A few days before Christmas, 2008, four representatives from Dover District Council DDC visited me at my home. Their manner was aggressive and intimidating when they made it absolutely clear that the purpose of their visit was to put in place arrangements for the complete destruction and removal of my home, garden shed and greenhouse.

They also stated that they would return my property to ‘rough grassland’ and in the process make me homeless.

Return to ‘rough grassland’ is an extraordinary statement to make because it has never been rough grassland. Research indicates, that if anything, the land was woodland prior to the construction of the bungalow in 1928.

Since that time I have had no contact from Dover District Council DDC and if there was reasonable excuse for the delay then they should have stated this in a timely way. Otherwise what was the point of them coming just prior to Christmas, other than to cause harassment?

Certain Dover District Council DDC personnel are specifically employed to tell lies for a living and they become a law unto themselves. They’re an arrogant bunch that naturally assumes that what they say is gospel and expect everyone to kowtow to their demands. Paul Francis is the typical arrogant, bully-boy ‘Enforcement Officer’. I found him to be rude, aggressive and unconcerned with the true facts. He enjoys following Council orders even though he is aware of the evidence proving their action is wrong. Thank God he’s no longer a police officer.

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After the Council had forced me away from my property, the empty garden soon became a local rubbish tip and scrap vehicles accumulated on the land (unknown to me).

It became an eyesore, an annoyance to local residents and the subject of further enforcement action, which required me as owner of the site to clear it even though this situation was a direct result of the council demolishing my home.

Printed below are a few photos, alternating, showing the before and after or rather the after and before!

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‘Windy Ridge’ is just one example of the extreme inconsistency that is prevalent in Dover District Council’s decision making. There are many, many other examples.

When challenged about their inconsistent decisions, the Council’s standard response is that each case is judged on its merits. And so it should be, but they don’t disclose or justify what those merits are. The flexibility, inherent in the planning decision-making process, makes it easy for planners to show both favouritism and discrimination as they see fit, which leaves the system open to abuse and corruption.

In reality so much will depend on who the ‘applicant’ is.

Suzanne Maxted was the owner of ‘Windy Ridge’, a bungalow in Preston Hill, Wingham. She was an eccentric person with a fiery temper and well known to the local people. The Post Mistress in Wingham would not allow her into the Post Office because of her foul language so she had to wait outside for her pension to be brought to her. Miss Maxted could often be seen chasing and stoning her ‘husband’ as he ran away from her, across the fields, in his underpants.

One day her husband would not move from the deck chair that he was sitting in, so she set light to it. Unfortunately he was very close to the bungalow at the time and that too caught alight and was destroyed in the fire. That was in August 1977 and thereafter the property remained an uninhabitable ruin.

After the fire Miss Maxted initially lived in a brown & cream coloured caravan. Before long all the windows in her caravan were smashed and the caravan ruined. She then lived in various structures including a tent and a makeshift tarpaulin structure strung between the trees. There were no washing or toilet facilities.

Miss Maxted bequeathed her land to the National Trust when she died, as her wish was to aid conservation and wildlife. She never intended for her land to be re-developed. Nevertheless after her death, an application was made in 1998 to Dover District Council for a Certificate of Lawful Use.

The applicant’s agent sought information supporting the residential use of the land and one of the people contacted was Mr David Sturt, Dover Council’s former Chief Planning Officer, who had left the Council and became involved with the church. Mr Sturt had been helping with a ‘soup run’ to the homeless in Canterbury where he met Miss Maxted, who had joined the group.

I employed a private investigator to interview Mr Sturt in 2004. One of the things he was questioned about was ‘Windy Ridge’ and he confirmed that he recalls Miss Maxted lived in a tent. Mr Sturt was also questioned about a letter he sent supporting the application for a Certificate of Lawful Use.

Mr Sturt denied writing such a letter.

However, I have a copy of that letter, which he had personally signed and in it Mr Sturt refers to the time he was employed at DDC and had occasion to go on to the site. In the letter he states:

…”It was overgrown. There was a derelict caravan and the ruins of a bungalow. There was evidence of the bungalow being slept in – a simple bed and various drinking and cooking utensils. I believe this was in a lean to part of the bungalow. At that time she was clearly sleeping in the ruined bungalow rather than the caravan”.

