A court was bound by the findings of a planning inspector save where the court was satisfied that a finding of fact was sufficiently unreasonable to meet the test prescribed in Edwards (Inspector of Taxes) v Bairstow [1956] A.C. 14.  The inspector had before him sufficient evidence to justify his finding that a barn had been used as a single dwelling house for the purpose of the Town and Country Planning Act 1990 s.171B(2) for a continuous period of four years prior to an application for a certificate of lawful development.

The applicant local authority applied to quash a decision for an inspector appointed by the first respondent secretary of state granting the second respondent (L) a certificate of lawfulness in relation to his occupation of a barn as a dwelling house and applied for permission to appeal out of time against the quashing of an enforcement notice in relation to the barn.  L had carried out works to the barn with the intention of using it as a residence.  His application for a certificate of lawful development was refused by the local authority, which subsequently issued an enforcement notice in respect of the various works which had been carried out on the barn.  The matter eventually came before an inspector who quashed the enforcement notice and granted unconditional planning permission for the development.  The broad question was whether the inspector’s finding that the barn had been used as a single dwelling house within the Town and Country Planning Act 1990 s.171B(2) for a continuous period of four years prior to L’s application for a certificate of lawful development could be supported.  The local authority argued that the inspector’s approach was inconsistent with the decision in Thurrock BC v Secretary of State for the Environment Transport and the Regions (2002) EWCA Civ 226, (2002) 10 EG 157 (CS).

HELD:  Application to quash a decision letter under s.288 of the Act and appeal against the quashing of an enforcement notice under s.289 were confined to points of law only.  The court was bound by the findings of the inspector save where the court was satisfied that a finding of fact was sufficiently unreasonable to meet the test prescribed in Edwards (Inspector of Taxes v Bairstow (1956) AC 14 applied.  In the instant case, the inspector had made clear findings of fact based on the evidence that he had taken at the inquiry which satisfied the requirements of s.171(B)(2).  Use of a building as a dwelling house did not cease if the landowner or his invitees did not actually sleep there for even quite long periods of time, Thurrock BC v Secretary of State for the Environment Transport and the Regions (2002) EWCA Civ 226, (2002) 10 EG 157 (CS) distinguished.  Therefore absence from the building while the owner took a substantial holiday did not mean that he had ceased to use the building as his dwelling.  By contrast indications that there had been such cessation to use the building as his dwelling.  By contrast indications that there had been such cessation of use would have been absence combined with removal of all personal effects and disconnection of services.  It was clear that the inspector had directed himself to those considerations.  There was no justification in reading his decision letter as if he was treating as immaterial, for the purpose of coming to a conclusion whether there had been four years uninterrupted user of the barn was a dwelling, the fact that L had actually ceased to use the barn as a dwelling for material periods even though during such periods of disuse the building stood empty and unused.  Thus the inspector had before him sufficient evidence to justify his conclusions and had expressed the basis of his approach in his decision letter with sufficient clarity.  In the circumstances, the appeal under s.289 would also fail if leave were given to adduce it out of time.

Applications refused.

Swale Borough Council v (1) First Secretary of State (2) R Lee (2005)