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The original action taken by Dover District Council, when they destroyed my bungalow in 1989, was unlawful and therefore it follows that every action that the council has taken against me since, is also unlawful. Soon after Dover District Council had demolished my bungalow they took action against me to remove my mobile home, which had been legally sited before the bungalow was demolished, thereby continuing uninterrupted the lawful residential use of the land. The Council unlawfully issued an enforcement notice on the 27 February 1990, ordering its removal. In a Committee Report dated 7 Sept 1989 DDC reported that when they demolished my bungalow they noticed a mobile home was stationed in my garden. In their report the Council falsely stated:
“Such
use of the land also required
planning
permission, which had not been obtained”.
But the mobile home did not require planning permission, and the Council took unlawful action against me, despite its own legal department providing the following advice in a memo dated 22 August 1989:
“A
mobile
home/caravan with wheels is not a structure and therefore the placing of
such items on land cannot constitute operational development. Operational
development required planning permission regardless of the use intended to be made
of the land or the building intended to be constructed. It follows that planning control of the placing of a
mobile home/caravan on
land depends solely
upon establishing that a material change of use has occurred.
The Council’s legal department had therefore
informed Committee, unequivocally, that they could only take action
against me if there had been a material change of use. Clearly there had been no
change of use because the mobile home was being used for residential
purposes and the site benefited from existing residential use rights. Yet, despite taking legal advice, the Council still went ahead and unlawfully took action to remove my mobile home. It was held by the Court of Appeal (Wealden DC v S of S 1987) that the stationing of a caravan on land did not of itself establish a material change of use. The Notice must also state the use to which the caravan is put. If that use is ancillary or incidental to the primary use of the land, then no change of use occurs at all… The use of the mobile home certainly was ancillary or incidental to the primary use of the land, i.e. residential, because that became home for my wife, myself and our two children just prior to DDC destroying our bungalow. Therefore planning permission was not required and an enforcement notice should never have been served. Clearly and without doubt there had been no change of use whatsoever and there is irrefutable evidence proving that the property had been used continuously as a lawful residence since 1928. Further evidence of the long-standing lawful residential use of my property is contained in a report from the Council’s own Professional Standards Investigator when he stated in section 3.32:
“Taking
into account the Planning Inspectors findings in November 2000, the Head of
Legal Services advice to the complainant’s solicitor in her letter of 8th
October 1984, the evidence provided by the next door neighbours and the
undisputed evidence that between June 25th 1984 and 31st
July 1989 the complainant and his family lived at the Oaks, it is my view that there
is a record of residential use of the site from 1928 to 31st July
1989”.
The Professional Standards Investigator also recorded, in his report, the names of all previous residents who had occupied the property from 1934 until the time I purchased it in 1984. He also confirmed that there are letters on file from other local residents confirming residential use during the period in question. Further evidence that the residential use had not ceased was contained in a letter dated 8th October 1984 from Lesley Cumberland, Director of Legal and Administrative Services in which she stated:
...“I
have conferred with the Director of Planning on the alleged statement that the
residential use of the site may have ended, and I can confirm that the Council
are not saying that the residential user rights have been abandoned, only that
the operation carried out on site is, as a matter of fact and degree, a building
operation and thereby constitutes development requiring planning
permission”...
The Council’s legal department also advised Committee of
the following:
“It is
almost certain that if an appeal is lodged against an EN (enforcement notice)
alleging that a material change of use has occurred, this will
necessitate a thorough
investigation
by Officers of the history of the use of the site for residential purposes”.
The question has to be asked:
Why
didn't the Council
carry out an investigation to confirm the long-standing residential use
of my property before they demolished my home?
Their philosophy appears to be 'knock it down first and ask questions after'. Since this dispute started in 1984 Dover District Council has repeatedly presented inaccurate and misleading information. This is confirmed in the findings of the Council’s Professional Standards Investigator who stated in his report:
6.10 "After careful consideration of all the files and documents relating
to the history of this site I have come to the conclusion that the Planning
Committee reached the decision to demolish the complainant’s home based on
inaccurate and misleading advice". 6.11 "This was
maladministration".
The Council also falsely stated that I had erected a new bungalow. That is not the case, I did not erect a new bungalow but I did renovate the existing bungalow. However, the demolition of a building does not in itself destroy existing use rights formerly enjoyed with it. In
Jennings Motors v Secretary of State [1982] The
Court disagreed and ruled that
the erection of a new building to replace an earlier one did not constitute a
new planning unit, but the new building could inherit the use established by the
former.
The motives of Dover District Council are extremely questionable in this case for it's certainly not their remit to punish any individual for an alleged breach of planning control. The remedy for any unauthorised development is provided for within the Town & Country Planning Act, which is very clear and precise on the matter. The relevant Act in this particular instance was:
The
Town & Country Planning Act 1971 c.78 Part V section 87
(6)
An enforcement notice shall specify— (b)
the steps required by the authority to be taken in order to remedy
If a precedent had been set since the 1971 Act then the 1990 Act would have been amended but that is not the case. The relevant 1990 Act states:
Town
& The Country Planning Act 1990 c.8 Part VII section 173
(3) In this section “steps
to be taken in order to remedy the breach” means steps (a) of restoring the land to its condition before the development took place...
The Council never gave me the opportunity to carry out the steps stipulated by the Town and Country Planning Act and this is confirmed by the Council’s Professional Standards Investigator who stated that there is no record in the files to show that I was given the opportunity to put matters right. There is compelling evidence that the Council's action was wrong in law and therefore the enforcement notice should not have been served. It
was Dover District Council’s default in observing the law that precipitated
and induced my subsequent default. A
public authority owes as great an obligation to comply with the law as any
individual. In fact its responsibility is exceedingly more than that of
individuals who are virtually forced to disregard the law in order to be able to
exercise their fundamental rights.
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