England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL Tuesday 31st July 2001

LORD JUSTICE SCHIEMANN: This is the judgment of the Court

1. These appeals raise two points of general significance. The most important concerns the extent of the duties of an inspector considering an appeal pursuant to s.174(2)(f) of the Town and Country Planning Act 1990 against an Enforcement Notice. The other concerns the proper interpretation of Part 6 of the General Permitted Development Order 1995.
2. They arise out of two enforcement notices on Mr Taylor. He had imported a lot of waste material including rubble onto his farm and constructed with it one large hardstanding, another large area of deposited waste and a track for farm vehicles. He appealed under the Act by way of written representations against the notices to the Secretary of State for the Environment. The appeals were, save for a variation in the time for compliance, dismissed by an inspector acting under delegated powers. Mr Taylor appealed to the High Court pursuant to section 289. Jackson J. allowed the appeals and remitted the matter to the Secretary of State. Now the Secretary of State appeals to this court.

The two enforcement notices

3. The enforcement notices described the matters which appeared to constitute the breach of planning control respectively as follows:

"Without planning permission, the change of use of the said land from agricultural use to agricultural use and use for the unauthorised importation and deposit of waste materials including builders rubble, road menders rubble and spoil."

4. This gave rise to what I shall call the material change of use appeal. This is to distinguish it from the other Appeal which arose out of the other enforcement notice which dealt with the carrying out of operations and alleged:

"Without planning permission, the carrying out of engineering or other operations including the laying of a hard surface approximately 50 metres x 30 metres situated in the approximate position marked "A" on the attached plan, and the laying of a track in the approximate position between the points "A" and "B" on the attached plan."

I shall refer to this as the operations appeal.

5. The steps required by the material change of use notice to be taken were

(i) Cease the importation and deposit of waste materials onto the land

(ii) Remove from the land all waste materials imported and deposited on the land including builders rubble, road menders rubble and spoil

(iii) When all waste materials have been removed from the land restore the land to its former condition as agricultural pasture land before the breach of planning control occurred.

(iv) Remove from the land all plant and machinery which is not associated with the lawful agricultural use of the land.

6. The steps required by the operations notice to be taken were

(i) Stop the carrying out of all engineering or other operations on the land

(ii) Remove from the land the area of hard standing and the track surface, together with all waste and other materials deposited on the land

(iii) Restore the land to its former condition as agricultural pasture land before the breach of planning control occurred

(iv) Remove from the land all plant and machinery which is not associated with the lawful agricultural use of the land.

The grounds of appeal to the Secretary of State

7. The possible grounds of appeal are set out in section s174(2)

(2) An appeal may be brought on any of the following grounds –

(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;

(b) that those matters have not occurred;

(c) that those matter (if they occurred) do not constitute a breach of planning control;

(d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;

(e) that copies of the enforcement notice were not served as required by section 172;

(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;

(g) that any period specified in the notice in accordance with section 173 (9) falls short of what should reasonably be allowed.

8. In relation to the material change of use appeal, the appellant relied on grounds (b), (c), (f) and (g). In relation to the operations appeal the appellant relied on grounds (a), (c), (f) and (g). It can be noted at this stage that he did not rely on ground (d); nor did he suggest either then or before us that what had taken place did not amount to engineering or other operations.

The powers of the Secretary of State

9. These are found in s. 176(1) and (2)

176. (1) On an appeal under section 174 the Secretary of State may

(a) correct any defect, error or misdescription in the enforcement notice; or

(b) vary the terms of the enforcement notice, if he is satisfied that the correction or variation will not cause injustice to the appellant or the local planning authority.

(2) Where the Secretary of State determines to allow the appeal,

he may quash the notice.

10. In very broad terms the task of the Inspector was to determine whether there had been a breach of planning control, whether to grant planning permission and, if he determined that the Enforcement Notices were rightly served, whether to vary any of their terms and if so which.
11. On the face of it what Mr Taylor had done amounted both to the making of a material change of use and to the carrying out of operations and was thus development which required planning permission – see s.55. Mr Taylor had not applied for, still less obtained, express planning permission from the authority. However he submitted that he had permission which had been granted by the General Permitted Development Order made pursuant to s.58(1)(a). The first main question in this appeal is whether this submission was well founded.

