Applicant’s building in breach of planning control – Council issuing enforcement notice – Application for planning permission refused – Applicant seeking leave to appeal to Court of Appeal – Council deciding to take direct action to demolish building – Applicant seeking judicial review of decision to take direct action – Whether council failed to take appeal into account – Application refused
The applicant was the owner of land known as Pathfinder Farm, Ramscote Lane, Chesham, Buckinghamshire (the land), which was situated in open countryside within an approved Metropolitan Green Belt and the Chilterns Area of Outstanding Beauty. On January 5 1994 the respondents issued an enforcement notice which required the removal of a two-storey building (the building), situated on the land, not later than October 5 1995. The building had been completed in 1991 in breach of planning control. It was in an exposed position and was 39m long, 9m wide and 5m high and was being used for residential purposes by employees in the applicant’s ostrich enterprise carried on at the site. In June 1996 the applicant submitted a fresh application for planning permission for the building on the basis of the reduction of the ridge line by the removal of the upper storey. On January 2 1996 the application was refused and subsequently the appeal against that decision was also refused. The applicant sought leave to appeal to the Court of Appeal.
Pending the hearing for leave, the council decided to take direct action pursuant to section 178(1) of the Town and Country Planning Act 1990 in respect of the applicant’s failure to comply with the enforcement notice. On December 10 1996 they commenced entry on to the land. After preparatory steps to empty the building had been taken, but before demolition had begun, the applicant obtained an injunction to restrain the council from demolishing the building. The applicant applied for judicial review of the councils’ decision to take direct action. It was accepted that the council had a broad discretion in relation to their decision whether to take direct action under section 178(1) of the 1990 Act, but it was submitted that the councils’ discretion had not been exercised reasonably because they had failed to take account of the possible appeal against the refusal of planning permission.
Held The application was refused and the injunction restraining demolition discharged.
The fact that there was an appeal in process had been brought to the attention of the council when they had made their decision to take direct action pursuant to section 178(1) of the 1990 Act. The council had borne it in mind in relation to their steps to enforce the notice and they had concluded that the appeal had little possibility of success and therefore was of no impediment to their action. That decision had not been unjustified in the light of the inspector’s report and had been reasonable. Further it had not been unreasonable to delay the decision for direct action until December 1996 because there were genuine reasons for the delay. Therefore the decision had neither been irrational nor Wednesbury unreasonable.
The applicant, Linden Prescott Dyason, appeared in person; Anne Williams (instructed by the solicitor to Chiltern District Council) appeared for the respondents.
