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FRIEND And NATIONAL ASSEMBLY FOR WALES NEWPORT BOROUGH COUNCIL [2000] EWHC Admin 332 (18th April, 2000)
Case No: CO/2265/99
IN THE HIGH COURT OF JUSTICE
SITTING AT SWANSEA CROWN COURT
QUEENS BENCH DIVISION
CROWN OFFICE
Royal Courts of Justice
Strand, LONDON, WC2A 2LL
Tuesday 18th April 2000
-----------------------------
NATIONAL ASSEMBLY FOR WALES
NEWPORT BOROUGH COUNCIL
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
-----------------------------
Mr Rupert Warren (instructed by Miss J. Johnstone Rubin Lewis O'Brian, Solicitors, South Wales NP44 1PL for the Applicant)
Mr David Forsdick (instructed by Treasury Solicitors for the 1st Respondent)
2nd Respondent not represented
Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE TURNER:
1. This is a statutory appeal from the decision of an inspector who dismissed three appeals which had been brought before him by the applicant. Those appeals were brought against the service of three enforcement notices served on the applicant by the respondent Borough Council in respect of what was alleged to have been three breaches of planning control by the applicant as the owner of land and buildings at Trinco House, Penhow, Newport. The three notices have throughout been referred to as A, B and C and related to separate aspects of the applicant's conduct on his land. Thus:
1. Notice A, alleged the change of use to a dwelling house without planning permission of a building formerly used for pleasure purposes;
2. Notice B, alleged the erection of a building and lamp standards, without planning permission;
3. Notice C, alleged a change of use of agricultural land to use as residential curtilage.
2. The proceedings had commenced as the result of the service by the Newport Borough Council ('the Council') of three enforcement notices which not only had required discontinuance of the non-permitted use but also reinstatement of the three separate pieces of, what was claimed to have been, unauthorised development. The applicant appealed against all three notices and relied upon grounds set out in s. 174 of the Town and Country Planning Act 1990 by sub-section (2) (a), (c), (d), (e) and (g), although in respect of Notice C only, ground (e) was withdrawn before the appeal was heard. These may be conveniently summarised as (a) permission should be granted, (c) no breach of planning control, (d) enforcement action was time barred (e) ineffective service of the enforcement notices and (g) inadequate time was specified in the enforcement notices for compliance.
3. In one sense, all three notices were interlinked in the following way. The applicant had purchased the property in 1991. The property lies immediately to the West of the settlement of Parc Seymour in countryside which surrounds the settlement and consists of a large detached house and outbuildings. One of the outbuildings which was the subject of notice A was single storey lying to the east of the main house and adjacent to the drive which had been constructed during the period of the applicant's occupation of the property. The structures with which notice B was concerned consisted of another single story outbuilding together with nine lamp standards which had been erected along the line of the drive and hard standing. The single storey building was alleged to have been erected outside the original curtilage of the house. Notice C, in its turn was concerned with the construction of a driveway across what had been agricultural land and which had now been taken into the domestic curtilage of the house.
4. The building the subject of Notice A was some 10m x 7.5m in superficial area the construction of which was completed in 1994. In the building notice at the time of its initial construction, it was described as a single-storey triple garage. The works to which the Council took exception were its conversion into what, it claimed was, a self-contained unit of accommodation which, as a matter of fact, was occupied by the applicant's son. If it was a separate unit of accommodation, it was the case for the Council that no planning permission had been granted for it. It had been the applicant's case at the inquiry that the building had been constructed as a leisure room used in conjunction with the residential unit of Trinco House. At the time of the inquiry, the building was used as an annexe to the main house by the applicant's son who worked anti-social hours. All utility services were provided through the main house and were paid for by the applicant. The case for the council was that the reality of the position was that the building had become a separate unit of accommodation. The inspector concluded that the council's principal contention was correct and that the relationship between the main house and this building was one of convenience rather than dependency, the one upon the other; see paragraph 47 of the Decision Letter. On evidence which it was open to the inspector to accept, he concluded that the development was not time barred; see paragraph 57 of theDecision Letter. The inspector, also concluded that the alternative proposal that permission should be granted, if there had been a breach of planning control, was also refused on the principal basis that such would not be in accordance with the development plan. On this point the inspector went on to hold (paragraph 63 - 65):
(A)lthough the Unitary Development Plan is at an early stage, it is of relevance that Policy H9 of that plan specifically precludes the conversion to residential use of a modern non-residential building in the countryside. This is a material consideration to which I will attach some weight.
