Town and Country Planning – Change of use – Temporary stop notice (TSN) – Defendant local authority serving temporary TSN on hotel owner alleging breach of planning control – Claimant hotel operator applying for judicial review of decision to serve TSN – Court refusing application for interim injunction – TSN expiring – Whether judicial review proceedings misconceived – Whether TSN lawful – Application dismissed
S Ltd owned the Quality Hotel at Tettenhall Road in Wolverhampton. The hotel was operated by the claimant. On 10 November 2015, the defendant local authority served on S Ltd a temporary stop notice (TSN) alleging a breach of planning control. The alleged breach was described as “Without planning permission, the carrying out of a material change of use from hotel to a mixed use as a hotel and hostel, or to use as a hostel”. The TSN was said to take effect on 10 November 2015 and expired 28 days later. On 12 November, the claimant issued an application for judicial review of the defendants’ decision to serve the TSN. The claimant was subsequently granted permission to apply for judicial review. The remedy claimed in the claim form was limited to an interim injunction or an order quashing the TSN. The court refused the application for interim relief and the TSN expired in early December 2015 but the claimant continued with the judicial review application.
The defendants contended that the judicial review proceedings were misconceived because, if the claimant’s case was correct, it would have three alternative remedies: (i) to seek compensation as expressly provided for in section 171H of the Planning and Compulsory Purchase Act 2004; (ii) to apply for planning permission for use as a hostel or mixed use as hostel and hotel under section 62 of the Town and Country Planning Act 1990; or (iii) to apply for a certificate of lawfulness of existing use or development under section 191 of the 1990 Act.
The claimant said that it presently sought a declaration that the defendant acted unlawfully in issuing the TSN. As to the lawfulness of the TSN, in all the circumstances, the defendants had acted irrationally in having concluded that there had been or was going to be a breach of planning control. Further, even if the TSN itself had been lawful, the defendants had not demonstrated an immediate need for urgent action or that it had been expedient to issue the TSN. Accordingly, the decision to issue the TSN had been irrational.
Held: The application was dismissed.
(1) There was considerable force in the argument that the temporary nature of the process had been designed for urgent situations only and was therefore not designed to be susceptible to judicial review proceedings. However, for present purposes, the court was prepared to accept that there might be circumstances in which judicial review of TSNs could be appropriate but it had not been appropriate in the present case. The judicial review proceedings were misconceived because all three of the alternative remedies were plainly available to the claimant. One or more of them was of much greater practical value to the claimant than the present proceedings. Further, and in any event, judicial review was wholly inappropriate in a case, such as the present, where the TSN had itself expired.
(2) Assuming that the TSN procedure was susceptible to judicial review, it would be axiomatic that, for the judicial review to have any applicability whatsoever, the TSN had still to be in force. It might be possible to think of circumstances in which some form of interim relief by way of a judicial review application might be appropriate, but only if there was an urgent need to strike down the TSN well within the 28 days. But this was not the present case. The application for an interim remedy had been refused and the TSN had expired. The alternative remedies might be available, but judicial review plainly was not. The claimant now sought a declaration that the defendant acted unlawfully in issuing the TSN. That amounted to a last-minute application fundamentally to amend the judicial review claim to seek relief/remedy which had formed no part of the original application. The necessary permission to amend would not be granted because the application was so late and the proceedings had no utility anyway. On that basis too, the proceedings had to be dismissed.
(3) Even if the court was wrong not to grant permission to amend, or about the alternative remedies, the submission that, in all the circumstances, the authority had acted irrationally in concluding that there had been or was going to be a breach of planning control would be rejected. The circumstances in the present case came nowhere near the sort of situation required to demonstrate irrationality. The use of a building as a hostel, either in whole or in part, required express planning permission because of the perceived damage that the use of a building as a hostel might do to the locality. That was why it was equated with, among other things, scrapyards and amusement arcades. The defendants, as the relevant local authority, was obliged to ensure that that aspect of planning control was properly adhered to. If there was any risk that it would not be, the defendants were entitled to consider the use of the TSN procedure: Commercial and Residential Property Development Co Ltd v Secretary of State for the Environment [1982] JPL 513 and Panayi v Secretary of State for the Environment [1985] JPL 783 applied.
(4) Section 171E of the 2004 Act made plain that the TSN procedure was activated if the local planning authority might that it was expedient that the activity which amounted to the breach was stopped immediately. That gave a planning authority in the positon of the defendants a relatively wide latitude. Provided there was sufficient information to justify the thought that it was expedient to use the TSN process, it was sufficient to justify the decision. Later information which was not reasonably available to the defendant could not be relevant to any consideration of rationality
Freddy Humphreys (instructed by Ferdinand Kelly Solicitors, of Birmingham) appeared for the claimant; Timothy Jones (instructed by Wolverhampton City Council) appeared for the defendants.
Eileen O’Grady, barrister
Click here to read transcript: Carespec Ltd v Wolverhampton City Council