England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		6th November 2006

1. MR JUSTICE SULLIVAN: This is an appeal under section 289 of the Town and Country Planning Act 1990 ("the Act") against a decision by an Inspector appointed by the first respondent, dismissing the appellant's appeal against an enforcement notice issued by the second respondent in respect of building and associated works in part of a field to the north of the road at Birdlip Hill, Birdlip, Gloucestershire.
2. The second respondent issued the enforcement notice on 27th May 2005. The breach of planning control alleged in the notice was:

"Without planning permission --

(a) the construction of a building in the position shown coloured blue on the attached plan;

(b) the excavation of an earth bank and the formation of a hard surface in the approximate position crosshatched black on the attached plan;

(c) the construction of a retaining wall in the approximate position indicated by a green line on the attached plan."

In summary, the requirements of the notice were to demolish the building and the retaining wall and to regrade the earth bank and reinstate all the land to its condition before the unauthorised development took place.

3. The appellant appealed against the notice on grounds (c) and (g) in section 174(2) of the Act. The appeal was dealt with by way of written representations and, following an unaccompanied site visit on 14th November 2005, the Inspector dismissed the appeal and upheld the enforcement notice in a decision letter dated 13th December 2005. In that decision letter, the Inspector also considered the deemed application for planning permission for the unauthorised development but refused permission upon the basis that the building had significantly harmed the natural beauty of the Area of Outstanding Natural Beauty in which the site is included. There is no challenge in these proceedings to that decision, nor is there any challenge to the Inspector's rejection of the appeal under ground (g). The challenge is to the Inspector's rejection of the ground (c) appeal in respect of the building.
4. In paragraph 3 of the decision letter, the Inspector noted that none of the appellants' documents had referred to the retaining wall or the hard surface or the notice's requirements in relation to them, so the Inspector determined the appeal on the basis that the requirements to demolish the wall and to restore the land (with the exception of the area occupied by the building) to its previous condition as a grass slope were not being contested. It is perhaps an open question as to whether the Inspector should have considered the building in isolation under ground (c) as opposed to considering whether or not the whole of the development -- namely the construction of the building, the excavation of the earth bank, the formation of the hard surface and the construction of the retaining wall -- were unauthorised, but since in the event, if error there was, it was in the claimant's favour and made no difference to the outcome of the appeal, there is no need to consider that issue further in this judgment.
5. The building which the appellant had erected is described in paragraphs 5 to 7 of the decision letter:

"(5) The appeal site is elevated above the land to its west. It consists of a level platform recently excavated into the natural hillside, which sloped from the south-east down to the north and north-west; there is a retaining wall some 1 to 1.5m high on the southern and eastern edges of the platform. In the platform's north-western section is a large modern building, essentially built round a metal frame and with a concrete slab floor. It has cavity walls, with an outer skin of coursed artificial stone and an inner skin of concrete blocks. The roof is of corrugated asbestos sheets. The building measures some 14m long and 8.3m wide and at its front it is about 3.5m high to the eaves and 4.8m to the ridge. The land's surface rises up next to the southern wall, so that at the rear the eaves are about 2m above the surface. The southern retaining wall is about 4.3m from the building and the distance to the eastern is some 10m. The areas between the retaining walls and the building are surfaced in hardcore or similar material. On the north-easter corner, behind the building, I saw a small pile of fence posts, netting and drainage pipes. The forecourt area, some 10m deep, in front of the building was unsurfaced.

(6) There is a metal roller-shuttered door, 3.1m wide and 2.7m tall, in the northern part of the building's front elevation; next to it is an arched window. Access is also possible through a metal pedestrian door in the western section of the southern elevation. To its east is a barred window, which I saw was blocked by sheeting on its inside. Inside the building internal blockwork walls separate off two compartments in the south-western corner. One housed a chemical toilet and the other, lit by the window on the front elevation, seemed to be a mess room and contained a table, three chairs, cupboards, kitchen units and a gas-powered stove. Just outside this room, in the main part of the building, was a fridge.

