Town and Country Planning Act 1971, sections 88 and 246 — Enforcement notices — Appeal against decision of Secretary of State dismissing appeals against enforcement notices — Breach of planning control alleged was change of use from hotel to hostel for homeless families — Planning authority considered that in a primarily residential area, with a large number of hotels and boarding houses, a proliferation of hostels for homeless families would strain local services — Appellant claimed that no change of use was involved and that a restriction in the class of guests accommodated was a derogation of permitted use — Planning authority argued that properties predominantly used to accommodate homeless families were not properly described as hotels — They were hostels and ‘hostel’ described a sui generis use, catering for a limited class of people, such as students, nurses, homeless persons and battered wives — The inspector appointed by the Secretary of State decided that the properties in question were being used as hostels and pointed to the length of stay, the mode of occupation, the attendance of children at local schools, the provision of communal washing facilities and the de facto use of kitchens for the preparation of food as among the indicia of hostel use — Held that it was impossible to say that the inspector had erred in law — The court rejected a submission that the decision of a previous inspector in 1982, which went the other way, rendered the matter res judicata — Each inspector must exercise his own judgment in the discharge of his statutory duty and cannot be fettered by the decision of a previous inspector — The court also rejected submissions that the inspector had taken into account an irrelevant consideration and had failed to take into account a relevant consideration — Appeals dismissed
The following
cases are referred to in this report.
Commercial
& Residential Property Development Co v Secretary
of State for the Environment (1982) 80 LGR 443; [1982] JPL 513
Mayflower
Cambridge Ltd v Secretary of State for the
Environment (1975) 30 P&CR 28; 73 LGR 517, DC
Panayi v Secretary of State for the Environment (1985) 50 P&CR
109
Rockhold
Ltd v Secretary of State for the Environment and
South Oxfordshire District Council [1986] JPL 130
These were
five appeals, by Aristophanes Thrasyvoulou, against the decision of the
Secretary of State for the Environment, through his inspector, dismissing
appeals by the appellant against enforcement notices served by the second
respondents, the London Borough of Hackney, in respect of a number of
properties in Wilberforce Road, London N4.
Nigel Macleod
QC and J C Harper (instructed by Frank E C Forney & Partners) appeared on
behalf of the appellant; John Laws (instructed by the Treasury Solicitor)
represented the Secretary of State (first respondent); Michael Barnes QC and
Miss A Williams (instructed by the borough solicitor, London Borough of
Hackney) represented the borough (second respondents).
Giving
judgment, McCOWAN J said: These are five appeals against the decision of the
first respondent, the Secretary of State for the Environment, under section 88
of the Town and Country Planning Act 1971 which was given by his inspector in a
letter dated May 6 1986, whereby he dismissed the appellant’s appeals against
enforcement notices dated February 2 1985 served by the second respondent, the
London Borough of Hackney.
The five
enforcement notices appear in the bundle which has been put before the court.
They are marked, respectively, ‘B’, ‘C’, ‘D’, ‘E’ and ‘F’. They were in
identical terms, so I find it necessary only to look at enforcement notice ‘B’,
which is in respect of premises comprising 3, 5 and 7 Wilberforce Road, London
N4. I should say that the other notices are in respect of other properties in
Wilberforce Road.
Under
‘Schedule 2, Alleged breach of planning control’, it is stated: ‘The making of
a material change in the use of the land coloured red on the attached plan to
use as a hostel for homeless families.’
Under ‘Schedule 3, Steps required to be taken’, these words appear: ‘To
terminate the use of the said land as a hostel for homeless families.’
Next I turn to
an annex to the enforcement notice which reads:
The council
considers that the use of these premises for the almost exclusive accommodation
of homeless families is materially different from their former use; and is a
use which it is inappropriate to allow to continue in an area which is
primarily residential, but where there are already a large number of hotel,
guest house, boarding house, hostel, lodging and similar establishments and
where a concentration or proliferation of hostels for homeless families
produces disproportionate strain on local educational, social and medical
services.
The notice of
appeal against enforcement notice ‘B’ relies on grounds (a), (b), (c), (e), (g)
and (h) in section 88(2) of the 1971 Act. Of the facts in support of those
grounds of appeal the only ones relevant to the appeal before me are (1) to (4)
inclusive. They read as follows:
(1) The premises are run as a budget hotel for
which the appellant has planning permission. (2) There has been no change of
use from that permitted. (3) If, contrary to the above, there has been any
change of use from use as a hotel, it is not material. (4) Any prohibition on
particular guests whether individually or as a class eg homeless persons is in
derogation of the use permitted and goes further than is permitted by s 87(9)
of the Act.
