Young & Anor v First Secretary if State & Anor

In assessing whether a lawful residential use has been abandoned, the decision-maker must consider the relevant circumstances, including the physical condition of the building, the period of non-use, any other use and the owner’s intention. The decision-maker may give particular weight to one factor, including physical condition, provided the conclusion is not irrational. Where the proposed works would effectively create a new dwelling in the countryside, refusal may properly be based on countryside planning policies. Article 1 of the First Protocol is not engaged merely because planning permission is refused and the applicant loses the prospect of obtaining permission.

The claimants sought under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s dismissal of their appeal against refusal of planning permission. The proposal concerned the rebuilding of a fire-damaged and largely demolished dwelling in open countryside.

The inspector concluded that the proposal would effectively provide a new house and conflicted with countryside and replacement-dwelling policies. The claimants alleged that he gave irrationally determinative weight to the building’s physical condition when considering abandonment, and that the refusal infringed Article 1 of the First Protocol. The central issues were whether the inspector’s reasoning was irrational and whether refusal of permission interfered with the claimants’ protected possessions.

1. Application refused. The inspector’s decision was not irrational. The court applied the demanding Wednesbury standard: the weight given to a material consideration is for the decision-maker, provided relevant considerations are taken into account.
2. The principles concerning abandonment, identified in Hughes v Secretary of State for the Environment [2000] 1 PLR 76, required consideration of the physical condition of the building, the length of non-use, any other use and the owner’s intention. The inspector had addressed those matters. He was entitled to regard the building’s extreme dereliction as particularly significant, notwithstanding the claimants’ intention to resume residential use, the earlier certificate of lawful use, and the fact that the damage resulted from vandalism.
3. The court construed the inspector’s decision as turning principally on planning policy, rather than on abandonment as an independent issue. The remaining structure was incapable of residential use and the proposal would effectively involve constructing a new house. The inspector was therefore entitled to find conflict with the countryside policies and with Policy RES10, which permitted replacement dwellings only where there was special justification and specified limits on size, scale and footprint.
4. Article 1 of the First Protocol was not engaged. Refusal of planning permission did not deprive the claimants of their possessions or peaceful enjoyment of them. It deprived them only of the prospect that permission for the proposed operational development might be granted.
5. The claim was dismissed. The first defendant was awarded costs of £3,410.

The judgment itself records that the claimants appealed to an inspector against the local planning authority’s refusal of planning permission. The inspector dismissed that appeal. The claimants then brought this section 288 challenge in the Administrative Court, which refused the application and dismissed the claim.