(7) In the north-eastern corner of the main part of the building was a large lockable metal storage container with a small tracked loader within it. Inside the container were also sets of shelves with various items of equipment, and a large toolbox. There was a ladder on the container's top. Just inside the roller shutter door I saw an 8 tonne tracked digger and next to it a site dumper; the digger was moved outside during my visit. There were several workbenches of varying degrees of permanence on the southern wall under the barred window and elsewhere on the concrete floor. Behind the dumper, and next to the storage container, was a large pile of timber, and near the building's rear wall were several large pipes, lengths of timber and a lawn mower. Apart from a pedestrian door and a few window units I saw no other building materials."

6. The Inspector then dealt with the planning history of the land. In summary, outline planning permission had been obtained in 1992 for 10 log cabin units, proprietor's accommodation, a leisure building and a new access on land outside, and to the west of, the current appeal site. That permission had been the subject of several renewals and reserved matters were approved in 1999 and September 2004.
7. The appellant contended in his representations to the Inspector that work began on the site in about October 2004, and the Inspector had photographs that had been supplied by local residents which showed that substantial earth works to accommodate the appeal building took place in or before December 2004. In January 2005 the claimant had sent a drawing of a "proposed temporary building" to the Council and the Inspector observed:

"It bears little resemblance to that actually built, being narrower and having an agricultural appearance, with timber-clad walls above a concrete blockwork plinth."

The Inspector noted that a photograph showed that the building had been completed by July 2005 and the Council's statement, which had been sent on 24th August 2005, had said that at that time no work had begun on any log cabin. By the time the Inspector inspected the site in November 2005, he saw that one of the log cabins was under construction:

"Its walls were up, windows glazed and the roof structure built but not yet clad. I could hear construction work being carried on inside."

8. Against that background, the Inspector turned to the appeal under ground (c) and said in paragraph 11:

"Under this ground [the appellant] claims that there is no breach because the building is intended to be a temporary one, to store materials and equipment securely during the period of the development on the adjoining land. He says that it will be removed once the development is completed."

In paragraph 12, the Inspector said this:

"The Town and Country Planning (General Permitted Development) Order 1995 (GPDO) identifies those developments that are defined as 'permitted development' and so can be carried out without the submission of the specific planning application. Under the heading 'Temporary Buildings and Uses', Class A of Part 4 of Schedule 2 includes 'the provision on land of buildings . . . required temporarily in connection with and for the duration of operations being or to be carried out on . . . that land or on land adjoining that land'. The class is subject to a condition that the building in question shall be removed when the operations have been carried out."

The Inspector continued in paragraph 13 of the decision letter by saying:

"Were it not for the adjacent development there would be no dispute that there has been a breach of planning control. There also appears no dispute that the building is currently used to store items in connection with the adjacent approved development. The appellant says that it is intended to remain for the duration of the authorised operations, which he estimates will take 2 to 3 years. However, it has already been there for about a year and it seems to me that work has taken place on only one of the approved buildings. The picture given in his statement is of a 'one man' builder, proceeding slowly with the development. It seems to me that the essence of a 'temporary building' which is 'required temporarily' is its short term nature, and the GPDO clearly seeks to exempt transitory buildings from planning control. I do not consider that it is intended to permit the retention of buildings of permanent construction for an inordinate period while a large development proceeds slowly."

9. It is necessary to read paragraphs 14 to 18 of the decision letter in order to understand the four grounds of challenge advanced by Mr Richards on behalf of the appellant:

"14. By no stretch of the imagination could this building be regarded as being of temporary construction; it is substantial and the views of some local residents that it took 7 months for excavation and building works have not been challenged. The appellant says that he intends to remove it and the associated works when the adjacent development is completed, as required by the GPDO but, in view of the building's size and nature and of the scale of the works which would be needed, I am not persuaded that this is a realistic intention.

15. Whether a building is required temporarily in terms of Part 4 of the GPDO is a matter of fact and degree. It is not clear to me whether the Council accepted that the one shown in the appellant's plan of January 2005 would be permitted development. However, in my opinion the appeal building, in terms both of its construction and likely period of existence is not a 'temporary building' and so does not fall within the description of those matters which are the subject of Part 4.

