QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|R H FOX||(CLAIMANT)|
|THE FIRST SECRETARY OF STATE||(FIRST DEFENDANT)|
|KETTERING BOROUGH COUNCIL||(SECOND 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 JAMES STRACHAN (instructed by the Treasury Solicitor) appeared on behalf of the FIRST DEFENDANT
Crown Copyright ©
"One of his horses was recently killed after being released by intruders. Therefore he is in the process of acquiring Bowd Field where he may personally look after the horses [so that they] may be kept in relatively close proximity to his house in Wilbarston and the family business at Bottom Farm, Wilbarston (near the Pastures Caravan Site).
"I understand from Mr Green that the keeping of horses on land requires planning permission and therefore this has been included in the present submission.
"My client's proposals for a stabling facility are shown on the submitted drawing. It is intended that the building will be of the 'internal stabling' type, and fitted out internally with loose boxes, feed room and storage areas, etc, as required."
The remainder of the letter deals with questions such as access and perimeter fencing.
"10/7/01. Site inspection - four horses being kept in field, wooden shed/shelter on site, hard core laid to field, widening of access, erection of wooden fencing."
By way of amplification, it was said in paragraph 6.2:
"In July 2001 the field was inspected by Council officers following complaints of unauthorised works taking place. It was found that there were four horses in the field, wooden fencing had been erected to partition the field, a small wooden storage shed had been placed in the field, the field access had been widened and concreted over, and hard core had been laid over an old track and to the northern corner of the field. All of these unauthorised works very closely correlated with those proposed in the withdrawn application for keeping horses."
"On 12 July 200 1 Mr Fox clearly explained in a telephone conversation with the Council's enforcement officer that he had purchased the land, altered the access, laid down hard core, sited a small timber shed, erected fencing, was keeping four horses in the field (including one in foal) and intended to commence the construction of stables; all so that he could relocate his horses chiefly because of his concerns over their security."
"I write with regard to the above and further to our conversation today and I note that you have carried out the following minor works."
The works are then described. The letter continues:
"You state you are keeping four horses in the field at the moment with a foal due soon.
"The use of the field for the keeping of horses does not fall within the legal definition of 'agriculture'. While the minor works you have carried out could have been classed as 'permitted development' - justified as reasonably necessary for the purposes of agriculture - they are not permitted development because they have not been carried out in connection with an agricultural purpose."
The letter went on to say that the normal procedure would be to request a planning application, and made it quite plain that if the application was to be unsuccessful, then the matter would be reported for enforcement action to be considered.
"The appellant argues that the land is not being used for the keeping of horses and that the use of the land is agricultural but with ancillary use for the grazing of one to two horses. However it is clear, from planning applications submitted, that the appellant wished to introduce a mixed use along the lines alleged in the enforcement notice. Indeed in a petition gathered in support of the planning application subject to appeal the appellant is described as a 'local retired businessman' who is seeking support for development which will allow him to 'provide shelter for his horses and livestock'. Moreover, horses seem to have been brought to the site some time prior to the introduction of the sheep."
"From the inspections undertaken by the Council, it is also clear that more than one or two horses were being kept on site, in particular the appellant does not dispute the conversation that he had with a Council officer on 12 July 2001. Having seen the notes from that site visit and conversation it is evident that there were four horses on site at that time, though the appellant also expressed an intention to put in sheep as well."
"In a letter of 11 July 2002, responding to the Council's statement, the appellant suggests that the Council state, at paragraph 6.2 of their statement, that all of the unauthorised works related to 'keeping horses'. However, this is not what they say, nor indeed is it what the enforcement notice alleges. What the Council do say is that 'all of these unauthorised works very closely correlated with those proposed in the withdrawn application for keeping horses'."
"Similarly, whilst paragraph 6.5 of the Council's statement refers to one horse being in foal, as does the Council's letter to the appellant of 12 July 2001, it does not refer to the breeding of horses. There is reference to the use of the appeal site being an extension of the appellant's existing activity of breeding race horses, at paragraph 5.3 of the Council's statement. However, this is not in any event one of the matters specified by the enforcement notice."
