Bhamjee, R (on the application of) v Secretary Of State For Transport, Local Government & Regions & Anor

A use of land cannot be treated as lawful under section 191(2) of the Town and Country Planning Act 1990 where it involved development requiring planning permission and enforcement action remained available. Once an enforcement notice is upheld on that basis, a related challenge to the refusal of a certificate of lawfulness is bound to fail. Permission to appeal may be refused where the proposed grounds have no prospect of success, including where they seek to reopen issues already determined.

The applicant used the rear yard of his property as a car wash and car-valeting business, although the original planning permission required the yard to be retained for vehicle accommodation ancillary to the authorised use. The local authority treated the use as a breach of planning control, refused an application for planning permission, and served an enforcement notice. A planning inspector dismissed the relevant appeals, including the appeal against the refusal of a certificate of lawfulness.

The applicant challenged the inspector’s decision in the Administrative Court. Permission to apply for judicial review was refused and the appeal concerning the certificate was struck out. The application before the Court of Appeal concerned whether those decisions should be revisited, principally on the issues of breach of planning control and whether the use could be lawful for certification purposes.

Application refused. Lord Justice Dyson concluded that the matters raised had no prospect of success. The Court of Appeal also had no jurisdiction to grant the applicant’s request for an appeal to the House of Lords.

1. Breach of planning control. The inspector was entitled to find that the applicant’s use was different from the previously authorised use. The earlier permission required an ancillary link between the yard and the remainder of the site. That link had been broken. The use therefore involved development requiring planning permission, and the challenge to the enforcement notice was hopeless.
2. Certificate of lawfulness. Section 191(2) of the Town and Country Planning Act 1990 provides that a use is lawful only where no enforcement action may be taken in respect of it, including because it does not involve development or require planning permission, or because the enforcement period has expired. Since the use required planning permission, it could not be lawful on the applicant’s case. The related appeal against refusal of a certificate under section 191 was consequently bound to fail.
3. Other complaints. The remaining complaints were either unintelligible or plainly misconceived. Some attempted to reopen issues determined in earlier proceedings concerning the planning permission. Allegations of fraud and complaints concerning counsel, together with the proposed reference to the European Court of Human Rights, were not matters properly before the court and had no prospect of success.

Order: Permission to appeal refused.

• Court of Appeal (Civil Division) — In [2002] EWCA Civ 311, Lord Justice Dyson refused permission to appeal, holding that the proposed matters had no prospect of success. The court stated that it had no jurisdiction to grant an appeal to the House of Lords.
• Administrative Court — Refused permission to apply for judicial review of the inspector’s decision upholding the enforcement notice and struck out the appeal concerning the refusal of a certificate of lawfulness. No citation for that decision is stated in the judgment.