16. The appellant argues that his site was subject to burglaries after work started, with security units forced open. He says the building is needed to protect materials and equipment. I agree with him that the doorway is large enough to permit equipment to be kept inside, and I saw evidence of damage around the pedestrian door consistent with an attempted forced entry. However, I find it surprising that a building of such substantial construction would be built so far from the development it is supposed to serve, and not closer to the site access, where surveillance would be better, additional access works would not be needed and major earthworks would not be required to accommodate it. In my experience it is not unusual to keep vehicles, equipment and materials on a building site with, if necessary, protective and deterrent measures such as security cameras, alarms or vehicle immobilisers. I also noted the substantial metal gates at the entrance, and lockable site gates in front of them, which should provide a significant measure of security. In my opinion it is unnecessary to have such a substantial building of permanent construction to provide security.

17. I appreciate that the slow rate of this development may involve specialist equipment being on site for a considerable period but I see no reason why, for example, ground works requiring the stored equipment could not be carried out at the one time rather than piecemeal, and so reduce the time vulnerable items have to stay on the site. I saw some materials stored elsewhere on the site and I see no reason why others could not be, or be kept in the building under construction.

18. Even if I am wrong in my finding that the building is not 'temporary' in terms of Part 4, the word 'required' implies an element of being reasonably considered as essential rather than what a developer may consider desirable or convenient. However, I am satisfied that there are other means of providing any security needed and I conclude that as a matter of fact and degree the building is not 'required' for the carrying out of the adjacent development."

10. The Inspector referred to the case of Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions No.2 [2000] 2 PLR 102, and said in paragraph 22:

"Skerritts demonstrates that an insubstantial structure can still be permanent enough to be a 'building' and so subject to planning control. To my mind the present case is at the other end of the scale -- whether a substantial building of unquestionably permanent construction should nevertheless be considered as temporary in terms of Part 4 of the GPDO. In all the circumstances I consider that this building cannot be so regarded."

11. In the context of the appeal under ground (g), the Inspector considered the timescales in the enforcement notice for complying with the various requirements and concluded:

"I am not persuaded that more elaborate security measures than normally found on rural building sites are needed here."

12. On behalf of the appellant, Mr Richards challenged the Inspector's decision on four grounds. First, he submitted that the Inspector had erred by making repeated references to a "temporary building" and concluding that by virtue of its size and mode of construction, the building the subject of the enforcement notice was not a "temporary building". He submitted that in Class A in Part 4 of Schedule 2 to the GPDO, the word "building" is not qualified by the word "temporary". All that is required is that the building should be "required temporarily" in connection with operations on the land or on adjoining land.
13. Secondly, it is contended that the Inspector misdirected himself when he said in paragraph 13 of the decision letter:

"I do not consider that it [ie, Class A, Part 4] is intended to permit the retention of buildings of permanent construction for an inordinate period while a large development proceeds slowly."

It is submitted that it would have been open to introduce a time limit into Class A but Parliament chose not to do so.

14. Thirdly, it is submitted that the Inspector took into account an irrelevant factor, namely the appellant's intention when concluding that he was not persuaded that it was "a realistic intention" to remove the building and the associated works when the adjacent development had been completed.
15. Finally, it is said that the Inspector, in applying an essentiality test in paragraph 18 of the decision letter, adopted too high a threshold. The appellant had to demonstrate not that the building was essential for the proposed purpose, merely that it was "required", although Mr Richards accepted that implicitly the building had to be reasonably required.
16. I accept that the Inspector appears to have adopted a two-stage approach; firstly looking at the building in terms of its construction and likely period of existence, and then considering whether or not the building was required. In my judgment, in deciding whether or not a particular building falls within Class A in Part 4 -- that is to say whether the particular building really is required temporarily in connection with operations on the same or adjoining land -- it is necessary to have regard to all of the relevant circumstances. On any basis, the size and means of construction of the building in question will be highly relevant factors.
17. Mr Richards drew attention to the following observation of Morritt LJ in the Skerritts case:

"In the case of planning control, it is apparent from the Town and Country Planning (General Permitted Development) Order 1995, Schedule 2 Part 4, that a building may be sufficiently permanent for the purpose of planning control and yet be temporary so as to come within the exemption for which that order provides." (See page 14).