"Whilst I have noted the letters from the Veterinary Surgeon and from Astley Grange Stud I do not believe that they provide evidence that the appeal site is not being used for the keeping of horses."
"From the evidence available to me I believe that, as a matter of fact and degree, and on the balance of probabilities, the change of use alleged by the enforcement notice has occurred and that the ground (b) appeal should accordingly fail."
"12. However, there is clear evidence, not least from the conversation of 12 July 2001 between the appellant and a Council officer, that the horses were being brought feed, though it was stated that they would also graze in summer. In addition the note of a site visit undertaken by a Council officer on 29 November 2001 refers to seeing a man with a bucket feeding horses from it. Thus it is clear that the horses were not simply being turned out on the land with a view to feeding them from the land. In Sykes v Secretary of State for the Environment (1981) 42 P & CR 19 Donaldson LJ indicated that:
'There was no difficulty in most cases in recognising whether the land was being used for grazing or for the keeping of non-agricultural horses. It was only if it was being used for the purpose of grazing that no planning permission was required'.
"13. I accept that both the sheep and horses will graze the land. However, it is clear that the horses at least are also supplied with food from elsewhere, and indeed, at the time of my site inspection, there was a feeding manger within the building.
"14. On the basis of the evidence before me it would therefore appear that, as a matter of fact and degree, the current use of the land is not merely agricultural but comprises the mixed use alleged by the enforcement notice. This represents a material change of use for which no planning permission has been granted.
"15. I am reinforced in that view by the evidence as to the type of horses being kept on the land, which supports the impression that the horses are in any event not being kept for agricultural production. Indeed a note from the Parish Council received by the Council on 29 October 2001 refers to the 'valuable race horses that are to be kept on this field', whilst the letter of 2 February 2001, from Philip Evans, submitting one of the two recent planning applications for the site, also refers to race horses."
"The appellant has undertaken significant planting on the site, particularly towards the road frontage, has restored an overgrown pond, and has laid border hedges so as to provide a haven for dormice. These works have clearly been welcomed by many and, from the report prepared by the Farming and Wildlife Group (FWAG), others are proposed. To some extent the FWAG report depends on information from the appellant, and this perhaps was inevitable. However, I have no reason to doubt that sympathetic management of the land is capable of improving, amongst other things, the habitat for some wildlife species.
"28. Nevertheless such works, or steps to improve the condition of the land, should not, in my view, be seen as a justification for inappropriate development. It is suggested that the primary use would remain the grazing of land. However, the mixed use has, in fact, resulted in a significant change in the character of the site. Whilst the designation of the site as a Special Landscape Area may not carry the same weight as a national designation, the area is one of attractive countryside which the development plan policies rightly aim to protect.
"29. There is reference to a crew yard having existed in the position of the appeal building. However, I am told that this became derelict and eventually fell down. On the other hand recent developments associated with the current use of the land have included the creation of an improved access, the hardsurfacing of a track running parallel with the road, and then turning almost 90 degrees so as to continue down to the appeal building, the appeal building itself, an adjacent shed, fencing, and paraphernalia including a mobile stable. In addition some bunding has taken place, in particular close to the building, though this is not referred to in the enforcement notice, altering the natural topography of the site, whilst the 'restored' pond has been fenced off, such fencing including barbed wire.
"30. It is true that both the building, its immediate surroundings, and the pond are some distance away from the road. However, they are close to the line of a public footpath which, the Council indicate, is in regular daily use and which links, in particular, the nearby areas of ancient woodland and the traditional pattern of agricultural land form between the site and Brampton Ash and Stoke Albany.
"31. In my view these developments adversely affect the otherwise largely unspoilt character and appearance of the countryside. This brings them into conflict with Policy 9 of the Local Plan, and with criteria (iv) and (viii) of Local Plan Policy 30, as well running counter to the objectives of Structure Plan policies GS5, AR1 and AR23."
