R (on the application of KP JR Management Co Ltd) v Richmond upon Thames London Borough Council

Town and country planning – Change of use – Certificate of lawful use – Claimant applying for judicial review of decisions of defendant local planning authority not to issue enforcement notice for material change of use by intensified residential use of vessels moored on river and grant of certificate of lawfulness of existing use or development (CLEUD) – Whether in determining appropriate planning unit defendants failing to take account of material considerations – Whether defendants adopting erroneous approach to whether material change of use occurred in ten year period – Whether evidence supporting residential use certified as lawful – Applications dismissed By two claims for judicial review, the claimant challenged the response of the defendant local authority to the residential use of boats moored to a pontoon at Kew Marine, Bush Road, Kew, Richmond. The site comprised a walkway, landing stage and mooring pontoon, attached to piles driven into the riverbed. It was stationed in the River Thames, adjacent to Kew Bridge. The claimant was a company limited by guarantee, formed by local residents to take legal action against the defendants. The first interested party leased the site from the Crown Estate. It operated as a business, and let moorings and boats for residential use, as well as leisure use. The Port of London Authority was the regulatory body which granted licences for moorings, as part of its control of the River Thames. The second interested party represented some forty rowing associations between Putney and Twickenham. By the first claim, the claimant challenged the defendants’ failure to issue an enforcement notice under section 172 of the Town and Country Planning Act 1990 in respect of an alleged breach of planning control, namely, a material change of use arising from intensified residential use of the site. The defendants subsequently granted the first interested party a certificate of lawfulness of existing use or development (CLEUD) in respect of use of the site, pursuant to section 191 of the 1990 Act. It certified that the use of the site for the mooring of boats for residential and private leisure purposes, as specified, was lawful. By the second claim, the claimant challenged the lawfulness of the CLEUD. It was agreed that the first claim had been overtaken by the decision to grant the CLEUD. If the CLEUD was lawful, the first claim would fall away. Held: The applications were dismissed. (1) It was clear from the authorities that the decision-maker had to make a planning judgment as to the appropriate planning unit, as a matter of fact and degree. Where there was more than one relevant unit of occupation, the decision-maker had to make a judgment accordingly. The court would not interfere with an exercise of planning judgment and would only intervene if an error of law was established. The court was unable to discern any unlawfulness in the planning judgment in this case. There were two competing views, each supported by legal advice. The claimants had submitted a legal opinion contending that the mooring of each boat should be considered as a separate planning unit but defendants’ legal advisers had advised that the appropriate planning unit was the mooring and pontoon area, leased by the Crown Estate to Kew Marine. In the exercise of their planning judgment, the defendants were entitled to conclude that the mooring and pontoon area as a whole was the appropriate planning unit, for the reasons set out in the planning officer’s report. The planning committee members were aware of the distinctions between vessels used for residential and leisure purposes. They were adequately appraised of the relevant factual and legal issues and were not significantly or materially misled by the officer’s report: Burdle v Secretary of State for the Environment [1972] 1 WLR 1207, Johnston v Secretary of State for the Environment [1975] 1 EGLR 132, Gregory v Secretary of State for the Environment (1990) 60 P & CR 413, Church Commissioners for England v Secretary of State for the Environment (1996) 71 P & CR 73 and Oxton Farms v Selby District Council [1997] WL 1106 applied. (2) There was ample evidence for the defendants to conclude that there had been continuous residential use of at least two vessels moored at the site for more than ten years prior to 22 February 2016. Therefore, the ten year time limit for enforcement against a change of use in section 171B(3) of the 1990 Act had expired. Section 191(2)(a) provided that operations were lawful if no enforcement action might then be taken in respect of them. The defendants had earlier obtained a legal opinion which confirmed the planning officers’ advice on that issue. When applying the legal tests to the particular facts, it was proper for the defendants to consider the nature of the changes which had taken place and their impact on the surrounding area. In carrying out that exercise, the defendants considered the concerns raised by the claimant and the second interested party about the off-site effects. The defendants’ conclusion that the increase in vessels in residential use at the site had not resulted in such a change in the character of use that it amounted to a material change of use was not vitiated by errors in its approach. The claimant had adopted the hypercritical scrutiny of the planning officer’s reports which had been deprecated by the Court of Appeal. The claimant had failed to establish any error of law in the defendants’ decision: Hertfordshire County Council v Secretary of State for Communities and Local Government [2012] EWCA Civ 1473; [2012] PLSCS 246 applied. (3) The use certified as lawful in the certificate was supported by the evidence. It accurately reflected the existing mixed use at the date of the application for the CLEUD which the defendants found to be lawful. The claimant’s argument to the contrary was misconceived. Residential use by vessels at the site had become lawful, by virtue of immunity from enforcement action, by the time of the application for the CLEUD. The defendants decided that the increase in the number of vessels in residential use was not a material change of use, and so was lawful. The content and degree of particularisation in the certificate was a matter of judgment for the defendants, based on the evidence: see R (on the application of Flint) v South Gloucestershire Council [2016] EWHC 2180 (Admin); [2016] PLSCS 245. Ashley Bowes (instructed by Prospect Law Ltd) appeared for the claimant; Simon Bird QC and Charles Streeten (instructed by South London Legal Partnership) appeared for the defendants; Jonathan Clay (instructed by Richard Buxton Environmental and Public Law, of Cambridge) appeared for the first interested party; the second interested party did not appear and was not represented. Eileen O’Grady, barrister Click here to read transcript: R (on the application of KP JR Management Co Ltd) v Richmond upon Thames London Borough Council