Johnson & Anor v Royal Borough of Windsor And Maidenhead

Whether a change between different forms of livery amounts to a material change of use is ordinarily a question of fact and degree for the planning decision-maker. It may depend on the character and intensity of the use, including a change from private recreational use to business use. Judicial review does not permit the court to substitute its planning judgment for that of the local planning authority.

Planning permission must be construed as a whole. Its scope is not necessarily confined to the description in the heading where the operative terms, approved drawing and conditions show that it applies to the wider site. A specialist planning costs decision-maker is entitled to a presumption that the relevant guidance has been understood. A costs award requires unreasonable conduct which directly causes unnecessary or wasted expense.

The claimants challenged the Council’s service of a second enforcement notice alleging a material change from private recreational DIY livery to mixed private and commercial livery use, together with six breach of condition notices concerning a 1991 planning permission.

The Council also brought a statutory appeal under section 289 of the Town and Country Planning Act 1990 against a Secretary of State costs decision arising from the withdrawal of an earlier enforcement notice at the opening of an inquiry. The central issues were whether the alleged change of use was incapable in law of being material, whether the 1991 permission and its conditions applied only to an access road and lean-to, and whether the costs decision was unlawful.

1. Judicial review claim dismissed. The alleged change from DIY livery to commercial livery was a classic question of fact and degree. The principles in Fidler v First Secretary of State [2005] 1 P&CR 12 required consideration of the planning unit, the character of the use and any material intensification. The court could not determine the planning merits or substitute its view for that of the Council. The evidence relied on by the Council, including increased stabling, new buildings, a water tank and staff employment, was sufficient to make its decision rational at that stage.
2. The distinction between DIY and commercial livery was not legally incapable of constituting a material change. The planning permission itself distinguished private recreational use from commercial use, and the question remained for the Planning Inspector on the evidence.
3. The 1991 permission was construed as a whole. Applying R v Ashford Borough Council ex parte Shepway District Council [1999] PLCR 12, the permission incorporated the approved drawing and its conditions. Conditions concerning the site boundary, open areas, parking, buildings and the keeping of horses could not sensibly be confined to the access road and replacement lean-to. The conditions therefore applied to the wider site.
4. The Secretary of State’s costs decision was not unlawful. A mistake-of-fact challenge required an established, objectively verifiable fact, for which the claimant was not responsible, and which materially affected the decision. The competing recollections of the inquiry were contentious and not objectively verifiable. The Costs Inspector’s conclusion that the Council withdrew the enforcement notice without good reason was a matter of planning judgment.
5. The Costs Inspector applied the correct costs guidance. References to the case being untenable or to sufficient reason formed part of the reasoning and did not displace the applicable requirement for good reason. The decision was adequately reasoned. The late evidence was unreasonable, but it had not directly caused unnecessary or wasted expense because it could have been dealt with during the inquiry, potentially after an adjournment. The statutory appeal was therefore dismissed.

The judgment itself records no earlier appellate decision in the present proceedings. It determined a judicial review claim and a statutory appeal under section 289 of the Town and Country Planning Act 1990.