The Council was of the opinion that the main house ... enjoys very high levels of privacy and amenity which would be significantly reduced by the appeal building, ... to a level well below that which would be expected for a dwelling of such a size and in such a location. ... the level of amenity afforded to the appeal building would be reduced to unacceptable levels bearing in mind its location near the main drive ... . Although (the applicant) did not agree, on balance I agree with the Council and consider the juxtaposition of the buildings to be less than ideal.
(The applicant) argued that even if the proposal was caught by ... the Structure Plan, then an exception should be made as there is only a low level of impact. I do not agree ... the granting of permission in this case would make it difficult for the Council to resist similar unjustified development in the countryside. ... I find no material considerations which indicate that permission should be granted. ... .
Finally, the inspector found that a period of two months was sufficient to enable the applicant to remove those items identified in the enforcement notice.
5. NOTICE A: It was the decision on this notice, ground (a), which was most strenuously contested before me. First, it was submitted that it was necessary for the inspector clearly to identify whether the impugned development had breached the policies in the development plan and, if he did so, he should provide sufficient reason for his conclusion. The only circumstances in which it was proper for an inspector to have regard to the explanatory memorandum of a structure plan was if the meaning of the policy was not itself clear. Before concluding that there would be harm to residential amenity, it was necessary that he should find at the very least, that there was a risk that such would occur. Paragraph H7 of the adopted Structure Plan of Gwent County Council provides:
The construction of additional dwellings in the open countryside will not normally be permitted except within the context of this policy.
4.36 The general principle is to be maintained that there should be no housing development in the open countryside. Rather, it is to be protected for the benefit of the community as a whole. This policy applies to new building for housing in the open countryside ... .
Paragraph H8 of the Plan provides that
Proposals for the re-use or adaptation of buildings in the open countryside to residential use will be favourably considered provided that all the following conditions are met:-
i)
ii)
iii)
iv) The proposal does not involve the re-use or adaptation of a modern agricultural building or substantial reconstruction of an existing building.
4.37 Some unused buildings in the countryside can be an eyesore. Proposals for the conversion should be subject to the most rigorous examination, particularly in areas of high landscape importance. This policy should not be seen as allowing the rebuilding of a ruin. Such development would amount to the building of a new dwelling in the countryside which would be dealt with under policy H7. The conversion of a recently built structure, particularly modern agricultural buildings, will not be permitted.
The Newport draft Unitary Develpoment Plan provides under the cross heading Conversions in the Countryside ...
3.58 . The conversion of a non-traditionally built structure will not be permitted, and especially any agricultural building constructed in the last 25 years. Similarly, the conversion of a building put up in the last 25 years as ancillary to a dwelling will not be permitted under this policy.
Addressing the problems which arose in the context of the Structure Plan, it was submitted that the inspector had treated the building as if it was a new building rather than the conversion of an existing one. It was submitted that if the inspector did this, then he was reaching a perverse conclusion which should be quashed in accordance with well known principles. Secondly, it was submitted that the finding of the inspector that the building had only been used in its original form for an insignificant period meant that he must at the same time have found that in effect the building was, as a matter of fact, a new operational development which was outside the scope of the enforcement notice in question. Thirdly, in his Decision Letter, the inspector had said (paragraph 58 et seq.):
58. (The) building was erected comparatively recently and there is no evidence that it was ever used for its original stated purpose. Moreover, it would appear that it was only available for use as a leisure building, ... for a very limited period before being used for residential accommodation. I consider that what has taken place is tantamount to the provision of a new building in the countryside.
59. ... From the evidence presented and in the light of the development plan and emerging policy, I consider that the main issue is whether the proposal would be justified bearing in mind the restrictions on residential development in the countryside.
60. ... I have noted that the principle embodied (in the structure plan H7) is that the construction of additional dwellings ... will not normally be permitted. ... . Given ... what has, in effect, taken place, it would not be unreasonable to conclude that the present proposal would be contrary to the spirit of this policy.
61.
