QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|IN THE MATTERS OF AN APPLICATION UNDER SECTION 288 AND AN APPLICATION TO APPEAL UNDER SECTION 289 OF THE TOWN AND COUNTRY PLANNING ACT 1990 (AS AMENDED)|
|THE QUEEN ON THE APPLICATION OF ROWLAND MARNEY||(CLAIMANT)|
|(1) SECRETARY OF STATE FOR TRANSPORT ENVIRONMENT AND THE REGIONS|
|(2) WAVERLEY BOROUGH COUNCIL||(DEFENDANTS)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR P COPPEL (instructed by the Treasury Solicitor) appeared on behalf of the 1ST DEFENDANT
MR T MORSHEAD (instructed by the Lee Bolton & Lee, London SW1 3JT) appeared on behalf of the 2ND DEFENDANT
Crown Copyright ©
"First, whether the stationing of a residential caravan on this site represents an inappropriate form of development in this Green Belt area and if so whether there are any very special circumstances why the development should nevertheless be allowed. Second the impact of this residential caravan on the character and appearance of the landscape of this part of the AONB."
"the integrity of the water and electricity supply, the security of the birds and site generally, together with fire safety".
The inspector then proceeded to deal with each of those matters. So far as water supply is concerned, he said in paragraph 14:
"I fully accept that birds need a supply of fresh drinking water day and night and that if this was interrupted by frozen pipes etc the hens can rapidly dehydrate and die. Undoubtedly the plastic pipes that are currently laid across the surface of the ground are particularly prone to such problems. However these pipes could easily be buried underground and where they come to the surface they could be lagged so as to prevent freezing. It seems to me therefore that these simple measures would fully overcome the appellant's concerns about this matter."
In paragraph 15 he dealt with the question of electricity supply:
"A failure in the electricity supply could also have dire consequences, particularly in respect of the alarm system for those birds living within the lorry body. As I have already indicated this is a controlled environment and any failure in the ventilation system could result in a significant rise in temperature causing serious welfare problems for the birds. However, it would be possible to install a standby generator, which would ensure power in the event of a failure of the mains supply. Moreover, I see no reason why the present alarm could not be linked to a dwelling off site via a telephone line or radio beam. Indeed paragraph 1 of Annex I points out that normally it will be as convenient for agricultural workers to live in nearby towns or villages as it will be for them to live where they work. The settlements of Haslemere and Milford are only a few minutes drive away and living here the appellant would have easy and quick access to his farm."
Paragraph 16 of the decision letter dealt with issues of security and paragraph 17 with the question of fire risk. The inspector referred to the welfare code for domestic fowl but said:
".... there is no suggestion in the code that in the interest of bird welfare, someone must be present on site 24 hours per day."
"A large caravan here, together with the inevitable domestic paraphernalia would be a most intrusive feature in this area of special landscape and I therefore consider that the development would seriously harm the character and appearance of the AONB."
".... would also seriously harm the character and appearance of this part of the Surrey Hills AONB and thus it would undermine the objectives of local and national planning policies which seek to preserve the natural beauty of the area."
"During my site visit I noted that the lorry trailer had recently been converted into a controlled environment for barn chickens and that as such it was now in use for agricultural purposes. As I have already indicated such uses are not regarded as 'development' for the purposes of the 1990 Act and in these circumstances I share the appellants view that it is excessive for the notice to require that this particular structure/use be removed from the site. I shall therefore alter the notice accordingly. To this extent the ground (f) appeals succeeds."
The requirement for the notice was therefore varied by the inspector so that it reads:
"To remove from the land the mobile home/caravans in use for residential accommodation together with any other items or equipment ancillary to that residential use."
Thus in practical terms, one of the caravans having been removed, the enforcement notice would bite upon the remaining caravan that was used for residential accommodation for the claimant and his family.
(1) Water supply
(2) Rotational system
(3) Electrical power
(5) This ground is no longer pursued.
"It is now my understanding that the lorry body and caravans used for purposes of agriculture are not intended to be subjected to the requirements of the notice. That being the case my only comment is that in respect of one of the residential caravans which could remain on site, in my view, for use only as an office/mess room should the section 78 appeal fail. The steps required to comply with the requirements of the notice are excessive, ie to insist that both residential caravans be removed from the site, when in my view one could remain in a use ancillary to agriculture which would therefore not constitute development for which planning permission would be necessary."
".... in relation to the Claimant's appeal on ground (f), the Claimant submitted that whether or not planning permission was required the caravan could lawfully remain on the land if it was used for the purposes of agriculture. This was because its use would not involve a material change of use and the stationing of it would not constitute 'operational development. It was submitted that this was relevant to the question of impact upon the landscape."
"5. .... The Claimant alleges that the prospect of burying pipes and lagging them was not canvassed at the Inquiry with the Claimant or witnesses called on his behalf. This is incorrect. I recall this matter being discussed at the Inquiry by Mr Burne the Council's agricultural expert. Since reading the Claim Form I have also checked my note of the Inquiry, privilege in which is maintained. From my note I can see that during the cross-examination of Mr Burne, he specifically referred to the issue of lagging and/or burying the pipes underground to protect them from frost.
6. [Ground 2] The Claimant alleges that I failed to take into account a material consideration namely the practicality of burying pipes given that the Claimant proposed to operate a 'rotation system of husbandry'. I do not recall and have no note of it being suggested at the Inquiry by Mr Stimpson or his client, the Claimant, that the Claimant had specifically proposed to operate a 'rotation system of husbandry'. Mr Church did mention in his statement that the barn egg unit was mobile but that was as far as it went. Had the Claimant specifically said in his evidence (or in any of his witnesses' evidence) that he proposed to operate a 'rotation system of husbandry', it would have been my practice to include a reference to that in my note.