So did Mr Sturt lie, or did he forget?

The following is a brief resume of the Council records relating to the application for a Certificate of Lawful Use at ‘Windy Ridge’:

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Various officers who inspected ‘Windy Ridge’ confirmed that the bungalow had been badly damaged by fire, that it was effectively derelict and would require complete demolition prior to rebuilding and it appeared that no attempts were made by the owner to repair the bungalow or, indeed, to protect it from the elements. There is no particular reference at any time, however, to the “chalet” to which the application for a Certificate of Lawful Use related.

The “chalet” was effectively a weather boarded lean-to extension to the bungalow with a slate roof and an internal room division but lacking window glazing and flooring and no kitchen or bathroom facilities. The former dwelling had been vacated in 1977 and there was no clear evidence as to when the “chalet” was occupied following the fire.

The fact that a caravan was stationed on the land and received (temporary) planning permission shortly after the fire could well imply that the bungalow as a whole (including the “chalet”) was vacated. The fact that caravans were subsequently and continuously stationed on the land thereafter would suggest that, if indeed the whole of the former dwelling had been vacated in about 1977, such vacation continued.

The critical issue, therefore, is whether the apparent vacating of the “chalet” by the owner between the fire in 1977 and it’s re-occupation in (say) 1994/1995 (vacant for 17/18 years) constituted its abandonment. Although the period of non-use was comparatively lengthy, there is no evidence of any intervening use or of any deliberate intention to abandon this part of the total original dwelling. Its physical condition is poor, but it is essentially structurally complete and it is potentially capable of restoration. Case law indicates that it is possible to issue a certificate relating to such a two-roomed building where it is capable of supporting a basic residential use, as in this case.

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Copied below is legal advice about what constitutes a dwelling house and the related concept of abandonment. It is an internal memorandum from Dover Council’s Head of Legal Services to their planning department and the subject is ‘Windy Ridge’.

The memo is dated 1998:

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MEMORANDUM

From: HEAD OF LEGAL SERVICES

To: Director of Planning and Technical Services

(Originator) Ian Ginbey – Ext: 2328

Attn: Tim Flisher

Subject: WINDY RIDGE, PRESTON HILL, WINGHAM

Your ref: TJF/EC/DOV/97/0912

My ref: L/IG/PLAN 1(W)

Date: 7 July 1998

Thank you for your memorandum of 29 June.

I note from the letter which you have received from the applicant’s agent that the application is now restricted to the “chalet” which is essentially what was agreed at last month’s site meeting. My recollection of that meeting is that it was also agreed that a structure, such as the “chalet”, is capable of being described as a “dwelling-house” and reference was made, in this respect, to the Gravesham case. This is also confirmed by the agent.

I would only add that you should have regard to the related concept of abandonment in the context of the application. In most cases, these two concepts are fused; that is, facts that point to abandonment will also point to the conclusion that the building is not a dwelling house. It follows that in the instant case the applicants should evidence that the use of the “chalet” as a dwelling-house has not been abandoned in order to gain the benefit of a Certificate of Lawfulness of Existing Use pursuant to Section 191 of the Town and Country Planning Act 1990. I recall that the submitted evidence is a little vague in this respect with only one statement making reference to Miss Maxted’s occupation of the “chalet” (although it is possible that some of the evidence has been given on the premise that the bungalow and the “chalet” are one and the same). It is, of course, a matter for you to determine as a matter of fact and degree and you no doubt formed an opinion at the site meeting. Certainly, there appeared to be some evidence of residential occupation.

Notwithstanding the above, I should add for the sake of completeness that there obviously can be cases where even though a dwelling-house use has been abandoned, the building may still be regarded as constituting a dwelling-house. In such cases, operations could be undertaken to the building, but clearly it could not be used as a dwelling house without the grant of planning permission. Contrariwise, I suppose it is just conceivably possible to argue that, although a building was such a ruin that it could not be considered a dwelling house, the use as a dwelling house had never been abandoned.