Of the facts
relied upon in support of the appeal against enforcement notice ‘C’, numbers
(1) and (2) are additional to those in respect of notice ‘B’, and I read them:
(1) There has been no change in the use of
numbers 13 and 15 Wilberforce Road since the dismissal of identical enforcement
notices in 1982. (2) There was no previous enforcement notice in respect of
number 11 but there has been no change in the use of those premises either.
Of the facts
relied on in support of the appeal against notice ‘D’, it is only necessary to
note numbers (1) to (3) inclusive:
(1) Use of these premises as a hotel commenced
prior to 1964. (2) There has been no or no material change from this use. (3)
The premises continue to be run as a budget hotel.
The facts
relied on in respect of notice ‘E’ are the same as in the appeal against notice
‘B’, and therefore I do not need to read them.
Of the facts
relied on in respect of notice ‘F’ I need only read number (1), which says:
There has
been no change in the use of number 25 Wilberforce Road since the dismissal of
identical enforcement notices in 1982.
The inspector
records the case for the appellant on grounds (b) and (c) as follows:
22. Asset out
in the grounds of appeal at the time of lodging the appeals, it was contended
that all the properties concerned were in current use as hotels. The planning
history showed that most had either planning permission or established use for
this purpose. There had been no change in this hotel use or alternatively any
such change did not amount to a material change of use. To attempt to restrict
the class of guest who may be permitted to stay in the hotels was a derogation
of the use permitted.
23. All the
appeal properties had been used for the accommodation of hotel guests and there
was no doubt that this had been the situation over at least the last 25 years.
The only break in continuity had been in instances where there was doubt over
the precise type of accommodation provided or a change of planning unit. The
factual history of the properties up to 1982 was as set out in two previous
appeal decisions (documents 12, 52 and 35) and these were relied upon as were
the findings of the inspector in the 1982 decisions as regards the use of the
majority of the properties as hotels.
24. So far as
numbers 11, 13, 15 and 25 Wilberforce Road were concerned, on the occasion of
the 1982 appeal, the inspector found that these were used almost exclusively
for accommodating homeless people but that they were hotels and not hostels
(document 35, para 4). As regards numbers 3, 5 and 7 Wilberforce Road it was
clear from the inspector’s report (document 52, paras 49 and 119) that the
guests using these properties were mainly homeless families and businessmen.
This was no different to the situation at the present day. It was thus
difficult to understand how the council could sustain an allegation that there
had been a material change in the use of these properties, given the conclusions
reached in the 1982 and 1978 appeal decisions, the latter resulting in a
reasoned grant of planning permission for the use of 3, 5 and 7 Wilberforce
Road as hotels.
I will go on
to para 28:
It had been a
significant feature of the council’s case that they had been unable
to produce any evidence of a material change in the de facto use of the
properties since 1978. On the contrary their planning witness, in
cross-examination, had said that the present use started in or about 1978,
except for number 18 which started in 1973.
Para 32 says:
In those
cases referred to by the council which dealt with the distinction between
hotels and hostels, there was no question of distinguishing between the two on
the basis that the occupants were homeless people. However, homeless people
were between homes and were for an indeterminate period of time in a transient
state.
Para 35 says:
The use of
these properties had not changed since the two earlier appeal decisions in 1978
and 1982. Specifically in 1982 the inspector found the same present-day use of
all the properties, except number 20, and concluded that these were hotels. It
would be unjust after these two earlier decisions to say now that the
properties were not hotels. The strength of the appellant’s case did not end
there, because the same use featured in the established use certificate granted
in respect of numbers 13 and 15 Wilberforce Road and in the grant of planning
permission for an extension of the hotel at number 11. It could not be in the
public interest for the council to continue to pursue enforcement action on the
basis of different legal arguments.
Para 38:
The only
reasonable conclusion could be that the accepted use in 1982 of numbers 3, 5,
7, 11, 13 and 15 Wilberforce Road was as hotels. It would make little sense to
reach a different conclusion in respect of numbers 18, 20 and 25. Although
number 20 had planning permission as a hotel it was put in a different category
because that decision dated from 1956.
Then the
inspector went on to report the case for the council. I will read certain parts
of that. Para 40 says:
It was
necessary to answer two questions, first whether or not the present use as
alleged was correctly described as a hostel for homeless families. If the use
was other than that then the notices would fail. The second question was
whether or not that hostel use was a material change of use requiring planning
permission.
