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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bhamjee, R (on the application of) v Secretary Of State For Transport, Local Government & Regions & Anor [2002] EWCA Civ 311 (28 February 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/311.html Cite as: [2002] EWCA Civ 311

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT0
(MR JUSTICE CARNWATH )

		Royal Courts of Justice Strand London WC2A 2LL Thursday 28 February 2002

1. LORD JUSTICE DYSON: Mr Bhamjee is the owner of 86/88 Upton Lane, Forest Gate, London. In 1971 the London Borough of Newham ("Newham") granted him planning permission to make alterations at that property so as to provide a ground floor shop and three self-contained flats. Attached to that permission was a condition (3) which stated:

"The yard area formed at the rear of the building shall be provided prior to the commencement of the use of the ground floor shop and retained permanently for the accommodation of vehicles of the occupiers or persons calling at the premises only and shall not be used for any other purpose."

2. By 1999, however, Mr Bhamjee was using the yard as a car wash and/or car valeting business which the council contended was in breach of condition (3) as he did not have planning permission for that use. On 12 February 1999 Newham wrote to Mr Bhamjee informing him that the use of his yard for this purpose was in breach of planning control.
3. On 28 May 1999 Mr Bhamjee applied for planning permission to permit that use under section 73A of the Town and Country Planning Act 1990. This application was refused on 15 July 1999. Mr Bhamjee appealed to a planning inspector pursuant to section 78 of the Act. His appeal was dismissed on 22 December 1999. On 17 March 2000 Newham served an enforcement notice on Mr Bhamjee in respect of the yard.
4. Mr Bhamjee applied to Newham on or about 14 June 2000 for a Certificate of lawfulness of use under Section 191 (Existing Use or Development) or section 192 (Proposed Use or Development) of the 1990 Act. This application was refused on 9 August 2000. Mr Bhamjee appealed. On 1 May 2001 the Planning Inspector heard the appeal against the enforcement notice. He dismissed that appeal and upheld Newham's refusal to grant a certificate of lawfulness. His decision was dated 18 May 2001.
5. Mr Bhamjee appealed against the Planning Inspector's decision of 22 December 1999 to refuse planning permission to a change of use under section 288 of the Act. This appeal was heard by Sullivan J on 23 January 2001, and the appeal was dismissed. Mr Bhamjee's application for permission to appeal was refused by me on 29 June 2001.
6. Mr Bhamjee commenced proceedings to challenge the decision on 18 May 2001. The challenge to the dismissal of the appeal against the enforcement notice was based on the grounds that: (i) the matters alleged did not constitute a breach of planning control; and (ii) the copies of enforcement notice were not served as required by the Act. The first ground was dealt with by Sullivan J at paragraph 24 of his judgment. There was a change of use for which planning was required. As the inspector said:

"The purpose for which the land was being used before the appellant started his own business was a mixed use for retail and residential use. His use on his own admission is not the same and in any event there is no order that specifies a mixed use of retail and residential as a use nor does any order specify the appellant's use in any class."

7. Condition (3), attached to the earlier planning permission granted in 1971 was in the terms I have recited. That permission required an ancillary link to be retained between the use of the yard and the rest of the site. It is not disputed, nor disputable, that the ancillary link has been broken. As regards the point about service, there seems to be no doubt that the enforcement notice had been served as the Inspector found.
8. The other challenge to the decision of the 18 May 2001 was an appeal under section 195 of the Act against the refusal to issue a certificate of lawfulness of the existing use under section 191(4). The basis the claim to such a certificate was that the existing use was lawful within the meaning of section 191(2) which provides:

"For the purposes of this Act uses and operations are lawful at any time if-

(a) no enforcement action may then be taken in respect of them (whether because they did not involve development) or require planning permission or because the time for enforcement action has expired or for any other reason) ..."

9. But it was for the very reason that the use did involve development and did require planning permission that the challenge to the enforcement notice itself failed. It inevitably followed that the appeal under section 191(5) was also bound to fail.
10. Against this background I can pull the threads together quite briefly. This is an application for permission to appeal against (1) the refusal by Gibbs J to grant permission to apply for judicial review inter alia of the inspector's decision to uphold the enforcement notice; and (2) the judge's striking out of the appeal under section 195. It will be apparent from my brief summary that in my view the judge reached the correct decisions on these issues. The appeal against the enforcement notice was hopeless as was the appeal against the refusal to issue the certificate.
11. That deals with the main issues. Mr Bhamjee has made a number of other complaints which I have endeavoured to understand on a careful reading of the various documents that he has prepared. I have found some of his complaints unintelligible, but, in so far as I have understood them, they are plainly misconceived. Gibbs J dealt with some of them and I agree with his reasons for dismissing them. In some respects Mr Bhamjee is plainly attempting to reopen issues that were determined in the proceedings that culminated in the decision of Sullivan J. I do not regard it as necessary in this judgment to go through each of the points taken.
12. However, it is clear that Mr Bhamjee feels very strongly about these matters. He makes a number of allegations of what he calls fraud against officers of Newham, and he makes allegations against counsel. He has taken these points up with the General Council of the Bar. He wishes to refer matters to the European Court of Human Rights at Strasbourg. On my appreciation of this case, all these complaints have no prospect of success, but they are not before me.
13. For the reasons that I have given, I am satisfied that the matters before me have no prospect of success and I therefore refuse this application.
Order: Permission to appeal refused. No jurisdiction to grant request to appeal to the House of Lords.