Swale Borough Council v The First Secretary of State & Anor

Swale Borough Council v The First Secretary of State & Anor

The Inspector's finding that the barn had been used as a single dwelling house for more than four years prior to the LDC application was supported by evidence and proper application of the law. The Inspector did not misdirect himself or take into account immaterial considerations. The distinction between use of land and use of a building as a dwelling was correctly drawn, and the Inspector's approach was not inconsistent with Thurrock. The application under section 288 fails.

Parties
Claimant: Swale Borough Council; First Defendant: The First Secretary of State; Second Defendant: Mr R. Lee
Jurisdiction
England and Wales
Judgment Date
04 March 2005
Procedural Posture
Judicial Review (planning) / Judgment on Application Under Section 288 of the Town and Country Planning Act 1990
Outcome
Application dismissed
Legal Topics
Certificate of Lawful Use, Enforcement Notice, Residential Use, Material Change of Use, Immunity From Enforcement
Planning Law Administrative Law Certificate of Lawful Use Enforcement Notice Residential Use Material Change of Use Immunity From Enforcement

Case Brief

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Parties

Swale Borough Council

Claimant

The First Secretary of State

First Defendant

Mr R. Lee

Second Defendant

Procedural Posture

Judicial Review (planning) / Judgment on Application Under Section 288 of the Town and Country Planning Act 1990

Legal Issues

  1. 1 Whether the Inspector erred in law in finding that the barn had been used as a single dwelling house for a continuous period of four years prior to the LDC application, thereby conferring immunity from enforcement action under section 171B(2) of the Town and Country Planning Act 1990.
  2. 2 Whether the Inspector took into account immaterial considerations or misapplied the law as set out in Thurrock Borough Council v Secretary of State for the Environment Transport and the Regions & Terry Holding [2002] EWCA Civ 226.

Ratio Decidendi

The Inspector's finding that the barn had been used as a single dwelling house for more than four years prior to the LDC application was supported by evidence and proper application of the law. The Inspector did not misdirect himself or take into account immaterial considerations. The distinction between use of land and use of a building as a dwelling was correctly drawn, and the Inspector's approach was not inconsistent with Thurrock. The application under section 288 fails.

Court Disposition

Application dismissed

Orders

  • Application under section 288 of the Town and Country Planning Act 1990 is dismissed.
  • Appeal under section 289 would also fail if leave were given to adduce it out of time.