Wedlake, R (on the application of) v First Secretary of State & Anor, Court of Appeal - Administrative Court, September 30, 2005, [2005] EWHC 2272 (Admin)

Resolution Date:September 30, 2005
Issuing Organization:Administrative Court
Actores:Wedlake, R (on the application of) v First Secretary of State & Anor

SMITH BERNAL WORDWAVECO/5742/2004 Neutral Citation Number: [2005] EWHC 2272 (Admin)IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT Royal Courts of Justice StrandLondon WC2 Friday, 30th September 2005 B E F O R E:SIR MICHAEL HARRISON(Sitting as a Deputy High Court Judge) - - - - - - -THE QUEEN ON THE APPLICATION OFGREGORY LEE WEDLAKE (CLAIMANT)-v- (1) THE FIRST SECRETARY OF STATE(2) NORTH SOMERSET COUNCIL (DEFENDANTS) - - - - - - -Computer-Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court) - - - - - - -CHRISTOPHER YOUNG (instructed by Messrs Bevan Brittain) appeared on behalf of the CLAIMANTMR SHEPHERD (present for judgment only) appeared on behalf of the CLAIMANTMR JAMES MAURICI (instructed by the Treasury Solicitor) appeared on behalf of the FIRST DEFENDANTThe SECOND DEFENDANT did not appear and was not represented - - - - - - -J U D G M E N T Friday, 30th September 2005 1. SIR MICHAEL HARRISON: This is an appeal under section 289 of the Town and Country Planning Act 1990 against a decision of the First Secretary of State's Inspector, dated 20th October 2004, relating to an enforcement notice that had been served on the claimant by the North Somerset District Council. It was, in fact, one of three enforcement notices served on the claimant by the District Council. The claimant appealed against all of them all and a public inquiry was held into those appeals which lasted for five days. 2. These proceedings relate to the enforcement notice in respect of land at the Old Forge, Lulsgate Bottom in Somerset. The other two enforcement notices related to two other sites, one of which adjoined the Old Forge site, but they are not relevant to these proceedings. The claimant appealed against the Old Forge enforcement notice on various grounds but, at the inquiry, the appeal was confined to the ground under section 174(2)(d) of the 1990 Act, which, in conjunction with section 171B(3), has the effect that a breach of planning control by a material change of use which occurred at least ten years before the issue of the enforcement notice, is immune from enforcement action. 3. The enforcement notice was issued on 15th October 2003. The breach of planning control alleged by the enforcement notice was: "Without planning permission, unauthorised change of use of land from use for domestic curtilage to use as a car park for airport passengers and/or other paying customers and associated works, including the construction of a decked area."4. The steps required to remedy the breach were: "1. Cease parking all unauthorised non-agricultural vehicles on the land; 2. Remove all unauthorised non-agricultural vehicles from the land;3. Remove all associated works, including all hard standings, and restore land to domestic curtilage."5. In fact, as the Inspector found, the site consisted of a building used as a house and for bed and breakfast, another building accommodated two car repair bays and an office/reception area, and a forecourt area between those two buildings. The enforcement notice was, therefore, deficient in failing to mention those existing uses and it was agreed that it should be amended to reflect those uses in the description of the existing use. Further amendments were made by the Inspector after the inquiry, but they are contentious and form the subject of one of the grounds of appeal in this case. 6. The claimant's case at the inquiry was that the site had been used for commercial parking since as far back as 1989 and that the use was, therefore, immune to enforcement action. Besides calling a professional witness, he called eight witnesses of fact, including himself, dealing with the history of parking on the site. The Inspector remarked in paragraph 7 of her decision letter that, although there was no documentary evidence to show that a commercial car parking use had operated from the site for ten years, a number of witnesses had given evidence that the site had included some long-term parking use for in excess of ten years. 7. In paragraph 8 of the decision letter, the Inspector stated: "The witnesses who gave evidence included those who have parked their cars at the appeal site for more than 10 years. There is one car parking receipt from as far back at 1989 but this was issued to Mr Hoy who was obliged to leave his car on the site until it could be taken away, as it had broken down, which seems to me to be more of a storage use than parking. Nevertheless, Mr Hoy explained that from that date he began to use the site for long term parking and said that his parents told him that they had similarly made use of the site. From the evidence given by witnesses, I consider that people have been parking at the appeal site for in excess of 10 years and that they either paid the Appellant's father or, in the case of business associates, there was sometimes payment by way of exchange of services."8. That last sentence is important because the claimant maintains that it involves a clear finding that there had been commercial parking on the site for in excess of ten years. 9. In paragraph 9 of the decision letter, the Inspector referred to the limited size of the appeal site and stated: " ... Having regard to its limited size, it does not seem to me that many vehicles would need to be parked for the use to be more than de-minimis and to amount to a further primary use. However, evidence from the witnesses varies as to the number of cars that were involved prior to the turn of the century when the use vastly expanded."10. She then gave some examples of the numbers of cars from the witnesses' evidence and added, in the last sentence at paragraph 9: "Furthermore, many of the witnesses agreed that, generally, they would have no reason to know for sure which cars were connected to which use on the site."11. She continued in paragraph 10 as follows: "From the evidence presented it is thus not possible to be sure how many cars were generally parked on the site and with what degree of regularity. Certainly historic photographs produced by the Council do not demonstrate any significant amount of parking but those are, as was accepted, only snapshots in time. Moreover, it does not seem to me surprising that little parking took place on the site whilst significant building work was being...

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