Whilst of course it is possible that a landowner would wish to erect a permanent building to serve a temporary purpose, as a matter of common sense, absent any other explanation, the larger and more permanent the building in question the less likely it is to be genuinely "required temporarily" in connection with the carrying out of development on the land or on adjoining land. Common sense has some role to play in planning control and the proposition that a permanent building may fall within Class A in Part 4, whilst in principle correct, raises the obvious question: why would anyone go to the time, trouble and expense of erecting a permanent structure if it is required only temporarily? In any particular case there may be a sensible explanation but it would be necessary to look at the facts of each case to see whether or not such an explanation had been provided. It is not unreasonable to adopt, as a starting point, the proposition that a landowner will not usually erect a permanent building if it is merely required temporarily. Similarly, the length of time taken to construct the building and the length of time that it has been and is likely to be in situ must also be relevant considerations. Perhaps not determinative in the manner indicated in the Inspector's paragraph 15, but highly relevant.

18. Then the Inspector is criticised for his use of the phrase "temporary building". However, it is not clear whether, in using this particular phraseology, the Inspector was simply responding to the way in which the appellant had put his case in his written representations. It would not be surprising if the parties had used the phrase "temporary building" as convenient shorthand for a building that was "required temporarily in connection with and for the duration of operations being or to be carried out on, in, under or over that land or on land adjoining that land". As Miss Olley points out on behalf of the Secretary of State, in construing Class A in Part 4, one is entitled to have regard to the heading which is "Temporary Buildings and Uses" (see Cawley v Secretary of State for the Environment [1990] 2 PLR 90, per Mr Lionel Read QC sitting as a Deputy Judge of the Queens Bench Division at pages 94 to 95).
19. It is necessary to adopt a common sense approach when reading decision letters. The Inspector was not considering the meaning of Class A in Part 4 in the abstract, and given the size of this particular building, the length of time that it had taken to construct it and the means of construction, I would be inclined to regard any distinction between a 'temporary building' and "a building required temporarily" as a distinction without a difference. However, whether or not I am right in that conclusion, the issue is academic given the clear conclusions reached by the Inspector as to whether or not this particular building was required temporarily in connection with the development of the log cabin units on adjoining land. As I have indicated, it is conceded on behalf of the appellant (and rightly conceded) that "required" means reasonably required, and whether or not a building is reasonably required for a particular purpose is very much a question of fact and degree.
20. The submission that in considering that question the Inspector had regard to an irrelevant factor, namely the appellant's intentions, is based upon the following observation of Morritt LJ in the Skerritts case:

"It is clearly established that permanence has some part to play in the question of whether the operation is a building operation, and whether the product of the operation is a building or not. But it seems to me that it does not depend upon the intention of the erector as to whether it is a building operation or a building. Moreover, that permanence does not necessarily connote that the state of affairs is to continue forever or indefinitely. It is a matter of degree between the temporary and the everlasting." (Page 114).

While those observations were wholly apt in the circumstances of the Skerritts case, as the Inspector rightly pointed out the present case is very much at the other end of the scale. The question for the Inspector was whether a substantial building of unquestionably permanent construction should nevertheless be considered as temporary in terms of Class A in Part 4 of the GPDO (see paragraph 22 of the decision letter).