62. In the case of a structure plan, I would normally examine the wording of the policy itself when considering ... Section 54A. However, bearing in mind the case of Cooper v. Secretary of State for the Environment and Harlow DC ([1996] JPL 945), I consider that it is open to the decision maker to take account of the explanatory text where the full text of the policy wording is not clear. That is the situation here as it would, given the constraints imposed by policy H7, be illogical to preclude the re-use ... of a modern agricultural building but not the conversion of some other recently built structure. The clarification given in the text which states that the conversion of a recently built structure will not normally be permitted.
63. Overall, I have concluded that the proposal would not be in accordance with the development plan. Moreover, although the Unitary Development Plan is at an early stage, it is of relevance that Policy H9 ... specifically precludes the conversion to residential use of a modern non-residential building in the countryside. This is a material consideration to which I will attach some weight.
64. The Council was of the opinion that the main house .. enjoys very high levels of privacy and amenity which would be significantly reduced by the appeal building, with its main windows facing the house, to a level below which would be expected for a dwelling of such a size and in such a location. Also the level of amenity of the appeal building would be reduced to unacceptable levels bearing in mind its location near the main drive and, in consequence, potential problems of noise and disturbance ... . Although (the applicant) did not agree, on balance I incline to the view of the Council and consider the juxtaposition of the buildings to be less than ideal.
65. ... I do not agree (that an exception be made to the provisions of policy H8) and concur with the Council that the granting of permission in this case would make it difficult for (them) to resist similar unjustified development in the countryside. In my view, the proposal conflicts with the intentions of the development plan ... .
6. In developing his submissions, counsel for the applicant referred to the case of Cooper (above) where, at p954, the deputy judge accepted the proposition to the effect that, for the purposes of s54A of the Act of 1990, the relevant part of the "development plan" was the policy and not the text which preceded it. He went on to hold that when considering the application of a structure plan policy, the decision-maker should first consider the ordinary and natural meaning of the policy itself, but it would be contrary to the scheme of the Act for material not forming part of the plan to prevail over the statutory (s54A) policy. So, here, it was submitted that the inspector had done just what the deputy judge had said should not be done; see Cooper. This submission was the premise to the next which was that there was nothing in the policy in the present case which precluded the re-use of modern non agricultural buildings. In terms of the structure plan, it was submitted that the inspector had preferred the explanatory note 3.58 to H8 itself. This was impermissible because the language of H8 was plain; it was not illogical to allow the conversion of non-agricultural buildings, because of reasons special to agricultural buildings which justified their different treatment for planning purposes. It was submitted that thus far it could be shown that the inspector had either misunderstood or misapplied the decision in Cooper.
7. The inspector had erred in concluding that the words in H8 were not clear. He had only been enabled to come to that conclusion, it was said, because he had imported into his reasoning process words which are to be found in the explanatory notes and not in the policy itself. This approach was illogical because of the fact that, although there are restraints on the building of new residential units in the countryside (policy H7), different considerations apply to the conversion of agricultural buildings which, by definition, already exist. There is nothing illogical about treating conversion of buildings other than agricultural ones on their merits. Lastly, on the point in regard to residential amenity, it was submitted that the test which the inspector had applied to the harm which was caused to the residential amenity of the main house, which was that the effect of the new building was "less than ideal" was insufficient to constitute one which was harmful. The reasoning of the inspector was insufficient.
8. It was then submitted that the point with which the inspector had dealt at paragraph 65 of the Decision Letter, the difficulty which the Council would encounter in resisting other unjustified development in the countryside, showed that he had misapplied the relevant authority in this area of the law. Reliance was placed on the decision in Poundstretcher Ltd v. Secretary of State for the Environment and Another [1988] 3 PLR 69 in which it was held that a generalised fear of creating a planning precedent cannot be a material consideration in refusing to grant planning permission. In particular, reliance was placed on the passage at p74 of that case where the deputy judge said
(I)n the present case, the inspector did rely on precedent. I accept ... (the ) proposition that where precedent is relied on, mere fear or generalised concern is not enough. There must be evidence in one form or another for the reliance on precedent. In some cases facts speak for themselves. ... . Another clear example is sporadic development in the countryside.
In the present case, there was no sporadic development in the countryside, since what had happened, on this analysis, was not new sporadic construction.
