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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Sumner, R (on the application of) v Secretary of State for Communities & Local Government  EWHC 372 (Admin) (11 February 2010)
Cite as:  JPL 1014,  EWHC 372 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF SUMNER
|THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
MR A SHARLAND (instructed by TREASURY SOLICITORS) appeared on behalf of the Defendant
MR A BOOTH appeared for the interested party (instructed by WYCOMBE DISTRICT COUNCIL)
Crown Copyright ©
"(1)where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.
(2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house no enforcement action may be taken after the end of the period four years beginning with the date of the breach.
(3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach."
"The main vehicular access to the land from White Hill, including its gate set back from the carriageway, lies towards the western end of the land. On the land to the west of the entrance are a schooling ring and other structures used by the appellant lawfully for his own horses together with three buildings used for car valeting. Immediately to the east stands a range of buildings, extending across much of the depth of the site. These include a building used by the appellant and his firm as a builder's yard with ancillary office together with a U shaped range of stables, all lawful. A little to the rear of this range of structures and beyond a garden of domestic character lies an open area with the benefit of lawful development certificate granted in 2000 under s.191 of the 1990 Act (as amended) for the storage of motor vehicles ('the LDC land')."
"To the south of the aforementioned range of structures, close to, but separated from the southern boundary of the land by a circulation roadway, stands a further building, termed building 'B' to which part of the allegation in the notice, now effectively withdrawn, had been directed; it is used by a firm for storage purposes unconnected with any other activity on the land."
"The first and second limbs of allegation in the notice ...are directed entirely to the L shaped building A which stands to the east of the aforementioned range of structures and south of the LDC land. Building A comprises four constituent 'parts'..."
"Those vehicles were kept in pursuit of the lawful primary uses of Southside Farm at that time for agriculture, for the keeping of the appellant's own horses and as a builder's yard with ancillary office. There is no evidence that Mr Rolfe repaired vehicles at the appeal site other than those used by the present appellant in connection with the lawful uses of Southside Farm. Thus, such repairs to vehicles as carried out in the Old Unit 1 or within its curtilage, would have been incidental to this primary mixed use and would not have amounted to a primary use in its own right or a breach of planning control."
For the purposes of this Act uses and operations are lawful at any time if-
(a) No enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and.
(b) They do not constitute a contravention of any requirements of any enforcement notice then in force."
Then sub-section (6) provides that:
"The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed."
I should also refer to sub-section (7) which provides that.
"A certificate under this section in respect of any use shall also have effect, for the purposes of the following enactments, as if it were a grant of planning permission-"
"Where planning permission is granted for the erection of a building, the grant of permission may specify the purposes for which the building may be used."
"If no purpose is so specified the permission shall be construed as including permission to use the building for the purpose for which it is designed."
"The certificate applied for by Mr Beasley related however to the use of the building not to its construction. [I should add this was not an enforcement case, it was a application for a certificate under section 191] For the council Mr Beglin submitted that section 171B(1) is simply irrelevant to the question of use. For the Secretary of State, Miss Davies countered with the contention that if the construction of a building has become immune from enforcement by virtue of section 171B(1) the use of the building for the purpose for which it was designed must also be lawful, otherwise the legislation would make no sense. I see some attraction in that connection, but I am concerned that the relationship between operational development and use was not fully explored before us and I prefer not to express a conclusion on the issue, because for reasons to which I now turn I take the view section 171B(2) provides immunity for the use of the building in this case and no decision is therefore needed for the outstanding issue under sub-section 1."
"I too see force in the contention of Miss Davies recited by Richards LJ at paragraph 26. However a distinction is maintained in section 171B between building and other operations on the one hand and a change of use on the other. That is also maintained in the interpretation section of the 1990 Act, section 336(1), in which it is stated that use in relation to land does not include the use of the land for the carrying out of any building or other operations on it. I would leave over the argument that whilst enforcement proceedings cannot be taken against the dwelling house as a building because of section 117B(1), its use as a dwelling house can be prevented. I agree with Richards LJ it is not necessary to decide the point."