Ian D. Ginbey (Assistant Solicitor)

For Head of Legal Services (JWH)

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I have spoken to a number of local people who knew Miss Maxted’s living arrangements but nobody recalls the “chalet” which the Council refer to. They only remember seeing the floor slab of the burnt out bungalow and the fact that she lived in the various structures mentioned earlier including a caravan, a tent and a makeshift tarpaulin structure strung between the trees.

Subsequently a certificate of lawful use was granted for something that didn’t remotely resemble a dwelling and over twenty years after ‘Windy Ridge’ burnt to the ground and remained uninhabitable throughout that time, DDC granted permission for a ‘Replacement Dwelling’

Subsection (1) of Local Plan Policy DD7 states:

Proposals for replacement dwellings in the countryside will not be permitted unless the existing dwelling is: “A permanent structure in lawful residential use”

Subsection (2) states “Capable of continued residential use with the benefit of permitted development rights”

 

Clearly ‘Windy Ridge’ was not a permanent structure nor capable of continued residential use. It is incredulous that Dover Council decided the ruins of a burnt out bungalow, uninhabitable for so long, could be described as a dwelling yet apply a completely different criteria to my own case. It is indicative of the degree to which the nature of the applicant or owner of a property can influence planning decisions.

This is a clear example of the bizarre inconsistencies of DDC’s decision-making. They have applied one set of rules to my case and an entirely different set to the Windy Ridge case which resulted in the granting of planning permission in circumstances any reasonable person would consider far less justifiable than mine. It’s not sour grapes on my part but a serious concern that planning should apply equally and fairly to all.

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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.

Before Dover District Council destroyed my bungalow I placed a caravan in the garden adjacent to it, which my daughter lived in initially, joined by the rest of the family after the bungalow had been destroyed. The caravan had therefore been legally sited before the bungalow was demolished and, as its use was ancillary to the primary use of the land i.e. residential, the lawful residential use of the land continued uninterrupted.

A fact evidenced by this copy of a newspaper cutting which shows the Council destroying the bungalow. The caravan can be seen behind the JCB.

Subsequently 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.#It is arguable that existing residential use rights have existed on the site since pre-1963 and have continued since the end of 1963 and that the demolition of the rebuilt structure does not evidence an abandonment of those use rights. An EN may therefore be challenged on the ground that the caravan is being used for residential purposes, and this does not constitute a material change of use by reason that the site has the benefit of existing residential use rights.”

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.

Another ruling that clearly supports my case is: Restormel Borough Council -v- Secretary of State for the Environment and Rabey [1982] JPL 785

In essence, a hotel placed a caravan within its grounds to house its waitresses. The council served an enforcement notice.

The Court held that there had been no material change of use. The use of the caravan was incidental to the main use of the land. The test was to be applied by looking at the alleged change in the context of the entire planning unit.

Therefore, in my case, 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 is clearly, ‘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 landowners had demolished a building and erected a new building on a small part of the entire site, but without obtaining planning permission. The local authority argued that this was a change of use and a breach of planning control.

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 the breach, that is to say steps for the purpose of restoring the land to its condition before the development took place ….

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 for the purpose – (a) of restoring the land to its condition before the development took place…

The Council never allowed 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 never have been served.

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There is generally no time limit for criminal proceedings whereas civil proceedings are subject to varying time limits.

The criminal law is an institution for censuring people for wrongs not misfortunes and a crime requires a certain consequence to have been caused by the act.

Thus in ‘criminal damage’, the act must cause damage. What constitutes criminal damage is a matter of fact and degree and it is for the justices, applying their common sense, to decide whether what occurred was damage or not.

When I purchased my property I started from a lawful base.

Dover District Council (DDC) commenced a chain of events that they knew would result in the complete destruction of my home. By a combination of act and word they created and exposed me to a foreseeable risk of excessive damage and loss when they set out to destroy my property and through their instrumentality that event occurred.