9. It was next submitted that the inspector had applied the wrong test when coming to his decision at paragraph 64 of the Decision Letter, the point being that in concluding that the relationship between the main house and the appeal building was less than ideal, he had not met the test that the one should be materially harmful to the other. If he meant something other than 'less than ideal' then he had failed to express himself adequately and left his decision open to a reasons challenge.
10. For the first respondent, it was submitted that the planning history in relation to the appeal building was a necessary starting point for a proper understanding of the Decision Letter. Nevertheless, proceeding under rights conferred by the General Permitted Development Order(GPDO), the applicant erected a building a "leisure/snooker room" which was certified as complete for Building Regulation purposes in 1994. Paragraph 58 of the Decision Letter records the facts that the appeal building was never used for its original purpose and was only available for use as a leisure building before being used for its present residential purpose "for a very limited period". Given that the appeal building had been a separate dwelling since at latest 1994, it was submitted that it was open to him to find, as he did, that what had taken place was "tantamount to the provision of a new dwelling in the countryside"; Decision Letter paragraph 58.
11. In the light of the above considerations, and given the strong policy presumption against the provision of new buildings in the countryside, the question then for the inspector was whether or not planning permission for a change to independent residential use ought to be granted. It was submitted that the question so phrased was only capable of one sensible answer. There could be no question that construction of a bungalow in the grounds of Trinco House would have infringed Policy H7. So, it was submitted that the real issue became whether the policy which covers conversions of existing buildings should be interpreted so as to permit the H7 policy to be circumvented, as happened here, by the construction of a building under GPDO rights which shortly afterwards was converted into a dwelling which that policy would not have countenanced. By invoking the policy considerations inherent in policy H8, it was submitted that the inspector was simply avoiding the absurdity of the circumvention just mentioned. These submissions led to the proposition that there is a potential lacuna between H7 and H8 which, if both are strictly construed, would permit what had happened in the present case but preclude the re-use or adaptation of a modern agricultural building; see Decision Letter paragraph 62. In support of this approach to the interpretation of planning policies, in general, it was submitted that assistance was to be gained from the case Northavon District Council v. Secretary of State for the Environment [1993] JPL 761 where Auld J (as he then was) said
Whether proposed development met the description was in most cases likely to be a matter of fact or degree and planning judgment. He said 'in most cases' because it was for the court to say as a matter of law whether the meaning given by the Secretary of State or one of his officers or inspectors to the expression when applying it was outside the ordinary and natrual meaning of the words in their context. The test to be applied by the court was that it should only interfere when the decision-maker's interpretation was perverse in that he has given to the words in their context a meaning that they could not possibly have or restricted their meaning in a way that the breadth of the terms could not possibly justify. ... . The question for the court was whether the inspector's interpretation was not within the ordinary and natural meaning of the words in their context and was wrong in law, or, put another way was Wednesbury or Pulhofer unreasonnable or ... resulted from his failure to have regard to a material consideration.
It was moreover not right to search for the meaning and objective of this policy by considering it in isolation from its context, which was a package of policies, both general and detailed in their intended application.
This passage was cited by the deputy judge in Cooper (above) and at p952 he continued
Planning policies were ... utterly distinct from statutes or contracts. They were not intended to provide a detailed framework governing the relation between individuals, or between public authorities and the individual. Rather, they were guidelines or principles - expressly open to review and amendment from time to time - intended to guide the decision-maker in the making of an essentially discretionary decision. For the most part their understanding involved the assessment of ordinary words, often with an element of planning judgment.
These citations were wholly consistent with the observations of Lord Bridge of Harwich in South Lakeland DC v. Secretary of State for the Environment [1992] 2 AC 141 at p148, where he said
Excessive legalistic textual criticism of the planning decision letters is something the courts should strongly discourage.
What had happened in the present case was, in reality, no more than a device or attempt at the circumvention of H7. What the inspector had concluded was that permission should not be granted for a change to an independent residential use of a recently constructed building which had never been used, in more than a token sense, for its originally declared purpose. Applying the principles which can be derived from the above cases, there was no ambiguity in the inspector's use of the words 'tantamount' or 'spirit of the policy' where they appear in paragraphs 58 and 60 of the Decision Letter.