The General Permitted Development Order 1995

12. This provides as follows:-

3.(1) … planning permission is hereby granted for the classes of development described as permitted development in Schedule 2.

(2) Any permission granted by paragraph (1) is subject to any relevant exception, limitation or condition specified in Schedule 2

Schedule 2 Part 6

A The carrying out on agricultural land comprised in an agricultural unit of 5 hectares or more in area of

(a) works for the erection, extension or alteration of a building; or

(b) any excavation or engineering operations,

which are reasonably necessary for the purposes of agriculture within that unit.

A.1 Development is not permitted by class A if-

…

(d) the ground area which would be covered by

(i) any works or structure (other than a fence) for accommodating livestock or any plant or machinery arising from engineering operations; or

(ii) any building erected .... by virtue of Class A

would exceed 465 square metres.

A.2(1) Development is permitted by Class A subject to the following conditions -

…

(c) waste materials shall not be brought on to the land from elsewhere for deposit except for use in works described in class A(a) or in the provision of a hard surface …

(2) … development consisting of –

…

(b) the formation or alteration of a private way;

(c) … the deposit of waste material (where the relevant area … exceeds 0.5 hectare)

is permitted by Class A subject to the following conditions [there then follow various conditions precedent with which in the present case there has been no compliance].

Schedule 2 Part 9

A. The carrying out on land within the boundaries of an unadopted street or private way of works required for the maintenance or improvement of the street or way.

The inspector's decision

13. The material paragraphs read as follows:-

Appeal Decision Ground (b) (Appeal 1)

3. I conclude from the evidence of the main parties and what I saw on my site visit that a large quantity of waste material including builders and road menders rubble, has been brought on to the land which is in use for agricultural purposes for the rearing of sheep. The tipping of waste materials in general constitutes a material change in the use of land. The question of whether the works carried out is operational development reasonably necessary for the use of the land for agricultural purposes is a matter for consideration under the ground (c) appeal. I conclude that the breach of planning control alleged in the notice, namely the change of use of the land from agricultural use to agricultural use and use for the unauthorised importation and deposit of waste materials including builders rubble, road menders rubble and spoil has occurred as a matter of fact. The appeal on ground (b) therefore fails.

Ground c (Appeals 1 & 2)

5 …….

6. ……

7. …….

8. High Ash Farm is a working farm of approximately 50 hectares. The agricultural holding consists of fields and an orchard and is in use for sheep rearing. I find as a matter of fact that the hard surface in the approximate position marked "A" on the plan attached to the operational development notice covers an area of approximately 1,500 square metres. It is in use as a feeding area for the sheep. In addition, as I saw on my visit there is a further large area of deposited waste material close to point "B" on the plan attached to the operational development notice where the track from "A" to "B" meets a gated access on to Bullsland Lane. This area of deposited waste is also in use as a feeding area for sheep. On a plan attached to a letter to the Council dated 3 November 1998 the appellant estimated this area to be 150ft. x 200ft. (45.72 metres x 60.96 metres), that is to say approximately 2,790 square metres. Even allowing for this calculation to be an overestimate of the area, without doubt the development of both areas far exceeds the 465 square metres permitted development limit under Part 6 Class A of the GPDO.

9. In addition, waste materials have been deposited on the land adjacent to the hard surface at "A" and in a field beside the orchard which are not at present in use for works associated with the use of the land for agricultural purposes. It may be that the total area of land covered by all the deposits of waste material on the land do not exceed 0.5 hectare and are therefore not subject to the prior notification procedure under Class A. However, notwithstanding this the appellant failed to meet the requirement of Class A to give prior notification to the local planning authority of his intention to form a private way from "A" to "B" before beginning the development of the track. The development does not fall to be considered under Schedule 2 Part 9 of the GPDO as claimed by the appellant because Part 9 relates solely to works required for the maintenance or improvement of an unadopted street or private way. For development to benefit from permitted rights there must be a recognisable street or way already in existence. No evidence has been put forward to support any claim that there was a private way already in existence before the track was created from "A" to "B".