Para 41:
The first
question could only be answered by reference to the facts and features
pertaining to the actual use of the properties. There was little dispute on
this point, the properties were used predominantly for providing accommodation
for homeless families. These were placed by local authorities and the position
had not changed since the 1970s. There was some evidence that the occasional
tourist also stayed at the properties.
The inspector
goes on:
43. The
essence of a hotel was that it was a place where people stayed (as opposed to
lived) for comparatively short periods while away from their ordinary home, usually
on business or holiday. Mayflower Cambridge Ltd v Secretary of State
(1976) (document 55) Lord Widgery CJ at pp 31-32. A hotel may or may not
provide facilities such as porters, bars, dining rooms and swimming pools.
44. Document
69, page 1, was a schedule of occupation as at December 1985 indicating
families occupying various rooms, substantial numbers of persons and date of
booking in. It could be seen that some had been in occupation as long as 2 1/2
years. These people were homeless and staying here pending the provision of
permanent accommodation. It could not be suggested that they were away from
their normal homes on business or on holiday. Therefore the appeal properties
were not properly described as hotels and did not fit Widgery LJ’s description.
45. A hostel
was a place where people lived or stayed depending on the type of occupant.
Students and nurses might be said to ‘live’ in their hostels whilst people
‘stayed’ in youth hostels. They had two essential features, namely communal
facilities such as cooking and washing facilities which were shared and the
standard of accommodation was modest. The properties contained kitchens for
residents’ use (document 45). Whilst these might be described as baby bottle
sterilising rooms they were in practice used by adults for the preparation of
food. At the time the notices were served no main meals were provided by the
management (document 38, p 151, para 5). Food was provided by the homeless
families and cooked for themselves.
46. A hostel,
as a species of residential use, was a sui generis use. It was a further
common characteristic of hostels that they catered for limited categories of
people such as students, nurses, homeless persons and battered wives. Commercial
and Residential Property Development Co Ltd v Secretary of State
(1982) (document 56) Glidewell J at pp 447-449 and Mornford Investments Ltd
v MHLG (1971) (document 59) p 609. The first of these cases clearly
established that there was a meaning to the term ‘hostel’ and therefore that
any change to that use from another species of residential could be a material
change of use.
Next I will
read para 48:
The finding
of the inspector in 1982 that a number of the properties were hotels could not
be relied upon by the appellants because the question of whether the premises
were a hotel or a hostel was one of fact or opinion or of mixed fact and
opinion. Each inspector must reach his own decision and was not bound by the
decisions of previous inspectors. Rockhold Ltd v Secretary of State,
Forbes J July 26 1985 (document 60). Furthermore, the 1982 decisions did not in
this respect appear to be based on a full citation of authority or of
principle. Thus the premises were all correctly described as hostels for
homeless people.
Para 51 says:
Change of use
from a hostel to a hotel would be a material change of use, Mornford
Investments Ltd v MHLG [[1970] 2 All ER 253] (document 59), as would
a change of use from a hotel to a house in multiple occupation. Breachberry
v Secretary of State for the Environment [[1985] JPL 180] (document 62).
I turn next to
the conclusions of the inspector. They begin at para 54. There he says:
The schedule
of occupation for the several properties (document 69) shows that the majority
of the occupants are homeless families referred in the main by the London
Borough of Tower Hamlets, the number of persons in each family ranging from 1
to 10. These schedules and Mr Thrasyvoulou’s affidavit sworn a few months
before the issue of the notices (document 38, p 149 et seq) indicate
that the best information as to average length of stay is a few months, the
range indicated by the schedules being from less than a month to 2 1/2 years.
Most occupants have been in the premises for more than a month, however.
55. Although
at my inspection I did not see every room in each property, I saw the majority
and I was careful to note the mode of occupation and the standard of that
accommodation. It was apparent that the larger families are allocated more than
one room, most of which contain a bed or beds, wash hand basin, a cupboard or
wardrobe, table and one or more chairs. These family units are not
self-contained, however. In many cases the accommodation was crowded, partly
because of the number of persons present and partly because of the quantity of
personal effects in the rooms. It was evident from the amount of stored food,
household articles and cleansing materials, pots and pans, kettles, televisions
and, in at least one instance, the presence of a washing line that most of the
families are occupying their rooms as their homes, at least for the time being.
That some of them appeared to be well settled may be explained by the length of
time they had been in residence.
56. Apart from
wash basins, none of the occupied rooms that I saw had the exclusive use of a
bath, shower or wc, these being available within the common parts on a shared
basis. The baby bottle steriliser rooms had the appearance of conventional
kitchens, each being provided with the basic facilities for preparing food,
although I saw no one using them. In some cases the cookers are unusually
large, having 6 burners, and there are facilities for washing clothes in number
20. It is clear from that, although it is against the management’s rules, these
kitchens are used by residents for the cooking of meals.
