at least from 2013 onwards.

Alternatively, if the Inspector did have regard to the concession but disagreed with it, he ought to have given his reasons for not accepting the consensus of the parties on this issue.

The second error in the Inspector’s approach was discounting the Claimant’s gardening activities when assessing incidental residential use. The Inspector said (emphasis added):

Whilst it is obviously correct that non-residential land has to be maintained, this does not mean that a home owner’s gardening activities should not be taken into account in assessing incidental residential use. In my view, tending the garden in which a dwelling-house is situated is quintessentially an activity carried out by home owners incidentally to the residential use of the dwelling-house. As well as being necessary to keep the land tidy, some (like the Claimant) find gardening creative and enjoyable. Moreover, although fruit and vegetable growing could be an agricultural activity, a fruit and vegetable patch in a private garden which merely provides produce for the occupants would usually be considered as incidental to the residential use, as the Inspector himself acknowledged in discussion at the Inquiry.

The Inspector accepted the Claimant’s evidence, supported by photographs, of the extensive landscaping, planting and maintenance which he had carried out over the years, in both the southern and northern parts of the Site. The Claimant had planted specimen trees in the northern part, and levelled, repaired and mowed the lawn, with the result that the lawn in both the southern and the northern parts of the Site had the same texture and appearance. The Claimant had also created the fruit and vegetable patch and a composting area and installed a greenhouse in the northern part. The compost was used throughout the Site, including the southern part.

The evidence demonstrated that the Claimant, largely through his own toil, has transformed a semi-derelict smallholding and field into a fine garden. The ongoing maintenance, which he does himself, represents a substantial commitment of time and effort. In my judgment, on the facts of this case, the Claimant’s gardening activities ought to have been fully taken into account when assessing the incidental residential use of the northern part of the Site. If the Inspector had done so, it could have affected his conclusion that there was insufficient evidence of incidental residential use.

The third error in the Inspector’s approach was in respect of the Claimant’s use of the Site as a place to stroll around, sit out, and walk his dogs. The Inspector accepted the Claimant’s evidence on this issue, stating:

However, in his conclusions the Inspector discounted these activities, to some extent, when assessing the extent of the incidental residential use, saying:

In my judgment, the Inspector erred in holding that “just walking around on [the land] and enjoying it for its appearance sake either from the dwelling or when on the land” could not be “sufficient” to amount to a residential use or activity incidental to a residential use. In my judgment, this was incorrect. In principle, an owner’s recreational use and enjoyment of a plot of cultivated land in which his dwelling-house is situated can amount to a use of the land which is incidental to residential use. It will depend on the facts in the particular case. Obviously if the owner has a large estate, some of his land which he is using or enjoying in this way may have a different use such as horse paddocks, woodland, or agricultural. But on the Claimant’s case, he was simply enjoying his enlarged garden.

I also consider that the Inspector’s conclusion, in DL41, that the time thus spent on the land was “minimal”, was curiously at odds with his earlier acceptance that it took place very regularly, on more days than not (DL25 & 26). The evidence before the Inspector was that the Claimant had been based at home since his semi-retirement in 2001. It was not in dispute that the land was kept available for use by the Claimant and his family at all times; it had no other use. I agree with the Claimant’s submission that, if the Inspector accepted that the land was being used for these incidental residential activities for some of the time, the mere fact that the Claimant was not in his garden at a particular hour did not mean that the land ceased to be in use for incidental residential purposes for that hour. An analogy may be drawn with residential use which continues, even when there is no one physically in the dwelling.

For the reasons which I have set out in paragraphs 39 and 40 above, I consider these activities were not fully taken into account by the Inspector when assessing whether there was sufficient evidence of incidental residential use, and so his error could have affected the outcome.

Further, or in the alternative, I consider that the Inspector failed to give adequate reasons for his conclusions that the time spent on these activities was minimal having regard to his earlier findings on the evidence (see Ground 4).

Under Ground 3, the Claimant submitted that the Inspector erred in not considering and determining the factual and legal issues which he raised about the extent of the curtilage of the dwelling-house, which were relevant to the question whether there was a lawful existing use pursuant to the dwelling-house exception in section 55(2)(d) TCPA 1990, as at the date of his CLUED application on 21 January 2014.

