R (oao Kriss Russman & ors) v LB Hounslow & ors

Transcript date:

Monday, February 28, 2011

Matter:

Court:

High Court

Judgement type:

Permission

Judge(s):

Collins J

Transcript file:

CO/5862/2010 
Neutral Citation Number: [2011] EWHC 931 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL

Monday, 28TH February 2011

B e f o r e:

MR JUSTICE COLLINS

Between: 
THE QUEEN ON THE APPLICATION OF RUSSMAN 
Claimant

v

LONDON BOROUGH OF HOUNSLOW 
Defendant

Computer Aided Transcript of the Stenograph Notes of 
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MR P HARRISON QC (instructed by RICHARD BUXTON & CO.) appeared on behalf of the Claimant 
MR R HARWOOD (instructed by LONDON BOROUGH OF HOUNSLOW) appeared on behalf of the Defendant
MR J PEREIRA (instructed by LOVELLS) appeared for Orchard House School

J U D G M E N T 
(as approved by the Court)

Crown copyright©

1. MR JUSTICE COLLINS: This is a renewed application seeking permission to challenge the decision of the Hounslow Council refusing to permit an application by the claimant for revocation of a certificate of lawful use, which had been granted in respect of premises at 2 Rupert Road in Hounslow, allowing them to be used as a school.

2. There is quite a long history to the use of these premises. A planning permission was originally granted in 1961 for school use, or educational use, with a couple of conditions attached to it relating to where the children could come into the premises, largely I think for road safety reasons, and also a condition of the provision of turning spaces and parking within the curtilage of the building.

3. In fact it was never, it seems, possibly apart from the very early days, used as a school in what one might regard as a conventional sense of that term. What happened was that over the years the ground floor of the premises, the owners living on the first floor, was used as what is described sometimes as a dance school, sometimes as a stage craft school and attached to it was a theatrical agency the purpose of which was apparently to enable those who were enrolled in what I would, for want of a better word at the moment without pre judging any issue, describe as a school, to enable them, for example, to go on stage in plays or operas when children were needed and that was an added advantage, it was suggested, for enrolling in that particular school.

4. In addition, the husband became disabled and was allowed to operate for a time an Army surplus retail establishment in one room on the ground floor. That had nothing do with any educational use. However, all these uses apparently ceased by 1998, and thereafter it is said that it was continued to be used and there is no reason to doubt this in the same way as the stage craft purposes.

5. The application for a certificate of lawful use was originally made in 2008 and was then granted. The certificate itself, which was granted on 3 September 2008, states as follows:

"the London Borough of Hounslow as the local planning authority hereby certifies that on 2 September 2008 it could be established that the ground floor at 2 Rupert Road had on the balance of probabilities been used as a school and for no other D1 use for at least 10 years. Therefore the use of the subject premises as outlined in the application is considered to be lawful under section 191 of the Town and Country Planning Act 1990."

6. Section 191 effectively provides that if a use which has been carried on continuously for at least 10 years has not been enforced against (10 years being the time within which any enforcement action has to be taken) can be certified as being a lawful use. By section 191(5) it is provided that:

"A certificate under this section shall

(a) specify the land to which it relates;

(b) describe the use, operations or other matter in question. In the case of any use falling within one of the classes specified in an order under section 55(2)(f), identifying it by reference to that class.

(c) give the reasons for determining the use, operations or other matters to be lawful and.

(d) specify the date of the application for the certificate.

7. The carrying on for 10 years is sufficient to show lawfulness. The use described is as a school. What is submitted in essence is that that is misleading. It was not a school; it did not fall within D1, if one considered what actually was going on on the premises, and therefore the certificate ought not to have been granted. The claimant's concern is as a nearby resident and the effect of the use locally. Clearly there are adverse affects, particularly in terms of traffic and noise. Unfortunately, although it cannot be said that the Council failed to take proper steps to publicise the application, he was unaware of the application and so no action was taken against the certificate. He was not aware that it had been granted and by the time he was aware, it was too late to take any proceedings other than judicial review against the grant of the certificate.

8. As I have said, the application was based upon the assertion that this was being used as a school and therefore fell within D1 of the of the Use Classes Order, to be precise, D1(c), which provides for any use not including a residential use for the provision of education. What is said is that the proper class would have been D2, and more specifically D2(e), use as swimming baths, skating rink gymnasium or area for other indoor or outdoor sports or recreations, not involving the use of motorised vehicles or firearms and possibly (d) a dance hall.

9. The power to revoke a certificate is contained in section 193 of the 1990 Act, but there are limited grounds upon which an application can be successful. Essentially they are contained in section 193(7), which provides: 
"A local planning authority may revoke a certificate under either of those sections [that is 191 or 192] if on the application for the certificate

(a) a statement was made or document used which was false in material particular or.

(b) any material information was withheld."

10. Thus, if the council were in error in the form in which the certificate was granted, that is not in itself a matter which can lead to revocation. The certificate will stand unless it is challenged in the proper manner, which could only be judicial review, within the relevant period of a maximum of 3 months, subject of course to a discretion if there are circumstances which justify an extension of time in any given case.

