Development – Material change of use – Enforcement action – Issue arising as to extent of lawful industrial use of claimants’ land – Defendants issuing enforcement notices for breach of planning control – Claimants applying for judicial review of decision to take enforcement action – Whether court having jurisdiction to deal with application – Whether defendants’ committee properly considering expediency of enforcement action – Whether committee failing to take account of material factors – Claim allowed
The first claimant owned a site in the green belt close to an area of outstanding natural beauty. The site contained two dwellings, an agricultural field and an area where general industrial use had taken place, which was used for recycling waste and other uses within Class B2 of the Town and Country Planning (Use Classes) Order 1987 (SI 1987/764). The second claimant held an option to develop the site, which had expired, but was keen to develop a waste-processing facility on the land.
In 2009, the defendant council decided to take enforcement action against an alleged change of use and certain operational development on the site. They accepted that an area on the plan submitted with an application for a certificate of lawfulness benefited from historic use in Class B2 and should not therefore be subject to enforcement action. However the claimants contended that the entire site enjoyed that status.
The claimants pointed out that, in the past, the site as a whole had been classified as Class B2 and that negotiations were ongoing with the defendants regarding lawful use. They contended that the defendants had erred in law in deciding to take enforcement action against the existing development since: (i) their development control committee’s consideration of the expediency of such action was flawed; (ii) the decision was irrational and unfair; and (iii) material factors had been ignored. An issue also arose whether the court had jurisdiction to hear the claim under section 285 of the Town and Country Planning Act 1990.
Held: The application was granted.
(1) Section 285 of the 1990 Act left for the court, on a claim for judicial review, residual grounds of challenge to the decision of a local planning authority to take enforcement action that fell outside the statutory appeal provided for in section 174. It was for the courts to determine where the line was to be drawn between the statutory grounds and the residual category, and the court had been cautious in drawing that line no further than the traditional boundaries of judicial review: R v Wicks [1998] 2 PLR 97 and Health and Safety Executive v Wolverhampton City Council [2010] EWCA Civ 892; [2010] PLSCS 224 considered.
The residual category of grounds was not limited to cases of bad faith or bias. It also included the exceptional case of a decision to issue the notice being based on irrelevant or improper grounds. If matters that were relevant to the question of expediency and beyond the reach of the statutory grounds of appeal were ignored, or if irrelevant matters were taken into account, section 285 did not exclude the court’s jurisdiction. Some matters raised in the instant claim were susceptible to judicial review, but they were to be clearly distinguished from the appraisal of planning merit required by an appeal under section 174(2)(a), the fact-finding exercise entailed in considering an appeal on ground (b), (c), (d) or (e), and the judgments called for by an appeal on ground (f) or (g).
Accordingly, in principle, an attack on the defendants’ decision on the expediency of taking enforcement action might legitimately be pursued by means of a claim for judicial review as long as the challenge belonged to the residual grounds outside the scope of section 174(2) of the 1990 Act.
(2) Section 172(1) of the 1990 Act required the committee to ask whether: (i) planning control had been breached (section 172(1)(a)); and, if so, (ii) it would be expedient to issue an enforcement notice: section 172(1)(b). Those two questions were separate because they distinguished between discerning a breach and deciding what, if anything, ought to be done about it. Both questions required the committee members to consider the relevant circumstances when they met. However, the second question, if it arose, also required them to ask themselves whether the public interest demanded that enforcement action should be taken at that stage, taking a reasonable view of the likely consequences of such an action. This was an essential element of the expediency decision.
In the instant case, the defendants had not approached that decision lawfully when they excluded from the committee members information and comment concerning the discussions that had taken place between the parties. The members ought to have been able to make up their own minds on the weight, if any, to be given to the negotiations. Without that factor, they could not properly strike a balance. This amounted to a basic and fatal error that attracted relief in a claim for judicial review, rather than one that could be left to an inspector on appeal.
(3) The defendants could not have it both ways on the relevance of the negotiations to their delegated decision to take enforcement action. If the negotiations were material to the delegated decision, they were material to the members’ decision from which the delegation sprang. Since they went to expediency, they were relevant at the committee stage, when that issue was addressed, and did not become so only after the members had made their decision. Moreover, if they were material, they were relevant in compliance and regularisation. It was necessary to consider whether a solution could be found through a development proposal.
(4) By preventing the second claimant from speaking at the committee meeting, the defendants had acted unfairly. The second claimant had something relevant to say and it was entitled to have its views that taken into account. The committee’s refusal to listen had been unreasonable. Fairness in the making of a planning decision extended to applicant and objector. This unfairness affected not only the second claimant, but also the first claimant, as the landowner facing potential enforcement action against the use of its site. The interests of both had been prejudiced. It was impossible to say whether what the second claimant wanted to say would not have made a difference to the members’ decision. For the members to deny themselves any discussion of those matters and how much, if any, weight, to give them was irrational: Hibernian Property Co Ltd v Secretary of State for the Environment (1973) 27 P&CR 197 considered.
David Elvin QC and Alex Goodman (instructed by Ashfords Solicitors, of Exeter) appeared for the claimants; Peter Towler and Gary Grant (instructed by legal department of Bath and North East Somerset Council) appeared for the defendants.
Eileen O’Grady, barrister
