Dwelling-house left unoccupied and falling into disrepair – Respondent purchasing building in extremely poor condition – Application for planning permission to replace building refused – Whether use of building abandoned – Whether intention of owner decisive – Judge allowing appeal – Secretary of State’s appeal allowed
G was the owner and occupier of a property known as the Challenge, Childersgate Lane, Sutton St James, South Lincolnshire (the building). In 1963 he bought and moved into another property. G considered letting the building but decided that it was not economically viable, and the building was left unoccupied. It fell into decay and was used for the storage of animal feed. In 1986 it was vandalised by the removal of slates from the roof.
In 1990 the respondent purchased the building in extremely poor condition. He sought to replace it with a bungalow and applied for the relevant planning permission. South Holland District Council refused the application. The respondent appealed and an inspector was appointed, who found that residential use of the site had been abandoned and, on that basis, dismissed the appeal. The applicant applied pursuant to section 288 of the Town and Country Planning Act 1990 for the inspector’s decision to be quashed, contending that the inspector had failed to have regard to material considerations when considering the issue of abandonment, in particular the intention of G during the relevant period. The judge allowed the appeal, holding that it had not been G’s intention to abandon the building. That was decisive on the issue of abandonment since, where an owner did not intend to abandon a building, it could not be held that there was abandonment because of its physical condition. The Secretary of State appealed.
Held: The appeal was allowed.
The case of Trustees of Castell-y-Mynach Estate v Secretary of State for Wales [1985] JPL 40 laid down the criteria to be considered when determining whether the residential use of an existing building had been abandoned, namely: (i) the physical condition of the building; (ii) the length of time for which the building had not been used for dwelling purposes; (iii) whether the building had been used for other purposes; and (iv) evidence regarding the owner’s intentions. Those criteria were of equal relevance and were to be tested by considering whether a reasonable man with knowledge of all the circumstances would conclude that the building had been abandoned (see Hartley v Minister of Housing and Local Government [1970] 1 QB 413). The test was an objective one and, accordingly, the deputy judge had been wrong to regard the wishes and intentions of the owner as the determinative factor. The intention of G had been only one of the factors to be taken into account by the inspector, who, in evaluating all the circumstances, had been entitled to conclude that residential use had been abandoned.
Alice Robinson (instructed by the Treasury Solicitor) appeared for the Secretary of State; Anthony Anderson QC and Christopher Boyle (instructed by Gregory Rowcliffe & Milners, as London agents for Mossop & Bowser, of Holbeach) appeared for the respondent.
Thomas Elliott, barrister