In response, the First Defendant submitted that the Inspector was not required to consider this issue because it was not identified in the CLUED application form or in the Claimant’s submissions at the appeal. Furthermore, since the Inspector found that there was no existing residential use in the northern part of the Site, he could not have certified that there was an existing lawful use of the land.

In my judgment, the Inspector erred in refusing to consider the potential relevance of the curtilage and section 55(2)(d) TCPA 1990 to the Claimant’s application.

The phrase “any existing use of buildings or other land is lawful” in section 191(1)(a) TCPA 1990 reflects the terms used in section 55 TCPA 1990, which provide that “development” includes “the making of any material change in the use of any buildings or other land”. However, section 55(2)(d) provides that “the use of any buildings or other land within the curtilage of a dwelling house for any purpose incidental to the enjoyment of the dwelling-house as such” shall not be taken to involve development for the purposes of the TCPA 1990.

Under section 191(2)(a), there were two alternative routes by which the Claimant might be able to establish that an incidental residential use of the northern part of the Site was lawful (assuming that he was able to establish that an incidental residential use was in existence at the relevant time). The first route was to establish that, as at the date of the Claimant’s application, on 21 January 2014, no enforcement action could be taken in respect of an existing incidental residential use within the curtilage of the dwelling-house because, by virtue of the exception in section 55(2)(d), it did not constitute “development”. The second route was to establish that no enforcement action could be taken in respect of an existing incidental residential use because it had commenced prior to 21 January 2004, and had continued thereafter, so the ten year time limit for enforcement action had expired.

The Claimant has throughout been acting as a litigant in person, obtaining some advice from a planning lawyer, but drafting all the documents and submissions himself. Although he has accessed some planning law materials, his grasp of planning law is far from the level of a trained professional. In my view, the Inspector had to make allowances for the fact that the Claimant was not professionally qualified.

It would have been apparent to the Inspector from the 2013 Decision that the Claimant’s first CLUED application was stated to be “an application for a lawful development certificate for the existing use of land as domestic curtilage incidental to the enjoyment of a dwelling-house”. This wording was obviously based upon the terms of section 55(2)(d) TCPA 1990.

In the 2013 Decision, the first Inspector refused to use the Claimant’s wording, saying:

The first Inspector certified that, in respect of the land to the south of the privet hedge, “[t]he use of the land ….. for purposes incidental to the enjoyment of the dwelling house commenced before 23 March 2013 and has continued.”

In his second CLUED application, the Claimant applied for “a Lawful Development Certificate (LDC) for the existing use of land for purposes incidental to the enjoyment of a dwelling house”. He based this wording on the terms used by the first Inspector in the 2013 certificate.

However, in the 2016 Decision, a different Inspector again refused to use the Claimant’s wording, stating:

Then, in paragraph 4, the Inspector identified the main issue as whether “the use of the land …..for residential purposes incidental to the use of the dwelling house commenced prior to 21 January 2004, and has continued since that date”. He made no mention of the dwelling-house exception in section 55(2)(d).

It is correct, as Ms Parry submitted, that in his application form the Claimant had only ticked the pro forma ground which states “[t]he use began more than 10 years before the date of this application”. He ought also to have ticked the box which read “Other – please specify (this might include claims that the change of use or building work was not development or that it benefited from planning permission granted under the Act or by the General Permitted Development Order)” and given details.

However, I do not consider that this omission by a litigant in person absolved the Inspector from considering the section 55(2)(d) ground, particularly since the statutory provision and relevant case law was relied on extensively by the Claimant in his grounds of appeal and statement of case. For example, the Claimant referred to Sinclair-Lockhart’s Trustees v Central Land Board (1950) 1 P. & C.R. 195; Dyer v Dorset County Council [1989] 1 Q.B. 346; Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions [1999] 2 P.L.R. 109; Collins v Secretary of State for the Environment [1989] E.G.C.S. 15; Sumption v Greenwich LBC [2007] EWHC 2776 (Admin) and Lowe v First Secretary of State [2003] JPL 1281.