Ground (f) (Appeals 1 & 2)

21. The appellant contends that the steps required to comply with the notices are excessive because the materials which have been imported have been used in respect of essential engineering operations to comply with current day farming practices and requirements. The change of use notice is imprecise in that no plan has been submitted clearly indicating which sections of the farm track the Council require to be removed nor which areas of hard standing they consider unnecessary for the proper farming of the land. The hard standings will soon blend in and need not be removed. The removal of the materials used for their construction is therefore excessive. The removal of the hard standings and farm racks would result in an expenditure which could not be paid for by the farm and would also result in the current farming enterprise no longer being able to operate.

22. Having regard to my conclusions on the ground (c) appeals and ground (a) under Appeal 2, I consider the requirements of the notices to be necessary and reasonable to remedy the breaches of planning control and the injury to amenity caused by the breaches. I also find the change of use notice to be clear and precise in its requirements. The appeals on ground (f) therefore fail.

14. Thus her decision can be summarised as follows :-

(i) In relation to the change of use appeal she held that there had been a material change of use – para.3. She therefore dismissed the appeal on the ground set out in s.174(1)(b).

(ii)In relation to both appeals, she rejected the contention that what had occurred was permitted development under Schedule 2 Part 6A of the General Permitted Development Order 1995. In relation to the way, she rejected the contention that what had occurred was permitted development under schedule 2 Part 9.

15. The structure of 6A indicates that in order to discover whether some development is permitted by that part one should first examine whether the development is reasonably necessary for the purposes of agriculture. The inspector in due course concluded in paragraphs 11 and 12 that it was not. That could have concluded her inquiry.
16. However she did not need to approach the matter that way and in the event she did not do so. She considered first whether, even assuming that what was done was reasonably necessary for the purposes of agriculture and thus fell within Part 6A, nevertheless it was excluded by reason of the provisions of Schedule 2 Part 6 A.1 f or non-compliance with one of the conditions A.2. She came to the conclusion that it was excluded.
17. She held that the development far exceeded the 465 square metres permitted development limit under Part 6 A.1(d)(i)– para.8.
18. She held that, since the works involved the formation or alteration of a private way and there had been no compliance with the relevant conditions precedent referred to in part 6A.2(2), this also was not permitted by class A – para 9
19. She held that, since no evidence had been put forward to support any claim that there was a private way already in existence before the track was created from "A" to "B", Part 9 of the Schedule was of no assistance to Mr Taylor – para 9.
20. She held that, in any event, the deposits of waste materials on the land including the laying of the hard surface at "A" and the deposits adjacent thereto and at "B" and in a field beside the orchard, exceeded what was reasonably necessary for the purposes of agriculture within the unit – para 11.
21. And so she concluded that Mr Taylor could not rely on the grant of permission in the GPDO.
22. One of the grounds of appeal to the Secretary of State was that in s.174 (2)(f), namely "That the steps required by the notice to be taken … exceed what is necessary to remedy any breach of planning control …" . The inspector dismissed the appeal on this ground and refused to vary the notice– para 22. The correctness of that decision is the subject of what I have identified as the main issue in this appeal. It is however convenient to consider the other issue first.

The proper interpretation and application of Clause A.1(d) of Part 6 of Schedule 2 to the GPDO

23. The Inspector deals with this in paragraph 8; the Judge in the following paragraphs:-

51. In paragraph 8 of her decision letter, the inspector noted that the two areas of hardstanding at points A and B are used for the feeding of sheep. This led her to the conclusion that clause A.1(d) of Part 6 of Schedule 2 to the GPDO prevented the two areas of hardstanding from being permitted development.

52. The appellant challenges this conclusion in ground of appeal two. In developing this ground of appeal. Miss Macpherson submitted that the hardstandings are not "works… for accommodating livestock". She cited various dictionary definitions of the word "accommodate". She then submitted that apiece of hardstanding on which sheep are fed can hardly be said to be "accommodating" the sheep.