21. The submission that in the context of this case the appellant's intentions were irrelevant is wholly artificial. Without some knowledge of what the appellant's intentions were in respect of the building, it was on the face of it "a substantial building of unquestionably permanent construction" which would not fall within Class A in Part 4 of Schedule 2 to the GPDO. Thus, it was essential for the Inspector to examine the appellant's explanation as to why it was that a substantial building of unquestionably permanent construction should nevertheless be regarded as falling within Class A in Part 4. The appellant explained to the Inspector why the building was needed to protect materials and equipment (see paragraph 16 of the decision letter) and also explained that it was intended to remove the building and associated works when the adjacent development was completed (see paragraph 14 of the decision letter). The Inspector had to consider whether he accepted these explanations.
22. It was therefore material for the Inspector to consider whether the professed intention to remove the building was or was not a realistic one. The practicality of removal was on of the factors which the Inspector was entitled to consider in deciding whether or not this building was genuinely required temporarily and would be removed at the end of the building operations on adjoining land, or whether what had really happened was the erection of a permanent building without planning permission. Given the Inspector's description of the building, his conclusion that the professed intention to remove it at the end of the associated works was not realistic is wholly unsurprising.
23. Finally, I turn to the fourth ground of challenge: that the Inspector in paragraph 18 applied too high a threshold in adopting an essentiality test rather than considering whether or not the building was reasonably required. It is rightly accepted that the appellant had to establish that the building was reasonably required, not merely that he considered it desirable and/or convenient. While in many contexts there may well be a real distinction between something that is "essential" and something that is "required", in the context of this particular building this is a semantic point of no substance whatever. If one reads the decision letter as a whole it is plain that the Inspector considered whether or not this building was necessary in connection with the operations on the adjoining land. Thus, we find in the last sentence of paragraph 16 of the decision letter:

"In my opinion it is unnecessary to have such a substantial building of permanent construction to provide security."

That conclusion is explained further in paragraph 17 of the decision letter. One then has paragraph 18, which I accept contains a reference to "essential", but equally the Inspector concludes as a matter of fact and degree that the building is not required for the carrying out of the adjacent development. If one is in any doubt as to the Inspector's approach, one can then go to paragraph 33 where the Inspector makes it perfectly clear that he was not persuaded that more elaborate security measures than those normally found on rural building sites were needed on this particular site. Thus, on any basis, the only reasonable conclusion open to the Inspector was that this building was not required temporarily within Class A in Part 4.

24. If one stands back and looks overall at the reasonableness of the Inspector's conclusions, he was confronted with a large permanent building. On its face, such a building would not fall within Class A in Part 4 unless there was some very particular reason for it to do so. A landowner who merely required a building temporarily in connection with building works on adjoining land would not normally put up a building of permanent construction and such a substantial size. So the obvious question for the Inspector to consider was the appellant's explanation as to why he had erected this particular building. The explanation was that he needed it for security. The Inspector considered that explanation and rejected it for cogent reasons in paragraphs 16 and 17. In the light of that reasoning, there was only one conclusion that was reasonably open to the Inspector, namely that this particular building was not genuinely required temporarily in connection with the erection of the log cabins. In short, the appellant's arguments were a "try on" and in reality he had erected a large permanent building without planning permission.
25. Standing back, there was only one response to this appeal: whatever legal test was adopted, by no stretch of the imagination could this particular building be said to fall within Class A in Part 4 of Schedule 2. For these reasons, this appeal must be dismissed.
26. MISS OLLEY: My Lord, I am grateful. I have an application for the Secretary of State's costs.
27. MR JUSTICE SULLIVAN: Yes.
28. MISS OLLEY: Has a copy of the schedule made its way to your Lordship?
29. MR JUSTICE SULLIVAN: It has not, I am afraid, no.
30. MISS OLLEY: I am going to hand up a schedule of costs. (Handed).
31. MR JUSTICE SULLIVAN: Sorry, that schedule did reach me. Thank you.
32. MISS OLLEY: I understand from my learned friend that the application is not resisted in principle or amount. However, I would like to make an adjustment. On the second page, attendance at hearing, it is stated 5 hours. We will reduce that to 2.5 hours which means that £400 comes off the total bill.
33. MR JUSTICE SULLIVAN: The Treasury Solicitor has two and a half useful hours to use elsewhere. Right. Mr Richards, no objections in principle?
34. MR RICHARDS: Not in principle or the amount sought.
35. MR JUSTICE SULLIVAN: Then the appeal is dismissed and the appellant is to pay the first respondent's costs, those costs to be summarily assessed in the sum of £5,000.