The Claimant sought to apply the legal principles in the case law to the facts of his application, submitting that the entirety of the Site now fell within the curtilage of the dwelling-house, and was in use for purposes incidental to the enjoyment of the dwelling-house, within the meaning of section 55(2)(d) TCPA 1990. The Second Defendant also engaged to some extent with this issue, seeking to distinguish the case of Sumption v Greenwich LBC in oral and written submissions.

Given that the Second Defendant conceded at the Inquiry that, on the evidence, the Claimant had established an existing incidental residential use in the northern part of the Site from April 2013, it was not unreasonable for the Claimant to argue that he could establish such a use as at January 2014.

The curtilage of the dwelling-house was very narrowly delineated in the Land Registry plan of 1967 which was before the Inspector. However, the Inspector also had copies of correspondence and plans from the Second Defendant which showed that, following grants of planning permission in the 1980’s and 1990’s, the dwelling-house had been extended significantly and so had the curtilage of the dwelling-house. Planning permission was granted in 1984 to extend the 1930’s bungalow in size and convert it into a two-storey dwelling-house. Planning permission was granted in 1990 to erect a large garage/workshop/stores building at some distance to the west of the house, but this permission was not implemented. Planning permission was again granted in 1993 to erect a large garage/workshop/stores building behind the house, on condition that the disused agricultural buildings (apart from a small stable/pigsty) were demolished.

In the 2013 Decision, the Inspector addressed the question of the curtilage, stating:

This passage indicated that the Second Defendant and the first Inspector considered that the curtilage had, by 2013, been further extended to include the entirety of the area south of the privet hedge. It was at least arguable that the curtilage had since been further extended to include the northern part of the Site.

The Inspector dealt with these submissions in the following way:

In the light of the submissions made to him, and the material before him, I consider that Inspector erred in not considering and determining the Claimant’s submission that, under section 191(2) TCPA 1990, as at the date of the Claimant’s application, on 21 January 2014, no enforcement action could be taken in respect of the claimed incidental residential use of the northern part of the Site as it was within the curtilage of the dwelling-house, and so by virtue of the exception in section 55(2)(d) TCPA 1990, it did not constitute “development”.

Ms Parry rightly points out that, even if the Inspector had considered this issue, he would still have refused to grant a certificate of existing lawful use since his conclusion on the evidence was that there was no incidental residential use of the northern part of the Site. However, this does not assist the Defendant since that I have also found that his approach to that question was flawed, under Grounds 1 and 2.

The Claimant submitted in his Grounds that the Inspector’s reasons were inadequate because he had failed to explain why certain uses were not residential or why the extent of the curtilage was irrelevant to his decision. He provided further examples in his response to the Defendant’s Grounds.

This ground has been largely overtaken by my conclusion that the Inspector erred in law in his approach to the decision-making process. However, I have held that the Inspector’s reasons were inadequate at paragraphs 32 and 42 of my judgment.

In view of my conclusions, the issue of a partial certificate does not fall to be decided.

The basis of Ground 6 was that, after the Inquiry, the Second Defendant and an interested party wrote to the Inspector stating that the Claimant had not provided them with a copy of a memory card upon which he had recorded the Inquiry. An officer of the Planning Inspectorate subsequently confirmed that the Inspector had been mistaken in advising the parties at the Inquiry that the Claimant had to make his copy of the recording available to other parties. The Claimant submitted that these communications with the Inspector were unfair, in breach of the statutory procedures, and probably prejudiced the Inspector against him.

I accept the Defendant’s submission that these communications were not improper; they had no bearing on the matters which the Inspector had to decide; and they were most unlikely to have influenced the Inspector adversely against the Claimant. Therefore I reject Ground 6.

For the reasons I have set out above, the Inspector erred in law in making his decision. Absent those errors, his conclusions could have been different. Accordingly, it is appropriate to quash the decision.

I refuse the Claimant’s application for damages, as this is a statutory review procedure and the only remedies are those which are set out in section 288 TCPA 1990. They do not include the award of damages. However, the Claimant is entitled to make an application for costs, which he should do in writing.