53. Mr. Gibbon submitted that the inspector was entitled to reach the conclusions which she did in paragraph 8 of the decision letter. Accordingly, the court cannot interfere.

54. On this issue, I think that the appellant's appeal is well founded. The words "accommodation" and accommodating" commonly denote some form of habitation. In the context of clause A.1(d)(I) the phrase "works … for accommodating livestock" means works which provide some habitable area or shelter for livestock. A surface onto which sheep may come to feed periodically does not fall within this definition. Furthermore, the hardstanding serve other purposes. For example, the hardstandings are used by livestock lorries when manoeuvring, turning or collecting consignments of sheep.

24. Here we respectfully disagree with the judge's approach which, we are told, was not presaged in submissions. The judge was of course right to say that accommodation commonly denotes some form of habitation. However that is by no means the only use of the word. The word comes from the Latin "accommodatus" meaning "suitable". The Oxford English Dictionary gives many definitions of which the most apt in the present context is "To furnish a person with something requisite or convenient." It cites a variety of sources from Shakespeare's Henry IV "A soldier is better accommodated then with a wife" to Heath's Grocer's Compendium 1869 "Three score and six poor men, pensioners, accommodated with gowns and caps". To this day the phrase "I can accommodate you" means that I can provide you with something suitable. What that suitable something is will depend on the context and whether the person talking is a boarding house keeper or a banker or a shopkeeper. So one must look at the context.
25. In the present context the following matters appear relevant.

1. The erection of a building for livestock is separately dealt with in Clause A.1(d)(ii); this points towards the conclusion that A.1(d)(i) is intended to deal with something else, namely, development which is permitted under Clause A(b) - excavation or engineering operations rather than the provision of a habitation.

2. A "structure" which does not come within the concept of a "building" but which is erected for the purpose of providing habitation for livestock, is separately dealt with in Clause A.1(d)(i); this points towards the conclusion that "works ... for accommodating livestock" is not aimed at the provision of habitation for livestock since a habitation would (almost) always be either a structure or a building.

3. Clause 1(d)(i) proceeds from the premise that a fence could accommodate livestock; this reinforces the conclusion that "accommodating" is not in this context used in the sense of "providing with habitation". Animals do not even figuratively sit on fences.

26. For those reasons we consider that the Inspector was right to proceed on the basis that the limitation in Clause A1(d) of 465 metres applies to all "works" and not merely those which, in the judge's words, "provide some habitable area or shelter for livestock". That concept is covered by other nouns in the clause.
27. In the phrase "works ... for accommodating livestock", "accommodating" is used in its original sense of providing something suitable. If that be right then the Inspector was entitled to conclude that the provision of the hardstanding and what the inspector described as a large area of deposited waste material (but Mr Taylor and the judge both described as a second hard standing) was to be described as the product of engineering or other operations for accommodating livestock. As the Inspector observed, they were both in use as a feeding area for the sheep.
28. The fact that, as the judge points out, the hardstandings are also used by livestock lorries when collecting consignments of sheep does not disentitle the inspector from coming to the view that the construction of these areas amounted to works for accommodating livestock.

Reasonably necessary for the purposes of agriculture within the unit

29. The Inspector took the view that the totality of what had been done exceeded what was reasonably necessary for the purposes of agriculture in the unit. Like the judge we do not consider that she erred.
30. But in any event, if the inspector was right to consider the 465 square metres relevant, as we consider she was, then it is clear that there was a breach of development control in the construction of the hardstandings and indeed the construction of the ways (unless this was sanctioned by Part 9 which we consider hereafter).

The application of Part 9 of the GPDO

31. We note that Part 9 was not referred to in the grounds of appeal to the Secretary of State and first surfaced in Mr Taylor's second set of written submissions. The inspector proceeded on the basis which is not challenged that, before any use could be made of Part 9, there must be a private way with boundaries within which the repairs were carried out. She held that she did not have sufficient evidence to establish that this was the case.
32. The Judge dealt with this in paragraphs 58-60.

