Claimant demolishing series of buildings and replacing them with enlarged structure – Structure used as dwelling – Local planning authority refusing claimant planning permission for retention of new structure – Claimant appealing – Inspector dismissing appeal – Whether inspector failing to consider relevant policy in local plan – Claim dismissed
The claimant constructed a series of buildings without planning permission, which were used as work studios and for storage. In 1986 he was granted temporary permission for retention of the buildings, subject to conditions. Condition 1 provided that the buildings should be demolished no later than 1991, and condition 3 provided that they be used only for the purposes set out in the permission and not for residential purposes. In 1996 the claimant was granted permission in similar terms to the 1986 permission, save that the date for demolition was extended to 2001. However, by that date, the claimant had been using the buildings for a number of years for residential purposes.
Stroud District Council (the second defendants) served two enforcement notices upon the claimant. Notice A alleged that the residential use was in breach of a condition in the 1996 permission. Notice B alleged a breach of planning control as a result of the change of use of the buildings to a mixed use, which included residential use. The claimant appealed against both notices. In a decision letter dated 1998 (the 1998 decision), an inspector had allowed the claimant’s appeal against notice B because the alleged breach had taken place more than four years before the notice. The notice was therefore quashed under section 174(2) ground (d) of the Town and Country Planning Act 1990. Although the inspector had refused the appeal in respect of notice A, he had granted the claimant planning permission for temporary use of the buildings without the need to comply with condition 3. The claimant demolished the existing buildings and replaced them with an enlarged structure, which he used as a dwelling. The council refused the claimant planning permission for the retention of the replacement building and the claimant appealed.
In his decision letter of January 2001, the inspector determined that, having considered policy H17 of the local plan, it was inappropriate to grant permission for the residential development. Accordingly, the inspector refused the claimant’s appeal. The claimant sought to challenge that decision pursuant to section 288 of the Town and Country Planning Act 1990, principally on the ground that the inspector had directed his attention to the wrong policy. It was submitted that the 1998 inspector had decided that the change of use had taken place more than four years before the enforcement notice, and therefore the use was one against which no enforcement action could be taken. It followed that the use was a lawful use in accordance with section 191(2) of the Act, and was therefore not regulated by the 1996 permission and was not a temporary use. The present inspector had therefore erred, in that he had failed to take a material consideration into account, namely policy H21 of the local plan, and had failed to consider whether the building was a replacement of a permanent dwelling. The claimant further contended that the inspector had erred in carrying out the balancing exercise in section 54A of the 1990 Act, in that he had failed to give due weight to the claimant’s personal circumstances and the appropriate European Convention rights.
Held: The claim was dismissed.
Enforcement notice B alleged the breach of planning control to be the change of use of the buildings. If that had been the sole breach of planning control in respect of which complaint could have been made, the effect of the 1998 inspector’s decision under section 174(2) ground (d) would have been that the residential use was lawful. However, there was a simultaneous complaint that the residential use was in breach of a condition in the 1996 permission, and that breach was held to have taken place. The inspector giving the 2001 decision was entirely correct to treat the buildings that had been replaced as being usable for residential purposes only by reason of a temporary permission. He was therefore correct to view the replacement building as a temporary building. The provisions of policy H21 had no application. Further, the inspector dealt fully and fairly with the human rights considerations before reaching his decision.
Stephen Cottle (instructed by AE Smith & Son, of Stroud) appeared for the claimant; Rupert Warren (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Sarah Addenbrooke, barrister