11. The limitation in 193(7) is of considerable importance. It is suggested first that a statement was made or a document used which was false in a material particular. False does not mean deliberately false in the sense of dishonestly so; it suffices if, as a matter of objective fact, information given is false and clearly false in a material particular, because if it could not have had any conceivable effect upon the grant of the certificate then it would not be right to revoke, and indeed sub section 7 does not say 'shall', it says 'may' revoke.

12. The local authority was aware from the planning history that this was not a school in what may perhaps be regarded as the usual connotation of that word, but was a dance or stage craft school and used as such. Nonetheless, as it seems to me, it clearly did fall within D1(c) because it was provision of education. Admittedly this education was in a somewhat narrow field, but teaching people stage craft, teaching them how to dance, is, it seems to me, quite plainly education. I say quite plainly; it would be impossible for it to be properly decided that the council was wrong to regard this as falling within D1(c) of the Use Classes Order, and it seems to me that that is the starting point.

13. It is further suggested that there was a withholding of material matters. They have been helpfully set out originally in the letter from the claimant's solicitor to the council for the purpose of consideration when the application for revocation was considered. It is said that the information withheld included the nature of the school, the nature of the teaching or provision of education, staff and student numbers, non compliance with legislative requirements for schools such as registration or Ofsted inspections, use of the studio for hire, failure to provide education of the kind contemplated by the legislative use of the terms of 'school' or 'education provider', children attending for ballet et cetera enrolled for full time education at schools elsewhere, various groups or classes held and being provided by a variety of private operators with no administrative base at the property, no stated purpose of providing education and the use as being a studio venue of the type more properly including D2(e).

14. The problem as I see is it is that none of that goes to whether this is outside the class D1(c). Clearly, it does not. As I said, the information that the council was aware of was sufficient to enable them to reach the decision that they reached and the further information which is said to have been withheld would not and could not have made any difference, subject to one point raised by Mr Harrison which goes to the form of the certificate. He submits that if one looks at the guidance, issued by the Department on the approach to the grant of lawful use certificates, one finds this at paragraph 8.16:

"Sub section 5 of section 191 provides for certain matters a certificate must contain. A certificate is particularly valuable because its effect is similar to a grant of planning permission. It is therefore vital that the certificate indicates precisely the area of land to which it relates, normally by means of an attached scale site plan. Precise details of what use, operations or failure to comply with the condition are found to be lawful, why and when. For example, if the certificate is for a use of land, unless the use falls within one of use classes specified in the UCO current at the time, or the certificate is granted on the basis that a specific grant of planning permission confirms lawfulness on use, it is important for it to state the limits of the use at a particular date. These details will not be legally equivalent to a planning condition or limitation. They will be a point of reference, specifying what was lawful at a particular date against which any subsequent change may be assessed. If the use subsequently intensifies or changes in some way to the point where a material change of use takes place, the LPA may then take enforcement action against that subsequent breach of planning control, which a less precise certificate might well preclude, and the certificate must therefore be precisely drafted in all respects."

15. That, read in context, it seems to me, is quite clearly relating to a use which does not fall within the Use Classes Order. But one goes back to 191(5) and Mr Harrison relies on 191(5)(b), on the obligation to describe the use, operations or other matter in question, but then the words in parenthesis are "in the case of any use falling within one of the classes specified in an order under section 45(2)(f) identifying it by reference to that class."

16. It seems to me that the provision there is that there must be an indication of what the use is, but if it therefore qualifies as falling within one of the Use Class Orders, that suffices, and the reference to the Use Class, as occurred here, albeit in perhaps slightly indirect fashion, is sufficient.

17. That being so, and I am bound to say I have some regret at having to decide in this way, because I understand that the question of what conditions upon the use are appropriate really needed to be considered, nonetheless, as it seems to me, it is impossible to argue that there has been in the circumstances either any false information given or any withholding of information.

18. Two other grounds are relied upon, but both seem to me to be entirely parasitic upon the arguability of either of the grounds falling within 93(7), because one cannot go beyond 93(7). It is submitted that the officer's report erred in law in suggesting that the test arising under section 193(7) can be exercised upon a consideration of planning merits. What was said was if this should have fallen within D2, not D1, every adverse effect would have been the same. Therefore it was unnecessary to exercise discretion in favour of revoking.

19. I am bound to say that I think it is clearly arguable that that was wrong, but as I say, it does not and cannot arise unless there is the possibility of a revocation taking place, and that requires either of the grounds in 193(7) to be established.

20. Finally, it is suggested that it was wrong for the same officer who advised on the grant of the certificate to be the officer who advised on the revocation, albeit that he was a member of the solicitors department of the council, which joined in on the subsequent advice. It may well be that it would with hindsight have been desirable that a fresh mind were used in considering the revocation application because it might be thought that the officer in question was concerned to maintain the position that he had adopted in advising on the original grant of the certificate. Perhaps with hindsight it would have been better to have used someone else, but it is difficult to see how it can be said that that amounts to a sufficient unfairness to breach the rules of natural justice. But in any event, that is also parasitic upon the success of the arguability of either of the section 93(7) grounds.

21. For those reasons, I agree with the decision of the Deputy Judge who refused permission on the papers and this application must be refused.