58. There is some evidence that a farm track predated the hard track laid by the appellant: see paragraph 5.4 of the appellant's comments on the Council's statement. If this is accepted, then the application of hard core to a pre-existing farm track would appear to fall within Part 9 of Schedule 2 to the GPDO: see the reasoning of the Court of Appeal in Cowen v Secretary of State for the Environment, Transport and the Regions [1999] 3 PLR 108.

59. Nevertheless, I have two reservations in reaching this conclusion. First, it is not clear to me, either from the evidence or from the decision letter, to what extent the hard track follows the line of a pre-existing farm track. Secondly, it is not clear to me whether or not excessive quantities have been applied to the surface of the track. If they have been, those excessive quantities (which have nothing to do with improving the way) should be removed before the works can fall within Part 9 of Schedule 2 to the GPDO.

60. These questions are not addressed by the inspector in her decision letter. These questions must be considered by the inspector when the case is remitted to her.

33. We consider that at this point the judge fell into error. We have been taken through such evidence as was before the inspector indicating the route and boundaries of any earlier way. We are firmly of the view that the inspector on the exiguous material before her was entitled to come to the conclusion that Mr Taylor had not shown that what had been done had been done within the boundaries of a private way.
34. The judge did not ask himself whether the inspector was entitled on the material before her to come to that view. Instead he pointed to various uncertainties. Those uncertainties in my judgment did not disentitle the inspector from coming to the view to which she came.

Did the inspector err in not varying the terms of the enforcement notices

35. This is the issue in this appeal which raises a point of considerable general importance and which led the Secretary of State to appeal to this court.
36. The Inspector's powers are set out in section 174 quoted in paragraph 10 above. In varying any enforcement notice he must ensure that the notice, as varied, itself complies with section 173 and in particular subsections (3) and (4) which read:-

(3) An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes.

(4) Those purposes are –

(a) remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place; or

(b) remedying any injury to amenity which ahs been caused by the breach.

37. The following paragraphs of the judgement indicate the thinking of the Judge.

62. This question is approached from various angles in ground of appeal 4, 5 and 6. Miss Macpherson's underlying argument on this part of the case is a simple one. The Council recognised that the importation and deposit of some waste materials in order to form hard tracks and hardstandings was appropriate. This was necessary for the purposes of agriculture: see paragraph 4.1 of the Council's statement. Likewise the inspector recognised that some of the materials deposited by the appellant were necessary for the purposes of agricultural: see paragraphs 3 and 10 to 12 of the inspector's decision letter.

63. Despite these concessions, both the enforcement notices and the inspector's decision require the entirety of the waste material on site to be removed, When I pressed Mr. Gibbon during argument about this apparent illogically, he submitted that the appellant has only himself to blame. He did not present a properly articulated alternative case or fall-back position as part of his appeal to the inspector. He submitted that paragraph 5.9 of the appellant's comments on the Council's statement did not suffice for this purpose.

64. If the Secretary of State's contentions prevail, the consequence is startling. The appellant must, within a period of 5 months, dig up his hardstandings and tracks and remove the entirety of the material off site. Having done that, he will then be permitted by Part 6 of Schedule 2 to the GPDO, to bring back a significant part of the material and re-lay his tracks and hardstandings, albeit to more modest dimensions. The appellant will be able to obtain advance approval for the size of his hardstandings by applying for a certificate of lawfulness of proposed development pursuant to section 192 of the 1990 Act.

67. The inspector certainly had power to allow part of the waste materials to remain on site: see section 174(2) and section 176(1) of the 1990 Act. Can she be criticised for not exercising that power? It appears from the decision letter that the inspector did not specifically consider this power and whether she should exercise it. In my judgment, that power ought to be exercised. It would be irrational to require the appellant to remove all waste material from the site and then to permit him to bring a significant part of it back again and re-lay it on the site. This course would put the appellant to much needless work and expense and would serve no useful purpose.

