QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF HILDRETHS CHINA & GLASS LIMITED||(CLAIMANT)|
|FIRST SECRETARY OF STATE||(DEFENDANT)|
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 STRACHAN (instructed by TREASURY SOLICITOR) appeared on behalf of the DEFENDANT
Crown Copyright ©
The enforcement notice
"The establishment of uses ancillary to the garden centre in an area beyond that approved by [the original] planning permission, the associated enclosure and the resultant loss of agricultural land is considered to be inappropriate development within the Green Belt, detrimental to the openness of the Green Belt and harmful to the rural character and appearance of the surrounding Chiltern's Area of Outstanding Natural Beauty."
The inspector's decision
"I take the view that there are two main issues in this appeal. First, whether this open storage and display use amounts to inappropriate development in the Green Belt, and if so, whether there are any very special circumstances in this case sufficient to overcome the presumption against such development. Second, the impact of this development on the character and appearance of this part of the AONB [Area of Outstanding Natural Beauty]."
"Nevertheless, it seems clear from the aerial photographs that until recently both Plots A and B were an integral part of the adjoining field. I accept that at one time Plot A was occupied by an agricultural building but this was demolished many years ago and I therefore do not consider that this historical fact is now of any relevance in this case. In my opinion and notwithstanding the presence of the adjoining retail establishment the undeveloped nature of these two parcels of land made a significant contribution to maintaining the openness of this part of the Green Belt. The appellant company's decision to pave over these areas and use them for storage of retail items has resulted in a significant change to the character of this former meadowland and undoubtedly this use has eroded the openness of the Green Belt area. Indeed both plots are contained behind a high close-boarded fence and to all intents and purposes they are now an integral part of the garden centre.
"I note the appellant's argument that these fences form a more logical boundary to the garden centre at this point and that the development must be looked at in the context of the buildings and other retail uses that have been permitted here. However the boundaries of the appellant company's business were firmly established by the planning permission that was granted in 1993 and this specifically excluded Plots A and B.
"Bearing all these matters in mind, it seems to me that this development seriously conflicts with the fundamental aim of Green Belt policy as described in paragraph 1.4 of PPG 2. I therefore conclude that this retail storage use is inappropriate development and as such it must be regarded as being harmful to this part of the Green Belt.
"No claim was made by the appellant company that there were any very special circumstances in this case that might overcome this harm and in this situation I conclude that this development seriously conflicts with both local and national planning policies. I note the argument that planning permission for this development would enable the form, nature and height of the goods and materials stored here could be controlled. However I do not consider that planning conditions of this type would in any way overcome the very strong policy objection in this case."
The grounds of appeal
"Inappropriate development in the Green Belt, and if so, whether there are any very special circumstances ... to overcome the presumption against such a development."
It is also accepted that the inspector was right to say that material changes in land use would be inappropriate developments:
"Unless they maintain openness and do not conflict with the purposes of including land in the Green Belt."
This approach reflects paragraph 3.12 of PPG 2 on Green Belts, which in turn is reflected in almost identical terms both in the Buckinghamshire County Structural Plan and the local plans for the Chiltern District.
"Where a decision is challenged, however, the court will need to inquire, by reference to the decision letter, whether there has been a sufficient consideration of the merits of the case put forward by a party and of any challenge to it."
"This case seems to me to furnish an appropriate opportunity to recall and to emphasise the fact that in the planning field the determinations of the Secretary of State (and the recommendations or decisions of his Inspectors) are directed to what some of the older cases described as a 'tutored audience'. It is in the nature of the planning process that in a case such as this the words and the meaning of the planning guidance documents must have been present to the mind of all the participants; indeed they would have been travelled over time and again. Circumstances of that kind are systematically important to ascertaining whether, in any given instance, the decision-maker's duty to give reasons has been fulfilled."
And in Clarke Homes Limited v Secretary of State for Environment and East Staffordshire DC 66 P&CR 263 at pages 271-272, Sir Thomas Bingham MR said this:
"... the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication."
Mr Strachan submitted that in this case there was no genuine doubt about the decision of the inspector. The straightforward reading of the decision demonstrated that all the factors relied upon by the appellant had been fully considered and the case had been uncompromisingly rejected.
"The undeveloped nature of the two parcels of land made a significant contribution to maintaining the openness of this part of the Green Belt."
This, as Mr Strachan says, is a matter of planning judgment. The inspector concluded that the change of use including the paving-over of the areas had, "undoubtedly ... eroded the openness of the Green Belt area." In paragraph 11, he commented that the development "seriously conflicts" with the fundamental aim of the Green Belt policy. He expressly referred to the significance of the fact that the plots were fenced and to the potential impact on conditions. As to the former, the inspector indicated that this reinforced the erosion of openness since "to all intents and purposes" the plots were now part of the garden centre. As to the latter, he commented that he did not think that the imposition had considered the conditions to overcome the "very strong policy objection" in this case.
"1) Cease the use of the Land for the storage and display of goods and materials and for any other use in connection with the occupation of the garden centre."
"... as the Council has pointed out the horticultural use of these two small parcels of land, particularly if they continued to be enclosed by a high fence would be related to and ancillary to the principal class A1 garden centre use. Thus to permit this type of development would result in a de facto change of use of this land from agriculture to retail purposes. I therefore see no justification to make any alterations to the notice in this respect."
Miss Clayton submits any purchaser, and indeed potentially any prosecutor, who might seek to take action at the breach of the enforcement notice, might take the view that horticultural use of the whole land was forbidden by the terms of the notice. That would not necessarily be correct. I was referred to two authorities in connection with this matter. First, in Duguid v Secretary of State for Environment  82 P&CR page 52, the Court of Appeal held that, "it is not necessary to amend ... an enforcement notice in order to safeguard occupier's lawful user rights." In that case, the enforcement notice read literally appeared to render unlawful the user rights conferred upon the landowner. The Court of Appeal followed an earlier decision of that court in Mansi v Elstree DC  16 P&CR 153 and held that the lawful rights could not be restricted. The court did not, however, determine that it would never be appropriate to amend the enforcement notice. At paragraph 28 of the decision, Ward LJ, with whose judgment Judge LJ and Bell LJ agreed, recognised that it would sometimes be desirable for an enforcement notice to be amended so as to prevent any future argument as to the scope of the rights attached to the land. Mansi itself was such a case.
"Given that existing use rights are to be protected, the question of whether it is necessary to spell these out in the enforcement notice depends on how obvious it is that the enforcement notice can and will be construed so as to protect them, in the context of a criminal prosecution. It needs to be remembered that subsequent landowners are also bound by the notice, and concern over its interpretation may affect dealings with them."