57. The
standard of the accommodation is generally wholesome and reasonable and could
justifiably be described as modest. Clearly the number of persons in occupation
of many of the rooms has an effect on the accommodation in terms of wear and
tear and cleanliness.
58. Of the
several decided cases referred to by the parties, it seems to me that the
judgment in Commercial and Residential Property Development Co Ltd v Secretary
of State is the most useful in defining the term ‘hostel’, without
qualification by any adjective such as ‘students’ or ‘nurses’, whilst the Mayflower
case together with several others helps in defining the term ‘hotel’. In the
former case the learned judge said that a hostel meant a building in which
people either lived or stayed which provided communal facilities which was
relatively basic and inexpensive and covered a range of accommodation from long
term to transient occupancy. From the second case and others it is clear that
the meaning of the term hotel has as its basis the proposition that such an
establishment takes transient passengers. This definition is consistent with
that of Glidewell J in the Commercial and Residential case where he
observes that people usually stay in a hotel for a day or a few days at most
and in the case of a holiday hotel for a week or a few weeks.
59. Having
regard to the case law and all the facts it seems to me that all the appeal
properties are being used as hostels rather than hotels. My reasons for this
conclusion are that, despite the few tourists and other types of guest, the
majority of residents are homeless families referred to the premises and paid
for on a daily basis by their local authority sponsors. The length of stay
varies from short-term occupation of a few weeks to the long term in excess of
2 years. By definition the homeless have no home elsewhere and are therefore
living in the accommodation as opposed to staying away for holiday or business
purposes. Their mode of occupation in many cases suggests that they have made
their homes there for the time being, and the fact that many of their children
attend the local school emphasises this point. Communal facilities are provided
in the form of washing facilities and, even if not the intention, kitchens are
available and are used for the preparation of food, this last factor being
unknown in my experience in a conventional hotel. The accommodation itself is
of modest standard.
60. Whilst I
appreciate that the hostels have some features in common with hotels, such as
communal dining rooms, the provision of breakfast, cleaning and linen services
and signs proclaiming them to be hotels, there are in my view significant
differences, for the reasons I have given.
Finally, I
will read paras 64 to 66:
64. As to
whether or not these changes of use are material, I agree with the council’s
contention that the intensity of the present use and its effect on community
services such as primary school provision are proper factors to consider. Any
environmental effect manifested by the appearance of the buildings and degrees
of commercialisation seem to me to be less significant as these features could
equally well apply to hotels, although not to houses in multiple occupation.
65. I consider
that the intensity of occupation of the premises as hostels for homeless
families and the effect of the demand for local services by this type of
occupant amounts to a significant difference in character to a hotel or
multiple-occupied residential use such as flats and, as a matter of fact and
degree, I conclude that this constitutes a material change of use. I am
satisfied from the cases referred to in submissions that a hostel is a sui
generis use, not falling within Class XI of the Use Classes Order 1972 and
that planning permission for such development is required. Planning permission
has neither been sought nor granted and accordingly the appeals on ground (b)
in respect of notices B, C, D, E and F also fail.
66. Whilst I
appreciate that my findings in the above respects are at variance with those of
the 1982 appeal decision, in respect of the majority of the properties, they
have been reached on the basis of the very considerable volume of evidence and
submissions as to law put before me, much of which may not have been available
to my predecessor. With regard to the 1978 decision, the Secretary of State was
not there considering an alleged material change of use to a hostel for
homeless families, but the use of 3 of the properties as a boarding house. Thus
the question of whether or not there had been a material change of use to a
hostel for homeless families was not considered.
I have been
referred in full by Mr Macleod, who appeared for the appellant, to the decision
letter of July 17 1982. It will suffice if I read paras 4 and 5 of that letter,
since they contain the kernel of the decision. Para 4 says:
From the
evidence given at the inquiry it seems to me that at the time the enforcement
notices were served 11, 13, 15 and 25 Wilberforce Road were being used almost
exclusively as accommodation for homeless people. Local authorities made
bookings for the homeless through the Maryland Hotel in Isledon Road. Although
some families stayed for long periods, bookings were accepted on a day-to-day
basis. Those staying in the properties were served breakfast and the furnished
rooms were cleaned by staff daily. There were no cooking facilities in rooms,
although kitchen space was provided to cater for the needs of infant children.
Apart from the rooms occupied, no other storage facilities were available.