"The development is/would be harmful to the character and appearance of the area and in conflict with development plan policy."
"The statement submitted with the appeal in support of this ground referred to a lack of consultation, but did not explain how this might have affected the steps required by the Notice."
He said that the arguments had been somewhat expanded in the appellant's response to the council's statement, but only to introduce arguments on the planning merits that had been addressed elsewhere in the decision letter. So the Inspector concluded that the steps required did not exceed what was necessary to remedy the breach of planning control. Those steps included the removal of the building and its supporting concrete base, and the removal of the sheds.
"What an inspector in these circumstances has to decide is: what is the purpose - and I stress the word 'the' - for which the land is being used? If horses are simply turned out on to the land with a view to feeding them from the land, clearly the land is being used for grazing. If, however, horses are being kept on the land and are being fed wholly or primarily by other means so that such grazing as they do is completely incidental and perhaps achieved merely because there are no convenient ways of stopping them doing it, then plainly the land is not being used for grazing but merely being used for keeping the animals. On the other hand, of course, if animals are put on to a field with a view to their grazing and are kept there for 24 hours a day, seven days a week over a period, it would not, I would have thought, be possible to say that, as they were being kept there, they were not being grazed. It is quite possible for horses to be both grazed and kept in the same place."
"If the Inspector is minded to allow this appeal, with respect these conditions should not be necessary as confirmed the substantial landscaping and boundary treatment has been carried out. Should the Inspector however feel that reasonable further landscaping be required, the appellant of course would be in agreement to these conditions."
"This letter is to certificate that Mr Fox sends his mare, Foxs Shaddow [sic] to Astley Grange Stud. Here we perform most stud duties on the mare, ie foaling, covering, vet work.
"Foxs Shaddow [sic] is booked to come here to be foaled next month and has done so for the last 3 years.
"If there is any other details you would like me to answer, please telephone myself on the above number."
"I confirm that I have never attended as a Veterinary Surgeon, Mr Fox's horse at Bowd Field, in relation to pregnancy or foaling, and, as I understand the position, all of the breeding aspects of his horses are dealt with by Mr Crane at Astley Grange, Tur Langton."
Thus these letters demonstrated that foaling and/or breeding activities were not taking place on the appeal site.
"Counsel for the appellants submitted that the reporter had misdirected himself in failing to apply his mind to the question of the true intention to develop and in holding that the carrying out of the specified operation itself provided evidence of an intention to proceed. She submitted that the proper test was whether the operation was carried out with the genuine intention to proceed with the development."
"There are, in our view, formidable objections to the proposition advanced by the appellants. There is authority that the work that is alleged to constitute specified operations must be work done pursuant to the planning permission in question. [He cites various authorities for that proposition] The work done must not merely be some development but must be part of the development covered by the planning permission in question ... However, as counsel for the appellants accepted nothing in the wording of section 40(2) of the 1972 Act supports the argument that there is some requirement that the specified operations there defined must be undertaken with some particular intention. In Pioneer Aggregates (supra)  1 AC 132 Lord Scarman emphasised that it is not desirable to try to elaborate or introduce additional requirements into what is already an elaborate statutory code. Although that case was concerned with a different question from the one that arises in the present case, namely whether a planning permission could be held to have been abandoned, the approach is, in our view, relevant. It would be particularly undesirable, in our opinion, to attempt to introduce into the statutory code requirements which were not capable of reasonably precise definition."
"The Inspectors [sic] attention is drawn to the fact that after Section 330 Questionnaire was completed and returned, there was no consultation requested by the Council in accordance with DETR 'Good Practice Guide for Local Planning Authorities July 1997'. The Council state that the development causes 'harm to the visual amenity of the countryside and the SLA', the Inspector is asked to disregard this statement. The development incorporating the farm building (140 metres from the main B669 Road) is well screened and does not have any detrimental effect whatsoever on the visual character and amenity of the open countryside or special landscape area."