Council revoking certificate of lawful use – Whether council erred in failing to notify owner and occupier of affected land – Whether their decision to revoke Wednesbury unreasonable – Application allowed
Weylands Treatment Works (WTW) was the lessee of a site for which the respondent council had granted a certificate of lawfulness of existing use or development (CLEUD). The certificate provided for: “Use of part of the land for the transfer and re-cycling of inert material and for skip hire, haulage and demolition contractor’s business”. WTW was registered as proprietor of the land in January 1997. At that time, a third party asked a photogrammetrist to consider aerial photographs of the land. His report concluded, inter alia, that there was no evidence of waste materials being broken up, sorted or stored at the site. This led to the council conducting their own investigation. In February 1998 WTW transferred the land to Bridge Court Holdings (BCH). The transfer was not registered with the land registry.
In April 1998 the council’s officers recommended that the certificate be revoked in the light of reinterpretation of the aerial photographs. The council sent notice of their intention to revoke the certificate to WTW and notified others that they understood to have an interest in the land. In September 1998 the council’s committee confirmed the decision to revoke the certificate and notified WTW of the revocation.
At the end of September BCH’s solicitors wrote to the council, complaining that BCH, as the owner of the site, had not been notified of the revocation. WTW, BCH and the third applicant (who had been identified as an occupier of part of the land) applied for judicial review of the council’s decision to revoke the certificate. Two issues arose. The first was whether the council had disregarded statutory requirements as to service of the notice of revocation. It was submitted that BCH, as the owner of the land affected, and the third applicant, as an occupier of the land, should have been notified under the Town and Country Planning (General Development Procedure) Order 1995 Article 24(12). The applicants further contended that in order to ascertain the identity of the owner and occupier of the land, the council could have invoked the provisions of section 330 of the Town and Country Planning Act 1990, and their decision not to do so was unreasonable. The second issue was whether the council’s decision to revoke the certificate was Wednesbury unreasonable.
Held: The application was allowed.
1. Although BCH, as the freeholder, was the owner at the relevant time for the purposes of Article 24(12), on the evidence BCH was aware of the proposal to revoke before the revocation in fact took place. It therefore had an opportunity to make representations. Any failure to serve a notice on BCH did not cause prejudice to that company. However, the council were in breach of the mandatory duty in Article 24(12) in failing to give notice of the proposal to the occupier. While it was not unreasonable of the council not to invoke the procedure under section 330 of the 1990 Act, the existence of the third applicant as an occupier at the relevant time could have been ascertained had competent inquiries been carried out. The third applicant was substantially prejudiced as a result of the failure to do so.
2. The council’s decision to revoke was seriously flawed and was Wednesbury unreasonable. Their officers considered further investigations and other evidence to be necessary before a decision to revoke could be reached. Nevertheless, the council revoked the certificate without further investigations, or, if they were carried out, without disclosing or acting on the result of those investigations. Furthermore, during the course of the revocation procedure, the council failed to identify statements that they considered to be false. The scheme of the 1990 Act required the council, when giving notice under Article 24(12), to identify precisely those statements in a material particular that were said to be false. The council erred in failing to do so.
Clive Newberry QC and Jonathan Milner (instructed by Davies Arnold Cooper) appeared for the applicants; Richard Harwood (instructed by the solicitor to Surrey County Council) appeared for the respondents.
Sarah Addenbrooke, barrister