38. On the assumption that we are right in our view that the Inspector was entitled to conclude that Mr Taylor was not entitled to bring so much material on to the site but that he was entitled by virtue of Schedule 2 part 6A to bring some of that material on to the site, what should the inspector have done?
39. It is submitted by Miss Macpherson on behalf of Mr Taylor that the Inspector should have declared how much hardstanding was reasonably necessary for the purposes of agriculture within the unit. If this did not exceed 465 square metres, she should have varied the notice so to specify the relevant area and so as to require removal only of the excess. If the amount reasonably necessary for the purposes of agriculture within the unit exceeded 465 square metres she should have varied the notice so as to require the removal only of that which exceeded the 465 square metres. It was accepted by Miss Macpherson that there was no material before the Inspector on which she could have exercised an independent choice as to which area to choose, however Miss Macpherson submitted that the inspector should have asked for further submissions or, at the very least, have considered whether or not to ask for further submissions.
40. On behalf of the Secretary of State it is submitted that this imposes an impossible burden in the Inspector. Mr Taylor had not specified at any time which 465 square metres he would wish to retain if his appeal failed in substance; nor had he indicated that he would wish to make further submissions in this eventuality. This appeal had, at Mr Taylor's choice, not been conducted by way of public inquiry but instead was conducted by way of written representations. The purpose of this was to provide a quick and relatively cheap appeal procedure. It was not incumbent on the Inspector to conduct her own inquiries as to which area might be the most suitable for agriculture. To have done so, while giving the planning authority the right to comment, would have lengthened and complicated the process. It was arguably open to the inspector to take this course but it was well within her discretion not to do so. The judge should have asked himself whether the inspector acted outwith her discretion in not taking this course but he failed to pose the question in this form. The proper course for an appellant who appeals on ground (f) was to specify, without prejudice to his main contentions, his fall-back position and to indicate what variation to the notice he submits should be made.
41. In our judgment the broad approach of the Secretary of State is justified. Appellants should contemplate the possibility that their primary contentions may fail and that those of their opponents may succeed. The very reliance on ground (f) shows that this is the position. If there is a fallback position on which they wish to rely then they should make this clear to the Secretary of State in their submissions. It is not reasonable to come to court, as has happened here, and ask for the case to be remitted to the inspector so that she may ask for further submissions - which could and should have been made in the first place if the landowner wished to advance them. It might well be that the Inspector had the jurisdiction to explore the possibilities further with the parties. But the appellant was professionally advised. The advisers had chosen not to make any submissions in detail under ground (f). Certainly in those circumstances any failure by the Inspector to advert in her decision letter to the possibility of asking for further submissions does not amount to an error of law.
42. The judge's suggestion that the inspector should, presumably without warning and before perhaps coming to a final conclusion as to whether the appeals should be allowed on ground (c), have canvassed this matter at the site visit is in our judgment not appropriate; site visits are not there for the purpose of producing new submissions which might well be contentious. The person chosen to represent the other party would in all probability not be in a position to deal with such points. The weather is often foul, it can happen that the parties are out of earshot of one another and the conditions inappropriate for recording submissions. By and large conversation is rightly discouraged. The function of a site visit is to enable an inspector to make a judgment about submissions which have been made rather than to explore new possibilities. If the latter were to become commonplace it would be a fruitful breeding ground for further disputes.
43. It was also submitted on the Secretary of State's behalf that if a developer breaches the limitations in the GPDO then he has carried out development without planning permission and that therefore in order to remedy the breach it is necessary to remove all that has been done not merely that which breaches the limitations. We do not rest our judgment on this basis and do not consider it necessary to lengthen this judgment by examining whether this submission is well founded.
44. It is worth pointing out, however, that section 177 provides that on the determination of an appeal under section 174 there are a number of options open to the decision maker apart from allowing or dismissing the appeal in its entirety. It would have been open to the Inspector to grant planning permission for part of the development. This might well be the easiest way of meeting the difficulties highlighted by the Judge in his paragraph 64. In some cases it may be that use could be made of the powers in section 191. However, it was not contended before us that the Inspector fell into error in not making use of these powers and we do not suggest that she did. She had not been asked to do so.
45. These appeals are therefore allowed and the Enforcement notices will stand as varied by the Inspector.
ORDER: Appeal allowed with costs of £6,000 below and £9,394.50 agreed. (Order does not form part of approved Judgment)