Town and country planning – Certificate of lawful existing use or development (CLEUD) – Incidental residential use – Claimant applying to quash decision of inspector dismissing appeal against refusal of certificate of lawful existing use or development – Whether inspector erring in excluding certain uses from consideration of residential use or incidental to residential use – Whether inspector erring in law – Application granted
The claimant owned a property known as Glenthorne, Five Ways Road, Hatton, Warwickshire, comprising a dwelling-house and 3.5 acres of land. There had been a smallholding on the site years ago. The claimant purchased the site in 1996 when the land was overgrown and the southern part of the site, to the rear of the dwelling-house, was semi-derelict and included the concrete bases of old agricultural buildings and piles of bricks. The northern part of the site was paddock grass being cut by a farmer. Over the years, the claimant had removed the remnants of the smallholding and cultivated the land. He claimed that it was now one extensive garden, which was in regular use for normal residential activities by the claimant and his family.
An application by the claimant for a certificate of lawful existing use or development (CLUED) under section 191 of the Town and Country Planning Act 1990 was refused by the second defendant local authority. In 2013, an inspector appointed by the first defendant secretary of state allowed the claimant’s appeal against that decision in part, concluding that the south of the site, containing the dwelling house, driveway, garages and outbuildings, garden ornamentals, shrubs etc, was used for purposes incidental to the enjoyment of the dwelling house. However the claimant had failed to demonstrate, on the balance of probabilities, that the land to the north of the site had been so used. On 21 January 2014, a second application in respect of the site to the north was refused. In 2016, following a two day inquiry and a site visit, an inspector dismissed the claimant’s appeal. He considered that the northern part of the site was different in character and appearance to the south, as it was more like a large landscaped garden, laid to lawn with trees, than a residential garden. He concluded that the family’s activities were insufficient to amount to incidental residential use.
The claimant applied under section 288 of the 1990 Act to quash the 2016 decision.
Held: The application was granted.
(1) The question for determination under section 191 of the 1990 Act was whether there was a lawful existing use of the land for residential purposes incidental to the residential use of the dwelling-house. The inspector had approached that question by considering whether a use of the land for residential purposes had commenced prior to 21 January 2004 (10 years before the date of the CLUED application), and had continued since that date, in which case it would have become immune from enforcement proceedings. The inspector had erred by failing to take into account the second defendants’ express concession that there had been a change of use of the northern part of the site to incidental residential use from about April 2013, because of the changes in appearance and use of the land. He had correctly directed himself that the onus of proving the lawfulness of an existing use or development rested on the applicant and the test was the balance of probabilities. However, the “Planning Practice Guidance” (PPG) provided that, in the case of applications for existing use, if a local planning authority had no evidence to contradict or otherwise make the applicant’s version of events less than probable, there was no good reason to refuse the application, provided the applicant’s evidence alone was sufficiently precise and unambiguous to justify the grant of a certificate on the balance of probability: Gabbitas v Secretary of State for the Environment [1985] JPL 630 considered.
(2) The inspector erred in his approach by discounting the claimant’s gardening activities when assessing incidental residential use. Tending the garden in which a dwelling-house was situated was quintessentially an activity carried out by home owners incidentally to residential use. Moreover, a fruit and vegetable patch in a private garden which merely provided produce for the occupants would usually be considered as incidental to the residential use. The inspector accepted the claimant’s evidence, supported by photographs, of the extensive landscaping, planting and maintenance which he had carried out over the years, on the whole site. On the facts, the claimant’s gardening activities ought to have been fully taken into account when assessing the incidental residential use of the northern part of the site. If the inspector had done so, it could have affected his conclusion that there was insufficient evidence of incidental residential use.
(3) On the evidence, the inspector had erred in holding that walking around on the land and enjoying its appearance, either from the dwelling or when on the land, was not sufficient to amount to a residential use or activity incidental to residential use. In principle, an owner’s recreational use and enjoyment of a plot of cultivated land in which his dwelling-house was situated could amount to a use of the land which was incidental to residential use. It depended on the facts in the particular case. It was not in dispute that the land was kept available for use by the claimant and his family at all times and had no other use. Those activities had not been fully taken into account by the inspector when assessing whether there was sufficient evidence of incidental residential use and his error could have affected the outcome. Further, the inspector failed to give adequate reasons for his conclusions.
(4) The inspector had erred in refusing to consider the potential relevance of the curtilage of the dwelling house and section 55(2)(d) of the 1990 Act to the claimant’s application. The phrase “any existing use of buildings or other land is lawful” in section 191(1)(a) of the 1990 Act reflected the terms used in section 55, which provided that “development” included “the making of any material change in the use of any buildings or other land”. The claimant had throughout been acting as a litigant in person. The inspector had to make allowances for the fact that the claimant was not professionally qualified. In the light of the submissions and the material before him, the inspector erred in not considering and determining the claimant’s submission that, under section 191(2), as at the date of the claimant’s application, on 21 January 2014, no enforcement action could be taken in respect of the claimed incidental residential use of the northern part of the site as it was within the curtilage of the dwelling-house, and so by virtue of the exception in section 55(2)(d), it did not constitute “development”.
The claimant appeared in person; Clare Parry (instructed by the Government Legal Department) appeared for the first defendant; the second defendants did not appear and were not represented.
Eileen O’Grady, barrister
Click here to read a transcript of O’Flynn v Secretary of State for Communities and Local Government and another.