7. [Ground 3] The Claimant alleges that I failed to take into account the possibility of component failure in the ventilation system. The issue of a component failure, as well as a power failure, was raised by Mr Stimpson at the Inquiry and although Mr Marney did not specifically address this issue he did say that the alarm was temperature controlled. The argument put forward by the Claimant was that it was possible for the motor driving the ventilation fan(s) to fail but for the electricity supply remained connected. However, the resulting rise in temperature caused by this component failure would still activate the alarm, bearing in mind that it is controlled by heat sensors located in the barn.
8. [Ground 4] .... I do recall Mr Marney making a brief reference to a storm occurring at his previous farm, which had resulted in some difficulties for the hens. However, the main thrust of the Claimant's argument in relation to emergencies of this kind was in respect of fire.
10. [Ground 6] The arguments about alternative lawful uses for Mr Marney's residential caravan were put forward on a hypothetical basis. It was not suggested at the Inquiry before me that Mr Marney intended to convert his residential caravan into a hen house. In fact the main thrust of the argument centred around the lorry trailer and those caravans on the site in use for agricultural purposes. These were the old mobile homes used as hen houses. [The inspector then referred to the letter from the claimant's agents which confirmed that the appeal on grounds (c) and (f) was confined to those caravans.] My attention was also drawn to the fact that Mr Marney's residential caravan was a modern structure in good condition."
"Mr Burne - Cross Examination continued. Water -- Lagging of pipes underground would prevent freezing".
"Since Mr Russon states that it was incorrect for the claimant to say that he was not cross-examined on the point nor were his witnesses examined on it, but gives no details of when and how that examination took place during the enquiry, it was entirely correct for the judge to order the production of the whole of the Inspector's notes, to determine whether his denial of the claim has any basis in fact."
It is right to observe that this is in the context of Buxton LJ noting that Mr Russon had said in paragraph 5 of his witness statement that the allegations set out in paragraph 21 of the claimant's skeleton were incorrect. Buxton LJ said:
"Unless, therefore, the [claimant] is abandoning Mr Russon as a witness on this point fairness requires that the basis of his evidence is properly examined".
"I honestly have no recollection of Mr Burne making the point during my cross-examination of him but I have not retained my note. In any event, Mr Burne was not a witness tendered on behalf of the Claimant. Mr Russon has not identified any point in the Inquiry where the point was put to the Claimant himself or to any witness tendered on his behalf. Thus, contrary to paragraph 5 of Mr Russon's statement I believe that it is correct to state that the prospect of burying pipes and lagging them was not canvassed with the Claimant or witnesses called on his behalf. Indeed, Mr Russon does not appear to have adduced any evidence to the contrary."
I accept that. On the balance of probability the inspector was wrong to say that the claimant's allegation that the prospect of burying pipes and lagging them was not canvassed at the inquiry with the claimant or witnesses called on his behalf was incorrect. However, the claimant was also incorrect in conveying the impression in Mr Church's witness statement that this issue had not been raised at the inquiry at all. The issue was raised. It was raised with Mr Burn, the council's agricultural expert, at some stage during cross-examination.
"Mr Russon states that he does not recall nor does he have a note of it being suggested that a rotation system of husbandry was to be adopted. Page 5 of my note is headed 'b) Stocking Density'. About two-thirds down the page my note reads 'Rotation can be provided by further land within the woodland.' I honestly believe that I raised this point in cross-examination of Mr Burne and in my closing submissions. Further, Mr Burne himself explained that a rotation system had to be used".
There is then a reference to Mr Burne's proof. Mr Burne had said in his proof:
"To prevent the land becoming fowl sick, or to allow it time to recover, the birds should be rotated round the site .... I would suggest that the available land should [be] divided into six paddocks of 0.22 hectare (0.55 acre) each to contain 220 birds with only four paddocks in use at any time. This would give a stocking rate of 880 birds."
Thus it is clear that the rotational system described by Mr Burne does not involve constant movement. It involves dividing the land into a certain number of discrete areas or paddocks and then leaving some of those fallow at any one time. It is clear that Mr Burne, who was advocating a rotation system, was satisfied that water could be provided to the paddocks, and be provided in such a manner as to prevent it from freezing.
"However, these pipes could easily be buried underground and where they come to the surface they could be lagged so as to prevent freezing."
I can see no reason why, upon the sort of rotation system referred to by Mr Burne, the pipe or pipes cannot be buried underground to a certain point and then flexible connections provided to the paddocks as required, those flexible connections being lagged so as to prevent freezing. In truth, this is not the insuperable obstacle to the inspector's commonsense solution to the freezing pipes problem as is contended in ground 2. Whatever was or was not said about the matter by the claimant's witnesses, the issue of rotation was raised by Mr Burne and plainly he did not consider that it prevented proper burying and/or lagging of the pipes.
"A large caravan here, together with the inevitable domestic paraphernalia would be a most intrusive feature in this area of special landscape". (my emphasis)
It is idle to suggest that he had overlooked the distinction between caravans that are simply used for agricultural purposes and caravans used for residential purposes.
"The Defendants shall not by reason of this order be prevented from retaining one single caravan ('the Caravan') on the Land for residential purposes ('the Proviso'), but the Proviso shall be subject to the following conditions",
and conditions are set out. My Lord will recall that at the time that injunction was made there was an appeal before the Secretary of State that has not yet been heard.
"the Proviso shall cease and the Caravan shall be removed ... 14 days after the date on which the Secretary of State's decision in relation to the First Defendant's outstanding appeal be communicated to the First Defendant .... ('the 14 days').