12. Turning to the point which the applicant sought to make on the finding of the harmful effect of the use of the appeal building on the main house (Decision Letter paragraph 64), it was submitted that at best the challenge was a matter of semantics while at worst it was a matter of misreading what the inspector had said. He had clearly accepted the view of the Council on this point which was to the effect that "the main house ... enjoys very high levels of privacy and amenity which would be significantly reduced by the appeal building ... to a level which should not be expected for a dwelling of such a size and in such a location". Such a finding was inconsistent with any other finding, although not as clearly expressed as elsewhere in the Decision Letter, than one of 'materially harmful'.
13. Lastly, in relation to this appeal building, the Poundstretcher point falls to be considered. The inspector dealt with the point in paragraph 65 of the Decision Letter. Given that he had found a circumvention of planning control in regard to this building, he would have undermined the effect of H7 if he had not also considered the precedent effect which a decision favourable to the applicant would have had. In any event, it was submitted that the exceptions identified in the passages in Poundstretcher are plainly applicable to the circumstances of the present case.
14. NOTICES B AND C: The building referred to in the first of these notices is a single storey timber building and the lamp standards mainly situated along the drive although three of them lie to the west of this. The hard surfaces covered by Notice C include a hard tennis court, paths and the drive. There was a dispute about the extent of the curtilage of the original house. The inspector rejected the applicant's contentions about this and concluded ( Decision Letter paragraph 25) that:
On the ground, the original curtilage is clearly identifiable, corresponding closely with that shown on the Council's aerial photograph . At that time the land to the south of the original curtilage had the appearance of being part of a field ... the land is essentially different in character and appearance to the land surrounding the house.
27. At the inquiry, the Council drew attention to the plans submitted in connection with the landscaping scheme .. I find no evidence to suggest that permission has ever been granted for any change in the use of the land to the south of what I regard as the curtilage. Any change that has taken place has occurred well within a period of these notices being issued.
69. ... . The building and lamp standards ... lie outside the original curtilage of Trinco House on land which formerly formed part of the surrounding countryside. As previously noted any change that has taken place has occurred well within the period of 10 years prior to the issue of the notice.
70. ... I agree with the Council that the development has been carried out on what was agricultural land adjoining the curtilage of (the house) but not forming part of it, I do not accept that the works that have been carried out are permitted under Class E. Neither do they qualify as permitted development under any of the other classes of the (GPDO). The matters that have occurred do constitute a breach of planning control ... .
15. The inspector then went on to make a finding which is the subject of legal challenge in connection with both of these notices. He did so relying on a submission which had been made to him on behalf of the Council in reliance on the case of Murfitt v. Secretary of State for the Environment [1980] P & CR 254. The inspector said at paragraph 72 of the Decision Letter:
The Council considered that that case is authority for the fact that it is legally possible to enforce against operational development where it is part and parcel of the change of use being enforced against, even if the operational development was carried more than 4 years ago.
75. ... I am of the opinion following the Murfitt case, none of the lamp standards are immune from enforcement action, Notice C relating to the change of use, was issued at the same time as Notice B and I regard the lamp standards to be ancillary operational works carried out in connection with and part and parcel of the unauthorised use as residential curtilage. There is no evidence to suggest that the change of use of agricultural ... to use ... as residential curtilage occurred more than 10 years before the issue of the notices.
The applicant submitted that, in these passages, the inspector had misapplied the Murfitt case since Notice B related to operational development which had taken place more than 4 years before the date of the notice. It was, accordingly, time barred. Notice C which relates to the drive was also bad in that it related to operational development which had, again, taken place more than 4 years earlier. As a fact, it was submitted that the drive was already serving the main house in 1991. It could not, therefore, have been ancillary to or "part and parcel" of the change of use of the surrounding land. The inspector had dealt with this on the basis that although the line of the road was in place in 1991, its surfacing was different then but this did not assist in relation to the question whether the drive was, in its then state, being used for the purpose of gaining access to the main house.
16. For the Secretary of State it was submitted that the inspector had been entitled to find that the erection of the lamp standards constituted ancillary operational works in connection with the overall change of use of the land. Such a change, it was submitted was not immune from enforcement since the 10 year rule applied. Likewise he had been entitled to find that the hard surfaced areas were a part of the same overall change of use. The inspector's finding was that the drive had become a part of the domestic curtilage. The submission was made that the track and the lamp standards were operational development which had been taken within the domestic curtilage as the result of the change of use. The reality of the position was that what had previously been an unmade track which had passed through agricultural land had become a made up track with hardstanding, tennis court and lamp standards running through a residential curtilage.