There was no supervision of occupants, who were bound by normal hotel rules. It
appears to me that the management, the booking arrangements and the facilities
provided were those of hotels, not hostels.
Para 5 says:
The appeals
against enforcement notices B, D and F on ground (c) succeed and I have no
option but to quash the notices and the other grounds of appeal do not fall to
be considered.
Returning to
the decision under appeal, I must have regard to the terms of section 87(2) of
the 1971 Act, which reads:
There is a
breach of planning control (a) if development has been carried out, whether
before or after the commencement of this Act, without the grant of the planning
permission required in that behalf in accordance with Part III of the Act of
1962 or Part III of this Act.
The inspector
had to decide two questions: (1) Were the premises being used as a hostel for
homeless persons? (2) Was that a
material change of use requiring planning permission? He rightly asked those questions at para 40
of his report, which I have read, and went on to answer both of them in the
affirmative.
It is
necessary also that I bear in mind that by section 246(1) of the Act an appeal
lies to the High Court from a decision of the Secretary of State in respect of
an enforcement notice ‘on a point of law’.
I will now
proceed to consider the grounds of appeal. The first reads: ‘That the first
respondent’s decision that the premises are a hostel rather than a hotel is
inconsistent with and fails to apply the decision of the High Court in Commercial
and Residential Property Development Co Ltd v Secretary of State
(1982) 80 LGR 443.’ This is a decision
of Glidewell J, as he then was. The headnote reads:
The applicants
were granted planning permission in 1975 by a local authority, which was a
London borough council and was therefore subject to the Greater London Council
(General Powers) Act 1973, for the use of premises as a hostel. The permission
granted was subject to the condition that the total period of any single
letting should not be for less than 22 days. The applicants’ subsequent
application for permission for use without compliance with that condition was
refused. They appealed to the Secretary of State who allowed the appeal to the
extent of altering the condition so that the majority of lettings within the
hostel should be for periods of not less than 22 days. The applicants moved
under section 245 of the Town and Country Planning Act 1971 for an order that
the Secretary of State’s decision be quashed or remitted for rehearing.
Held,
dismissing the appeal, that ‘hostel’ meant a building in which people either
lived or stayed which provided communal facilities, which was relatively basic
and inexpensive and covered a range of accommodation from long-term to
transient occupancy; that since a hostel might be used for permanent or
short-term occupation it was proper to limit the occupation of it by reference
to the length of stay, and the condition did not derogate from the grant of
planning permission but was a proper limitation upon it; and that, since the
condition related reasonably to the permitted development and was not
unreasonable, impracticable or incapable of enforcement, the Secretary of
State’s permission was not wrong in law.
I will read
now from a part of Glidewell J’s judgment, beginning at p 447:
That brings me
to what I said was the first major question. What, for town and country
planning purposes, is a hostel?
Properties occupied for residential purposes can of course be in a
number of different forms and of a number of different kinds, but they include
at least the following main categories: first, a dwelling-house, which may of
course be an individual house or flat, occupied by a family or sometimes a
single individual, permanently, that is until some circumstances requires or
results in the family removing to another dwelling-house. At the opposite end
of the scale is a hotel which is generally occupied by transients, that is to
say, people who are only staying in the hotel for a day or a few days at most
or, in the case of a holiday hotel, for a week or a few weeks. Very
occasionally one may find permanent residents in a hotel, particularly in the
type of hotel that is called a family or residential hotel.
The dichotomy
between residence in a dwelling-house and staying in a hotel can, I think, best
be pointed by the fact that in modern English usage one normally talks about
living in a house and staying in a hotel. ‘Hostel’ is a word which clearly has
the same French, if not Latin root, as ‘hotel’. Hotel is merely ‘hostel’ with a
circumflex in place of the ‘s’ in the word, and indeed in some continental
languages the word ‘hotel’, or ‘hostel’ in Spanish, is used quite
indistinguishably. But in modern English usage, as I understand it, it means a
building in which people either live or stay which provides communal
facilities. The sleeping accommodation is often, although not by any means
always, in dormitories rather than single rooms and provides shared cooking,
eating and recreational facilities. It is of the essence of a hostel that its
accommodation is relatively basic and inexpensive; and certainly I see from the
evidence set out by the inspector that that is true of this particular building
— not to its discredit, of course, in any sense — providing most useful
accommodation I have no doubt. In my view the word is not a term of art in
relation to the duration of the stay. It embraces institutions — if that is a
correct categorisation — which cover the whole range from long-term accommodation,
as for instance a students’ hostel or a nurses’ hostel where one normally would
expect that people were staying at least for a term, often for a year at a time
or more, to, for instance, a youth hostel which by definition is occupied by
transients — people who are staying for a day or two at the most.
