KP JR Management Co Ltd v Richmond upon Thames LBC  EWHC 84 (Admin)
On 24 January 2018 it was upheld by the High Court that a local authority had been entitled to grant a certificate of lawfulness of existing use or development ('CLEUD') certifying that the mooring of a specified number of boats for residential and private leisure purposes at the site on the Thames was lawful.
There have been moorings at the site (Kew Marine) since at least 1916, however conflicting evidence existed as to when the residential use of the boats moored at the site began. The Council therefore obtained an opinion from Nathalie Lieven QC in 2008 on the use of the Site. She advised that:
- The planning unit was the extent of the demise from the Crown Estates (the area of the mooring and its immediate surroundings on the bed of the river)
- There was strong evidence of more than 10 years residential use by two vessels moored at the site, which were now immune from enforcement
- There was evidence that another vessel had been moored at the site and used for residential accommodation for six or seven years, and the mooring occupied by that vessel was occupied by another vessel before that since around 1987.
- There had not been any change in use since around 1986.
- Evidence also suggested that two other barges had been moored at the Site since 2009, and used for residential purposes, although mainly at weekends. A narrow boat had also been moored at the Site and used for residential purposes since 2014 and in 2015 a residential barge began mooring at the Site. Several other boats were moored at the Site but used for leisure purposes.
Kew Marine (the first interested party) ('1IP') let the mooring to boats for residential and leisure use. Local residents had complained to the local authority about problems arising from increased residential use at the site, including privacy issues, wood smoke, delivery lorries, parking and sewerage removal. They sent the council a pre-action protocol letter challenging the ongoing failure to take enforcement action in respect of an alleged breach of planning control i.e. material change of use arising from the intensified residential use of the site. However, the local authority denied any obligation to take enforcement action, and the claimant issued a judicial review claim.
The 1IP therefore applied for a CLEUD which was granted in August 2017, providing that the mooring could be used for residential and private leisure purposes by four boats permanently occupied for residential purposes, two boats occupied from time to time for residential and/or private leisure purposes, and four boats used for private leisure purposes.
The statement of reasons provided that the 1IP had satisfactorily proven that two moveable boats in residential use had subsisted at the site for a period of at least 10 years, together with moveable leisure craft and ancillary vessels, and that the mooring of the specified boats for mixed residential and leisure purposes was therefore lawful within the meaning of s.191 Town and Country Planning Act 1990 ('TCPA'). The claimant issued a second judicial review claim challenging that decision, which was ordered to be heard together with the first claim.
The claimant contended that the decision to issue the CLEUD was unlawful because:
- The local authority had wrongly made its decision on the basis that the planning unit comprised the mooring and pontoon area as a whole, having rejected the contention that the moored boats comprised separate areas of occupation within the site
- There was insufficient evidence to establish that residential use of the vessels had subsisted for at least 10 years prior to the date of the application for the CLEUD
- The use certified as lawful in the CLEUD was not supported by evidence.
Identification of planning unit
The decision-maker had to make a planning judgment as to the appropriate planning unit, which was a matter of fact and degree. The court would not interfere with an exercise of planning judgment, and would only intervene if an error of law was established.
In the exercise of its planning judgment, the local authority had been entitled to conclude that the mooring and pontoon area as a whole was the appropriate planning unit.
The officer's report recognised that opponents to the application for the CLEUD insisted that each boat should be considered a separate planning unit, but concluded that this was not considered to accord with the legal principles for defining a planning unit and would not be practical in any event as individual boats could move their positions. It was therefore not arguable that the Council failed to have regard to material considerations when it concluded that the planning unit comprised the mooring and pontoon area as a whole.
Prior residential use
The was ample evidence on which the local authority could properly conclude that there had been continuous use of at least two vessels moored at the site for more than 10 years prior to the application for the CLEUD. The 10 year time limit for enforcement against a change of use had therefore expired. Under s.191(2)(a) TCPA 1990, the use of the land would be lawful if it could not be subject to enforcement action.
The council exercised its planning judgment, concluding that the increase in vessels in residential use at the site had not resulted in such a change in the character of the use that it amounted to a material change of use. Additionally, officers had expressly advised the planning committee that the Council was considering an application for a CLEUD, not an application for planning permission, and that therefore the planning merits of the increase in residential mooring or other factors regarding the use of Kew Marine were not relevant.
Scope of CLEUD
The content and degree of particularisation in a CLEUD was a matter of judgment for the local authority. The scope of the CLEUD had accurately reflected the existing use which the local authority had found to be lawful.
The judgment emphases the wide discretion given to local planning authorities in making a planning judgment as to the appropriate unit and whether a material change of use has occurred. The decision also upholds that the principle that mere intensification of use, if it falls short of changing the character of the use, will not constitute a material change of use.