Judge dismisses challenge against Berkshire council's change of use enforcement action

A High Court judge has dismissed a legal challenge against a council's enforcement action in relation to alleged change of use of land in Berkshire from horse grazing to a commercial livery.

London's Royal Courts of Justice
London's Royal Courts of Justice

Robert and Marjolein Johnson have the benefit of a 1991 planning permission to graze horses on their land at Fairview Stables, off Darlings Lane on the edge of the town of Maidenhead.

Before they bought the property eight years ago, it had for several years been used as a 'DIY livery' on an established basis and there was no dispute that that use was lawful.

The DIY business model during those years was that the care and management of horses grazed on the land was the responsibility of their owners, the court heard.

However, in May last year, the Royal Borough of Windsor and Maidenhead issued an enforcement notice against the couple alleging that the private recreational use of the land had become commercial.

The council claimed that full and part-livery services had been made available on the land, together with riding lessons, grooming and other services, and that buildings had been erected and a hardstanding laid down.

Following an appeal by the couple, the notice was subsequently withdrawn by the council. Both sides applied for costs in relation to the aborted inquiry and costs were later awarded against the council.

The couple were then served a second enforcement notice by the council related to the alleged change of use. The notice claimed there had been six breaches of conditions attached to the 1991 planning consent.

The pair then appealed against the second enforcement notices and issued judicial review proceedings.

In challenging the second enforcement notices, the couple's lawyers argued that the 1991 permission could no longer be relied upon by the council as a basis for enforcement action because there had been a lawful change of use of the site that had resulted in a new planning chapter.

It was submitted that a change of use from one category of livery to another could not amount to a material change of use.

What had occured, they argued, was merely an intensification of use, which could not itself lead to a material change of use without a change in the land's character.

The distinction that the council sought to draw between DIY livery, which it regarded as lawful, and commercial livery was based on a contractual distinction relating to the payment of rent. Such a distinction was not relevant in planning terms, the couple’s lawyers argued.

For its part, the council argued that the issue of whether there had been a material change of use was a matter of fact and degree.

In arguing that the use of the land had changed from recreational to business, the council relied, amongst other things, upon an increase in the number of stables, the erection of new buildings and the employment of staff to work on the site.

In dismissing the couple's challenge to the second enforcement action, High Court judge Justine Thornton QC agreed that the alleged breach of planning control gave rise to a classic question of fact and degree that did fall within the realms of planning judgment.

The council's view that there had been a material change of use would in any event be fully tested during the couple's forthcoming appeal against the second enforcement notice, the judge said. That appeal is due to be heard by a planning inspector in April this year.

The judge’s ruling said that the local planning authority "has examined the evidence available to it and reached the view that there has been a material change in the use of the land. Whether that view is correct will be tested in due course before a planning inspector."

"There is, it seems to me, nothing unreasonable about the council's conduct at this stage of proceedings," the judge said.

Also dismissing the couple's challenge to the breach of the condition notices, the judge noted that the council had not yet instituted criminal proceedings in respect of alleged breaches. If the council did decide to prosecute, the issue of whether there had been a material change of use would be considered as part of the couple's defence in those proceedings.

Judge Thornton also dismissed the council's challenge to the costs order awarded in relation to the first enforcement action.

In October 2018, the Court of Appeal upheld a council's enforcement action against the illegal development of three new residential buildings in the countryside, refuting the owner's claim that the authority's demand for the complete demolition of the structures was 'over-enforcement'.

Johnson & Anr v Royal Borough of Windsor and Maidenhead. Case Number: CO/3915/2018

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