For planning
purposes the distinction between permanent accommodation and short-stay
accommodation is important and may be vital. Permanent accommodation, albeit in
the form of a hostel, has many of the characteristics of a dwelling-house, and
can in my view perfectly properly be considered by the planning authority, as
this planning authority sought to consider it, as part of its permanent housing
stock. If you ask somebody in a nurses’ hostel or a students’ hostel, ‘Where do
you live in London?’, the answer would come back, ‘I live in the nurses’
hostel.’ On the other hand a hostel used
as transient accommodation has many of the characteristics of a hotel — people
coming and going, people booking in and checking out, people arriving and
leaving — and if asked ‘Where do you live?’, I venture to suggest that nobody,
except perhaps the warden, would say, ‘I live at the so-and-so youth
hostel.’ He would say, ‘I stay’ or ‘I am
staying at a youth hostel at the moment’.
Mr Macleod
also relies on the case of Panayi v Secretary of State for the
Environment (1985) 50 P&CR 109. The headnote reads:
In June 1982,
the respondent local planning authority granted planning permission for the
conversion of a property owned by the appellant into four self-contained flats.
That work was carried out. Subsequently, the appellant used the premises to
accommodate homeless families. In November 1982, his agents applied for
planning permission to retain the premises in use as a hostel for homeless
families, but permission was refused. The local planning authority subsequently
issued an enforcement notice alleging a breach of planning control at the
premises in the carrying out of development by the making of a material change in
the use of the land without the required grant of planning permission. The
appellant appealed against the notice, and the inspector appointed to determine
the appeal upheld the notice, holding that the use of the premises as a hostel
for homeless families had so altered their character from that of four
self-contained flats as to amount to a material change of use. The appellant
appealed under section 246 of the Town and Country Planning Act 1971.
Held,
dismissing the appeal, (1) that the inspector had been entitled to conclude
that the premises were being used as a ‘hostel’ . . . (2) That he had also been
entitled to conclude that a material change of use had taken place from the use
for which planning permission had been granted.
Mr Macleod
relies in particular on three paragraphs beginning at the top of p 117 in the
learned judge’s judgment, which read:
Ground 5 reads
as follows: ‘That the first respondent’s said inspector was wrong in law in
paragraph 47 of the decision letter to classify the occupants of flats at 12
Adolphus Road, as ‘transients’ and to attach a material planning significance
to that classification where, as he found, the said occupants resided at 12
Adolphus Road, for long periods and by definition they had no other home.’
The relevant
sentence in paragraph 47 of the decision letter reads: ‘Families may sometimes
remain for long periods but they are transient in the sense that they await
permanent rehousing elsewhere and their stay may be terminated in 24 hours.’ That sentence appears in paragraph 47 as one
of seven features that the inspector goes on to state combine to distinguish
the use of the premises from that of four self-contained flats. In other words,
it is a fact found by the inspector that, together with other facts that he found,
helped him to conclude that these premises were being used as a hostel.
That being
the context in which it is said that the families are transient, it seems to me
that ground 5 is misconceived. The inspector was not purporting to attach
material planning significance to this one factor in isolation, and I do not
see what useful conclusion can be derived from the obvious proposition that,
when homeless families were provided with accommodation at these premises, they
had no other homes. In this context, I have been reminded by Mr Harper of what
was said by Glidewell J in the Commercial and Residential Property
Development case and what was said by Ackner LJ in the Blackpool Borough
Council case [Blackpool Borough Council v Secretary of State for
the Environment (1980) 40 P&CR 104, DC].
Therefore,
says Mr Macleod, the people with whom the court is here concerned should be
regarded as transients waiting to move into their new homes. That is the reason
they have all their property with them.
Mr Barnes, for
the second respondent, points out, however, that the judge in that case held
that the inspector had been entitled to conclude that the premises were being
used as a hostel. He relies on the case of Mayflower Cambridge Ltd v Secretary
of State for the Environment (1975) 30 P&CR 28. It will suffice if I
read a passage from the judgment of Lord Widgery CJ at p 32, while remarking
that the other two judges sitting with him agreed with his judgment.