17. It was submitted that Notices B and C could be read together for the reasons that not only had the applicant so treated them but also the inspector's conclusions linked the lamp standards, drive and curtilage as one breach of planning control of which all the lamp standards were part and parcel of the same breach. It did not matter that two separate notices had been issued since taken together it was plain what the Council had set out to achieve and the applicant was in no way surprised or disadvantaged as a result; see Millen v. Secretary of State for the Environment [1995] JPL 735. Paragraphs 8 to 11 of the Decision Letter showed that these matters had been adequately debated during the course of the inquiry.
18. The final point concerns the question whether or not permission for the development should have been granted. The inspector found (paragraph 86 of the Decision Letter) that
The extended curtilage and domestic paraphenalia erode the rural character of the area and the attractiveness of the landscape. ... I am of the opinion that the proposal would be in conflict with well understood aims and policy regarding the protection of the countryside and landscape. The impact has been adverse and unacceptable.
As an overview of the whole case there was little to add by way of submission to this finding.
19. Conclusion: The essence of the inspector's findings were matters of fact and sensible interpretation of the structure plan. For the applicant to succeed in the present challenge he would not only have to rely, impermissibly as I would hold, on a legalistic as well as unrealistic interpretation of the elements of H7 and H8. The mischief at which each of these policies, both separately and together, are aimed is clear enough. Equally, the inspector was entitled to use his common sense in order to decide what were in, truth, the applicant's tactics in proceeding, under the GPDO and then within a short period changing the use of the building in a manner which, had it been the subject of an initial application for permission, would surely and correctly have been rejected. It is this feature of the case which, in my judgment, entitled him to hold that what the applicant had done was 'tantamount to the provision of a new dwelling in the countryside'. Such a development was, indeed, 'contrary to the spirit of (the) policy' in H7. Moreover, on the material before him, and in the Decision Letter, the inspector not only found that there was harm to the residential amenity of Trinco House by reason of the construction of the new dwelling, but also his findings of the nature of the harm are sufficiently clearly expressed in paragraph 64 of the Decision Letter. In my judgment, the reasons why he came to the conclusion which he did could scarcely have been expressed more clearly, albeit, had he expressed himself more forcefully, the applicant might have felt some inhibition from pursuing this hopeless ground of challenge.
20. Given what the inspector had found were the realities of the position in relation to the construction of the new building, it was inevitable that he should have found that to permit such development would have rendered it hard for the Council to have resisted any similar appeals which might be made in the future. Not only, in my judgment, is this the obvious answer to the point which the applicant sought to deploy in regard to Poundstretcher, but also the facts as to the merits of the inspector's decision do speak for themselves. Here was an unpermitted development in the countryside which had proceeded largely by a circuitous and tactically devised route as if by such means the essentials of the declared policy could thus be overcome. It was, if not sporadic development in the countryside, the next thing to it. As such I entertain no doubt but that the applicant has failed to make good his point that what was happening was the "use of a pre-existing building for a different purpose", that was a barely disguised and legally disingenuous submission which was at odds with the true position.
21. With regard to the challenges to Notices B and C, I have struggled to understand the basis upon which, what are thinly disguised challenges to facts which it was open to the inspector to find, have become matters which are susceptible to challenge in these proceedings. The findings of the inspector clearly envisaged that, in the period since 1991, there had been a change or changes of use of different paerts of the property which can most conveniently be described as Trinco House. Thus, the hardstanding, the tennis court, the drive, the curtilage and the gardener's shed to identify but some of those changes. It is, in my judgment, clear beyond argument that the inspector regarded what had happened as one scheme which might properly be described as the "sub-urbanisation" of the property, although it was carried out in different stages and did involve a significant change of use to which the operational aspects of the development were but ancillary or of which they were "part and parcel". Once again, the applicant through the submissions made on his behalf has sought to divide up the relevant parts of the Decision Letter as though it was made up of a number of watertight compartments. Such an approach falls foul of the proper approach as exemplified in Northavon DC and Cooper (above). There was, in my judgment no misapplication of the later decision in Millen (above). The challenges to these two notices also failed.
