Council’s decision quashed following successful judicial review

By Anita Jaynes on February 02, 2014
The High Court of Justice sitting in Bristol has quashed Wiltshire Council’s decision to grant consent for a car park at a business centre in a village near Malmesbury and ordered it to pay the claimant’s legal fees.
 
The judicial review came after the Council had granted a Certificate of Lawfulness of Existing Use or Development (CLEUD) to the owner of Home Farm Business Park in Minety which enabled him to use part of the land for ‘vehicular parking’ without restriction.
 
The owner applied for a CLEUD in respect of various buildings at the business park that had been used for offices, storage and distribution, and for land to the south of the offices that had been used for ‘ancillary vehicular parking’.
 
The owner submitted that as the land was being used in this way and no longer for agricultural purposes, it had undergone a ‘material change of use’. In particular, he claimed that these uses had continued uninterrupted for a period of 10 years and were thus immune from enforcement action by the Council – despite being in breach of planning control – and on that basis a CLUED should be granted.
 
The Council decided that while the owner had been unable to demonstrate that the buildings had been used continuously in this way for a period of 10 years, independent parking (as opposed to ancillary) on the land to the south of the buildings had occurred for such a period. The issuing of the CLEUD effectively authorised the unrestricted use of the land for parking to staff employed by businesses at the business park as well as members of the public.
 
But specialist planning and environmental solicitor Alex Madden of Thrings, acting on behalf of Minety resident Cyril Freedman, argued the Council had exceeded its jurisdiction under the terms of the Town and Country Planning Act 1990 in modifying the description of the CLEUD in this way on the evidence before them.
 
Madden also claimed the Council did not properly consider whether the land to the south of the offices had been used for independent parking for a continuous 10-year period which was the statutory test. He said that if the Council had properly considered this issue, it would have concluded that the owner had not satisfied the statutory test and refused the CLEUD in relation to parking.
 
The court ruled that as a matter of law, the Council is entitled to modify the description from that which is set out in an application for a CLEUD, but in this case and on the evidence before it, the Council had not, approached the question of modifying the description of vehicular parking in the correct way, thereby rendering its decision irrational.
 
The Court upheld Freedman’s claim and quashed the CLEUD, ordering Wiltshire Council to pay Freedman’s legal costs which amounted to £19,500.
 
Madden said: “This case has provided welcome clarification on the extent of local planning authorities’ (LPA) powers when dealing with CLEUDs. It also highlights the need for LPA decisions – which are amenable to third party challenges – to be soundly based.
 
“While we should welcome the fact that the development industry is currently in the midst of a period of resurgence, it is nonetheless imperative that LPAs determine planning applications within the powers afforded to them under the statutory framework in order to avoid a third party challenge which may lead, unnecessarily, to protracted litigation.”