What Lord
Widgery said was:
I have no
doubt that this is well understood and is acceptable as an ordinary use of
English, namely, that the real difference between use as bedsitting rooms and
use for the purposes of a hotel turns on the stability or instability of the
population in the premises and the extent to which they are making the
individual flatlets their homes. The essence of a hotel is that it takes
transient passengers. Of course there may be an individual here and there who
stays for a long time if it suits him, and there are buildings which are
wrongly described as hotels or as residential hotels. But the basic feature of
a hotel as the word is used in the English language is that it contains a
transient population because it is there to serve people travelling who require
short stays only.
By contrast,
the bed-sitting room in the way in which the phrase is used in English is
somebody’s home. It is where somebody lives. It is where somebody remains for a
substantial time. Accordingly, one has in bed-sitting room use a far more
stable population than one has in a hotel use.
Mr Barnes says
that there are five factors pointing to the premises being used as a hostel
rather than a hotel. They are as follows: (1) The facilities provided were
modest. (2) The people going there were predominantly homeless persons being
accommodated by councils. (3) Many of them were staying for substantial
periods. (4) They treated the premises as their homes: indeed, they had no
other. Many of their children attended local schools. (5) They shared communal
facilities, notably cooking.
Mr Barnes says
that none of these points are to be taken in isolation, but taken together they
are a formidable case. Certainly, all these points emerge from the findings of
the inspector. In the light of them, and the authorities, I find it impossible
to say that the inspector erred in law in answering the first question as he
did. Indeed, it seems to me an eminently reasonable conclusion.
However, it is
necessary for me to consider grounds 2 and 3 of the grounds of appeal, which
can be taken together. Ground 2 reads:
In the absence
of any evidence of any change in the organisation or character of the premises
the appellant had a legitimate expectation that the first respondent’s
inspector would conclude that the premises were a hotel (such decision being
consistent with a decision dated June 17 1982 of a previous inspector appointed
by the first respondent).
3. That in
deciding in the way he did the first respondent by his said inspector took away
from the appellant a right to organise the said premises as they were being
organised, his right to do so having been confirmed inter alia (by) the
decision of June 17 1982 and there being no evidence of any change in the
character of the use thereafter.
Mr Macleod
argues that the activities on the premises have not changed since 1982. The
decision of 1982 was, he says, made on the same facts as in 1986. He submits
that this matter should be considered as res judicata and that the
second respondent should not be permitted to keep issuing enforcement notices
until they can find an inspector who holds in their favour.
In grounds 2
and 3 it does not appear that the matter is put on the basis of res judicata.
Be that as it may, I cannot accept that that doctrine has any application in
these circumstances.
I accept the argument
of Mr Laws, for the first respondent, that appeal rights having been exercised
under section 88 of the Act the Secretary of State has the responsibility of
determining the appeal, or his inspector if he delegates it. If the inspector
were fettered by the decision of a previous inspector, so that he could not
decide the issue for himself, he would not be discharging the statutory task
placed upon his shoulders.
I am confirmed
in that view by some passages from the judgment of Forbes J in the case of Rockhold
Ltd v Secretary of State for the Environment and South Oxfordshire
District Council, decided on July 26 1985, with a transcript of which I
have been provided.*
*Editor’s
note: Now reported at [1986] JPL 130.
On p 4, at
letter F, the learned judge said:
I shall have
to return to that in a moment and deal with another of Mr Jarman’s objections
to that decision, but his main submission was that the Secretary of State and
his inspectors ought to be consistent in their decisions. Formulated in such
wide terms I would have no hesitation in accepting that proposition, but I
think Mr Jarman sought to justify it on rather more narrow grounds. What he was
really saying was that, in so far as the first inspector decided that housing
development on this site would not be prominent, consistency of approach
demanded that all inspectors should, as it were, follow that lead, and that in
taking a different view the third inspector — I put it in that way because the
second inspector agreed with the first on the question of prominence — who
reported in August 1984 said that he considered that the proposal would be
damaging to the beauty of the area. It is that finding that Mr Jarman attacks.
He says that the interests of consistency demanded that that inspector follow
the lead of the other two in coming to the conclusion that development of this
site would not be prominent.
Formulated in
that way I do not think I can possibly accept the submission that Mr Jarman makes.
It seems to me that each inspector must be free to exercise his own judgment on
what are matters of opinion and planning expertise. Just because one inspector
takes a view on a matter of opinion, it does not necessarily follow that every
subsequent inspector has to follow that view.
On p 6, at
letter E, the learned judge says:
In so far,
therefore, as it is said that the principle of consistency is justified by the
necessity of ensuring that developers know where they stand, I accept that
wholeheartedly, but I do not think that it can possibly be said that the
desirability of letting developers know where they stand extends to saying that
any finding of fact or any matter of opinion which is enunciated by one
inspector must inevitably be followed by the next. It seems to me that each
inspector must be entitled to form his own view of these matters.