22. For all the above reasons this application failed and was dismissed at the conclusion of the oral hearing.
MR JUSTICE TURNER: Miss Johnstone, Mr Forsdick. I regret that the copy of the judgment which was sent to you in draft, by reason of incompatibility between clerks' computers and judges' computers, did not contain an important addition in paragraph 21 of the judgment at the first sentence.
MR FORSDICK: My Lord, in fact my instructing solicitors and I myself did not receive a copy of the draft judgment in any event.
MR JUSTICE TURNER: I cannot understand why that is. Have you had an opportunity of reading it?
MR FORSDICK: I have just skimmed rather than read it.
MR JUSTICE TURNER: Is the most satisfactory thing for me to adjourn for a quarter of an hour to enable you to do that?
MR FORSDICK: I think it is, especially as my learned friend has an application for permission to appeal. In those circumstances, it is obviously right that she has an opportunity to read the judgment.
MR JUSTICE TURNER: I added a word at the end of the last sentence of paragraph 20 of the judgment, to make it sound a little less harsh that it originally was. It is the word that appears before the word "disingenuous". Shall I say quarter of an hour?
MR FORSDICK: Yes, my Lord.
(Short adjournment)
MR FORSDICK: We were grateful for the time. I do apologise, but it appears it was a fault in my Chambers that I had not had the opportunity----
MR JUSTICE TURNER: It does sound a bit like it.
MR FORSDICK: At the end of the last hearing, my Lord stressed on the question of costs.
MR JUSTICE TURNER: Can we deal with first things first. I ought formally to hand the judgment down, unless, having read it, you have noticed any errors or omissions?
MISS JOHNSTONE: No, my Lord.
MR JUSTICE TURNER: I formerly hand that judgment down.
MR FORSDICK: I am grateful. My Lord has already made an order for costs against the claimants in the sum that was assessed at that hearing last time round. My Lord, for the purposes of the Practice Direction this counts as new----
MR JUSTICE TURNER: I have no recollection of dealing with the question of costs at all.
MR FORSDICK: There was the dispute as to whether or not the number of hours that my instructing solicitor had spent on the papers was a reasonable amount of time to spend, and my Lord ordered that----
MR JUSTICE TURNER: I will take your word for it. What did I order?
MR FORSDICK: A total of £4,680. My Lord, there then remains the question of the costs of today's attendance.
MR JUSTICE TURNER: Is that in issue?
MR FORSDICK: It is not. A further order is sought in the sum of £188.
MR JUSTICE TURNER: What is the total sum?
MR FORSDICK: £4,868.
MR JUSTICE TURNER: Do you make any observations about that?
MISS JOHNSTONE: I have no objection, my Lord.
MR JUSTICE TURNER: Very well. I formally assess the costs in the sum of £4,868.
MISS JOHNSTONE: My Lord, is it a convenient moment to deal with the matter of an application for leave to appeal?
MR JUSTICE TURNER: I think it would be inconvenient if you left it to any other moment.
MISS JOHNSTONE: I am grateful, my Lord. On a reading of your Lordship's draft judgment and the reamended version, I have two submissions to make to your Lordship as to arguments I would seek to argue in the Court of Appeal. The first being the interpretation given of section 54A of the Town and Country Planning Act. Under that section, as your Lordship is aware, the predominance of the plan is paramount.
MR JUSTICE TURNER: Not paramount, but indicative.
MISS JOHNSTONE: Indeed. Holder and Cooper were cases which were both referred to in the hearing in front of your Lordship. In fact, in Cooper in particular, it was stated that text not forming part of the policies in the plan cannot prevail over policies themselves and, again, that is something which, under section 54A----
MR JUSTICE TURNER: In this case it was a matter of the interpretation of what H7 and H8 meant, taking a broad purposive view.
MISS JOHNSTONE: Indeed, my Lord. However, my submission is that taking a view of those policies, it is clear on their face what they mean. In fact that was acknowledged by the Inspector at paragraph 62 of his decision letter when he stated that on a strict reading of the policies, the Applicant's development would actually be permitted in real terms.
I would submit that that is correct. That represents the position and the ordinary, natural meanings of those policies as is encouraged in Cooper.