DDC had knowledge of the circumstances and foresight of consequences and in addition their conduct was voluntary and wilful.

The Criminal Damage Act 1971 relating to Destroying or Damaging property states:

A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

I submit that the ‘defence of lawful excuse’ cannot apply in this case. DDC were responsible for complying with the Town and Country Planning Act and it was incumbent upon them to do it efficiently and accurately. They did not follow the correct procedure as laid down in the Town and Country Planning Act and their omission led to the complete destruction of my home which would not have occurred had DDC acted in performance of their duty.

I can show that DDC committed a malicious act which made a more than negligible contribution to its occurrence. Their action was neither too remote, too trivial nor too accidental to have a joint bearing on their liability or on the gravity of their offence and which was the sole cause of the destruction of my home.

DDC purposely and knowingly caused damage of a high value; the complete destruction of my property.

I can also demonstrate that they omitted to do an act which would have prevented its occurrence and which they were under a duty to do according to law. There was a statutory duty that they wilfully and deliberately left unperformed. A public officer commits a misdemeanour when he wilfully neglects to perform a duty which he is bound by statute to perform. Evidence shows that the neglect was wilful and not merely inadvertent. Culpable in the sense that it was without reasonable excuse or justification.

DDC being specialists in the field of planning law are bound to higher skill and diligence than those who are not specialists. As specialists they owe a duty of care to carry out their procedures correctly and to observe the correct standards. They knowingly and maliciously pursued the incorrect procedure when taking enforcement action against me in the first instance and as a Statutory Public Authority they had both a moral and legal duty to prevent the unlawful appropriation, destruction and damage of my property. A Statutory Public Authority is liable for careless advice or information, for failures to take action to avoid harm and for failures of supervisory or regulatory functions.

DDC carried out a physical act when they destroyed my home and factual causation is established because, ‘but for’ DDC’s conduct the damage would not have resulted.

DDC’s intention was clear; it was to completely destroy my home and that intention to destroy was decided by the Paid Employee Advisers within 3 weeks of my purchasing the property.

In law the term ‘damage’ includes not only permanent or temporary physical harm but also permanent or temporary impairment of value or usefulness. Various court rulings have held that any alteration to the physical nature of the property concerned may amount to damage within the meaning of the law and where interference with property amounts to an impairment to the value or the usefulness of the property to the owner, then the necessary damage is established.

Certainly the value of my property was damaged and as the property no longer existed its use in providing living accommodation ceased; it therefore lost its usefulness.

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Knock it down first, then ask questions afterwards

My bungalow, and family home, had been lived in by half a dozen different families during its 50-year life time.

• It existed during the depression of the 1930’s
• It survived the Second World War
• It stood up to numerous severe storms.

But Dover District Council illegally destroyed it in less than one hour.

On Monday the 31st July 1989 Council officials arrived, accompanied by an outside contractor with a mechanical digger and a lorry. The Council had engaged the services of W. Brazil, a small firm from Thanet whose main line of business was skip-hire and tree surgery.

The day before the demolition, on the sneaky instructions of Dover District Council, the Electricity Board and Water Board cut off our electricity and water without even consulting us!

As a family, we had barricaded ourselves inside our home and, witnessed by both the BBC and ITV, who were filming the demolition, I asked the Council’s Chief Planning Officer, David Sturt, three main questions:

1. Did I demolish the original bungalow?

After a great deal of hesitation, whilst being pressed for a one word answer, he finally and very reluctantly said, NO, I had not demolished the original bungalow.

2. Did I properly purchase a residential dwelling?

After yet more hesitation and stuttering he finally admitted YES I had properly purchased a residential dwelling.

Was the bungalow rated as a residential property?

3. He finally confirmed YES it was rated as residential property

Yet despite publicly admitting the lawful residential status of the bungalow Mr Sturt ordered its destruction.

The Chief Inspector of Dover Police then asked to enter the property, which I agreed to, and after a lengthy discussion we came out for the sake of our two young children.