I should
further add that in my judgment the decision by the present inspector does not
appear to have been made on the same facts as that of the inspector in 1982. I
have in mind in particular the aspect of cooking. I compare the words in para 4
of the 1982 report, to be found at p 72, which reads: ‘There were no cooking
facilities in rooms, although kitchen space was provided to cater for the needs
of infant children,’ with the words in para 56 of the present report. That
reads: ‘The baby bottle steriliser rooms had the appearance of conventional
kitchens, each being provided with the basic facilities for preparing food,
although I saw no one using them. In some cases the cookers are unusually
large, having 6 burners, and there are facilities for washing clothes in no 20.
It is clear from the evidence, that although it is against the management’s
rules these kitchens are used by residents for the cooking of meals.’ Accordingly, grounds 2 and 3 fail.
In ground 4 it
is said: ‘In concluding that the premises were a hostel rather than a hotel the
first respondent’s said inspector took into account an irrelevant
consideration, namely that prior to their arrival at the appellant’s premises
certain guests may have been classified as homeless by a local authority.’ I do not agree that this is irrelevant. I
respectfully agree with the words of Kennedy J in the Panayi case at the
top of p 118, where he said:
Ground 6 of the
notice of appeal reads: ‘That the first respondent’s said inspector was wrong
in law to treat as a material planning consideration the identity of the person
paying for the occupation of the said flats in 12 Adolphus Road.’ Here, again, it is wrong to suggest that the
inspector treated the identity of the payer in isolation as a material planning
consideration. It was just one of the factors that combined to satisfy him that
the premises were being used in the way that he described, which involved a material
change of use from the use authorised by the planning consent.
It was
relevant that the homeless families accommodated were paid for by
what these premises really were.
Ground 5
reads: ‘The first respondent’s said inspector in concluding that the premises
were a hostel rather than a hotel failed to take into account a relevant
consideration, namely that there was no evidence that the appellant gave any
different treatment to guests classified as ‘homeless’ than he did to guests
who were not so classified.’ It is plain
that the guests who were not homeless were very few in number, and I cannot see
that it matters that the appellant did not single them out for different treatment.
Ground 6 says:
‘In upholding the said enforcement notice the first respondent by his said
inspector imposed on the appellant’s lawful use of the premises as a hotel a
limitation as to the acceptance of guests classified as ‘homeless’ which
limitation does not apply to any other hotelier in the country.’ Mr Barnes submits that this is based on a
fundamental misconception. If a hotel is being run as a hotel there is nothing
to stop the proprietor accepting as a guest the occasional homeless person, but
a stage could be reached when the numbers being accepted became so great that
it ceased to be a hotel. I agree with that absolutely.
Finally, I
deal with ground 7. This reads as follows: ‘In upholding the said enforcement
notice the first respondent by his said inspector took into account an
irrelevant consideration namely the effect which the subject premises and/or
premises other than these appeal premises operated in whatever way they might
be operated might have on any particular school whether in the vicinity or
otherwise.’
This ground is
really an attack on the way the inspector dealt with the second question,
namely: Was there a material change of use requiring planning permission? The inspector considered this aspect in paras
64 and 65 of his report. In my judgment, he analysed and answered it perfectly
properly. In considering the question of whether the change of use was material
it is relevant to consider the characteristics and requirements of the people
who would be living in a hostel for homeless families as opposed to those who
would be living in a hotel.
Again, I am
assisted by the words of Kennedy J in the Panayi case at the bottom of p
117, where he says:
Adapting what
was said in the latter case, the question in the present case — whether the
character of the use of the premises as four self-contained units of
accommodation had been changed so substantially as to amount to a material
change of use — was, as Ackner LJ said in the Blackpool Borough Council
case, a question of fact and degree. It was certainly open to the inspector to
decide that, if a building that contained four self-contained flats, even
without structural alterations, became a hostel for homeless persons, that
could amount to a material change of use. The change could give rise to
important planning considerations and could affect, for example, the
residential character of the area, strain the welfare services, reduce the
stock of private accommodation available for renting and so forth. The fact
that, in the broadest sense, the property continued to be used for residential
purposes does not mean that there could not have been a material change of use
(see Birmingham Corporation v Habib Ullah. [[1964] 1 QB 178] and Hammersmith
London Borough Council v Secretary of State for the Environment
[(1975) 30 P&CR 19, DC]).
This ground
also fails, and with it these appeals.
The appeals
were dismissed, with costs in favour of the first respondent only. Leave to
appeal was refused.