The Inspector clearly believed that a lacuna had been created by policies H7 and H8 when taken as strict reading and attempted to defeat that by utilising the explanatory test, which if found in paragraph 4.37 of the structure plan. This is clear from the reasoning that he gave. My submission, however, is, that it is not illogical to treat the conversion or the change of use of those buildings other than agricultural buildings on their merits. There is indeed a strong policy presumption against agricultural buildings being converted in the countryside, as expressed in PPG 7. However, government guidance is silent as to the question of conversion and the use of non-agricultural buildings. In my submission, it is not illogical that this might be the position under the structure plan.
My primary submission is therefore to utilise the explanatory test to alter the meaning of the policies which are clear and unambiguous on their face undermines section 54 of the Town and Country Planning Act and the planning system itself. This is therefore a matter of general legal principles and really has quite profound, in the case of planning law, implications if this interpretation is permitted.
My second submission on this matter regards Notice B which, as your Lordship is aware, involves the erection of a single storey wooden building and lamp standards without planning permission. My Lord, under section 177(1)(b) of the Town and Country Planning Act, there is an absolute bar to taking enforcement action after the end of the four year period which begins to run when the development is substantially completed. Operational development, as your Lordship is aware, is defined as "building, engineering, mining or other operations in, on, over or under land". In my submission, the development here does indeed qualify as operational development. I would argue that Notice B ought to be taken separately from Notice C. As paragraph 14 of your Lordship's judgment, it is observed that in fact the Inspector and your Lordship took the approach that both Notices B and C ought to be read together and seen together, in effect and that they created.
My Lord, I would argue that Notice B should be read by itself. It is a separate notice from Notice C and should be treated as such and, therefore, is time barred in reality, having regard to the----
MR JUSTICE TURNER: I understand the point. That was the point that was debated in front of me.
MISS JOHNSTONE: I understand that, my Lord. I have just had the benefit of reading your Lordship's amendments to his judgment. In fact, I would submit that both Northavon and Cooper -- in that case it does not say that notices ought to be read together, necessarily, if there are more than one. I would argue that the effect of both of those cases does not affect my proposition, which is that Notice B stands as time barred. Secondly, in Millen, the Applicant is disadvantaged, if it is read as such, where B and C are taken together, because if Notice B is taken separately, then it is time barred and, therefore, does not apply in this case.
MR JUSTICE TURNER: Thank you.
MISS JOHNSTONE: My Lord, that is all I say.
MR FORSDICK: It is not the practice of the Secretary of State to make submissions on applications for permission to appeal, save that we clearly would object, but we leave it in your Lordship's hands, unless I can assist your Lordship?
MR JUSTICE TURNER: It may not be the Secretary of State's practice, but if invited to make submissions, he should do so and I do.
MR FORSDICK: My Lord, the position in relation to the first appeal, which is effectively the really substantive issue in this case, was Notice A. My Lord, the position there is that your Lordship and the Inspector took what is a broad purposive approach to avoid a deliberate and ill conceived----
MR JUSTICE TURNER: We saw through it.
MR FORSDICK: Exactly, my Lord, and that was the whole basis of my submission, the Secretary of State's correspondence and the Inspector's decision letter. H7 and H8 in themselves, if completely and strictly construed, would allow a gaping gap in the planning framework. My Lord, has seen through it and has not allowed that to go ahead.
In relation to Notices B and C I cannot add to anything I submitted before your Lordship in Swansea a few weeks ago. The whole thrust of those notices is clear.
The impact of these notices is clear and it relates to a change of use. If one does that----
MR JUSTICE TURNER: A change of use, in respect of which operational development was merely part and parcel.
MR FORSDICK: Exactly, and I took your Lordship to authority that established those propositions. I should say, with respect to my learned friend, those authorities are well established, in the sense that they have been referred to and been followed by the court on numerous occasions.
MR JUSTICE TURNER: Again, it is a question of seeing through it.
MR FORSDICK: Exactly, my Lord. It is a question, at the end of the day, of going one stage back and saying, 'what is the Inspector required to do'? He is required to allow the people to whom this decision letter is addressed to understand the thrust of his decision and that, in my respectful submission, is what he has done here. Nothing in my learned friend's submissions alters the point that these are pure legal sophisties to allow circumvention which drives a coach and horses through the Act.
MR JUSTICE TURNER: I agree. Is there anything you wish to add?
MISS JOHNSTONE: No, my Lord.
MR JUSTICE TURNER: Thank you very much. Leave to appeal is refused on both grounds.
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