Then the mechanical digger drove up to the bungalow with its hydraulic arms slowly raising the front bucket. It then repeatedly brought the heavy bucket crashing down on to the roof and literally smashed our home to pieces, making light work of the timber framed bungalow.

We could do nothing but just stand and watch the devastation. Whilst Jim Horn, the Council’s solicitor, and David Sturt, the Council’s Director of Planning, smirked at each other obviously enjoying the experience.

After destroying our home the Council reported in the local press, that they were not obliged to provide accommodation for us because we had ‘made ourselves homeless’.

It was a shock to see them smashing it to pieces because the Council had informed me that they would dismantle my bungalow and then take the materials to their depot and store them. Adding, that if I did not pay their costs for demolishing my own home they would then sell the materials and use the money to pay for the demolition.

This was yet another false statement from the Council. 

What they actually did after they had smashed the bungalow to pieces was to immediately load all the debris onto the back of a lorry. I was later informed by somebody who followed the lorry [name supplied], that it was taken to the refuse tip and dumped.

It was a case of getting rid of the evidence quickly because if a forensic test had been carried out on the timber frame it would have confirmed that it was indeed the original timber frame, as I had repeatedly stated. But maybe that’s why they got rid of it so quickly, to cover up their wrongdoing.

Prior to Dover District Council demolishing my bungalow they falsely stated that I had ‘erected a new bungalow’.  But that was not the case!

The fact is that I renovated the bungalow and the original timber frame remained. There was no increase in its size and the renovated bungalow occupied exactly the same footprint.

I purchased my bungalow on the 15th June 1984, yet at a Planning Committee meeting dated Thursday 9th August, just 7 weeks later, the elected members voted to demolish it. The decision was made based solely on false information presented by the paid officials and without considering any representation from me.

There is overwhelming and indisputable evidence to prove that I did not demolish the original bungalow nor erect a new bungalow.

• David Sturt, who at that time was Dover Council’s Chief Planning Officer, confirmed that the original bungalow was never demolished. He confirmed this on the day of the demolition, witnessed and filmed by both the BBC and ITV.
• There is written evidence from near neighbours confirming that I did not demolish the original bungalow nor erect a new bungalow
• There is a statement from the carpenter who carried out work on my home confirming that the original bungalow was not demolished.
• Also, in a letter dated 8th October 1984, Lesley Cumberland, Director of Legal and Administrative Services of Dover District Council stated:

“…On the 19th June 1984, Mr Richards, Area Planning Officer, in the company of Mr Johnson, Assistant Building Control Officer, visited the site……the corrugated iron cladding had been removed, exposing all of the timber studwork. A new prefabricated trussed roof had replaced the original roof structure…….…”

• The above extract of a letter from the Council’s Legal Department proves that the original timber frame remained in-situ throughout the works of renovation thereby confirming that I did not demolish the original bungalow and erect a new one, as the Council wrongly claimed.
• And of course, there is the final and compelling evidence as Dover Council destroyed the bungalow. It was clear for everyone to see that the timber frame was not new, but the original frame, as I had always stated.

The Council’s Solicitor, Mr J. Horne, watched closely as the mechanical digger was crushing the bungalow. My wife approached him and pointed out that it could clearly be seen that the timber frame being destroyed was old timber and obviously the original, as constructed in 1928. His flippant reply that “anyone can make new timber look old” was particularly insensitive and most importantly totally wrong.

It is nonsensical to think anyone would consider making new timber look old if it was to be concealed behind cladding.

The Council’s action has never made any legal or moral sense to me or anyone else who has taken the trouble to scrutinise what they did and how they went about it. Their actions were, and continue to be, totally inconsistent with the facts and indeed unlawful.

The Council stated that I had erected a new dwelling when they knew full well that I hadn’t and this false and misleading information was presented to both the Planning Committee and the Planning Inspectorate. This shows that their motives were malicious, reckless and amounted to deliberate deception.

DDC are the experts in planning law and use the Town and Country Planning Act as the bedrock for what they do and are supposed to be competent in the use of the law, which they use to control others. Therefore they cannot use the excuse that they made a mistake.

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