Applicant appealing refusal of planning permission – Inspector finding residential use of site abandoned and dismissing appeal – Whether inspector failing to take into consideration evidence as to owner’s intention – Application allowed
In 1990 the applicant purchased a property that was in an extremely poor condition and sought to replace it with a new bungalow. South Holland District Council refused planning permission for the proposal. On 23 October 1998 the first respondent’s inspector found that the residential use of the site had been abandoned, and dismissed the applicant’s appeal against the refusal of planning permission. In her decision letter, the inspector found that the applicant had always intended to live in the property. Pursuant to section 288 of the Town and Country Planning Act 1990, the applicant applied to quash this decision on the ground that she had failed to have regard to material considerations when considering the issue of abandonment: notably the intention of the owner during the relevant period. It was common ground that the decision maker had to take into consideration four factors: (i) the physical condition of the building; (ii) the period of non-use; (iii) whether there had been any other use; and (iv) evidence regarding the owner’s intention: see Trustees of the Castell-y-Mynach Estate v Secretary of State for Wales [1985] JPL 40. The applicant submitted that, on the basis of her conclusions on abandonment, the inspector must have considered that it had occurred pre-1990, but that she failed to make any findings as to the intention of the owner. The respondents submitted that consideration of the intention of the previous owner would have made no difference. The inspector had found in favour of the applicant under the fourth factor, and, further, even strong evidence of an owner’s intention not to abandon was not determinative.
Held: The application was allowed.
Abandonment carried with it the notion of intention. It was the cessation of a use with no intention to resume: see Hartley v Minister of Housing and Local Government [1970] 1 QB 413. Evidence under factor (iv) referred to all the evidence of the owner’s intention, which could be gleaned from a variety of sources, and included the owner’s express statements. However, other evidence under factors (i), (ii) and (iii) may outweigh those express statements. The position here was that the previous owner had not intended to abandon the use, despite the difficulties concerning the physical condition of the building. It was wrong for the respondents to submit that if it were found that the owner did not intend to abandon the use, one may go on to hold that there was abandonment because of the physical condition of the building.
Christopher Boyle (instructed by Mossop & Bowser, of Holbeach) appeared for the applicant; Alice Robinson (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondents did not appear and were not represented.
Sarah Addenbrooke, barrister
