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 WC2A 2LL
		9th December 2008

1. MR JUSTICE SULLIVAN: This is an appeal under Section 289 of the Town and Country Planning Act 1990 against a decision of an inspector, appointed by the first respondent, dismissing the appellant's appeals against two enforcement notices which were issued by the second respondent.
2. The inspector's decisions are contained in a decision letter dated 4th February 2008, in which he dealt with both enforcement notices. Both of the notices related to land at Gralerie Woods, South Tawton near Okehampton. Both of the notices were dated 2nd April 2007.
3. The first enforcement notice ("Enforcement Notice A") alleged a breach of planning control as follows:

"Without planning permission, the erection upon the Land of timber decking occupying an area of 5.3 metres x 3.8 metres, together with supporting walls, piers and structures, in the approximate position shown marked with 'A' on the attached plan".

The notice required the removal of the decking from the land.

4. The second enforcement notice ("Enforcement Notice B"), alleged the following breach of planning control:

"Without planning permission, the change of use of the Land from agricultural (forestry) use to a mixed use for agriculture (forestry) together with:

(a) use of the Land for residential purposes; and

(b) the storage on the Land of domestic items; and

(c) the storage and deposit on the Land of builder's equipment, materials and waste; and

(d) the storage and deposit on the Land of equipment, materials and waste not directly concerned with woodland management."

The requirements of that notice were to cease using the land for residential purposes and to remove the various items, equipment and so forth from the land.

5. The appeal against Enforcement Notice A was on ground (c) of section 174(1) of the Act, that is to say that there had been no breach of planning control. The appeal against Enforcement Notice B was on ground (d) of section 174(1) of the Act, that is to say that the enforcement notice was out of time.
6. The basis on which it was said there had been no breach of planning control in respect of the decking, which was enforced against in Enforcement Notice A, was that the decking was a permitted development under the Town and Country Planning (General Permitted Development) Order 1995 ("the GPDO").
7. To fall within any of the classes within Part 1 of Schedule 2 to the GPDO, the decking had to be "development within the curtilage of a dwellinghouse". The building which was said to be the dwellinghouse in question was the subject of a certificate of lawful use, which was issued by another inspector, in response to the appellant's application for a certificate in the following terms: "use of forestry store as residential".
8. In a decision letter dated 12th September 2006 ("the 2006 decision letter") the earlier inspector allowed the appellant's appeal against the second respondent's refusal of such a certificate, and granted a certificate in these terms: "Use of forestry store as a single dwellinghouse." Thus, the inspector in the present appeals said, in paragraph 5 of the decision letter, that two main issues arose:

"... first, whether the building next to the decking is a dwellinghouse for the purposes of planning law; secondly, whether the decking is within the curtilage of a dwellinghouse."

In summary, the inspector concluded that although the building was used as a dwelling, it was not a dwellinghouse for the purposes of the GPDO and, even if it was, the decking had not been erected within the curtilage of that dwellinghouse. He made a further finding, which need not trouble us for present purposes.

9. At first sight it would seem that the inspector's conclusions in those two respects were pre-eminently matters of fact and degree for him to decide. He referred to Circular 10/97. Paragraph 2.81 of Annex 2 to the circular says this in part:

"It is important to distinguish the term 'use as a single dwellinghouse', in section 171 B(2), from what might normally be regarded as being a single dwellinghouse. Experience has suggested that, on occasion, people may adapt, or use, unlikely or unusual buildings or structures as their home or dwellinghouse. However, the Courts have held that, although there is no definition of what is a dwellinghouse, it is possible for the reasonable person to identify one when he sees it. If no reasonable person would look at a particular structure used as a dwellinghouse and identify it as such, it is justifiable to conclude, as a matter of fact, that it is not a dwellinghouse. In those circumstances, while its use as a dwellinghouse might be immune from enforcement action, it is not a dwellinghouse as such and, accordingly, would never enjoy the benefits of 'permitted development' rights under Article -3 of, and Part 1 of Schedule 2 to, the GPDO..."

That advice is akin to the well known advice in respect of the recognition of elephants: one knows an elephant when one sees it, even though it might be somewhat difficult to define it in words.

10. The inspector referred to Circular 10/97 in paragraph 7 of the decision letter, saying that it was important to distinguish the term "use as a single dwellinghouse" from what might normally be regarded as being a single dwellinghouse, and explaining that that was because people sometimes used unlikely or unusual buildings as dwellings. He said:

"7... Defining whether a structure is or is not a 'dwellinghouse' has to take into account both use and physical characteristics."

11. The inspector then described this particular building in paragraphs 8-10 of the decision letter:

"8. In this case, the building is constructed mainly of blockwork clad with timber slats. It has a ridged, tiled roof. There is only one window, outside which are hinged full-length door-type panels covered with timber slats to match the adjacent wall. Another similar panel is apparently used to cover the single entrance door when the building is unoccupied. This door opens into the kitchen area. The door itself is solid, in the sense that it has no visible glazed opening, although evidently there is glass between the timber panels which are part of the door structure and cover both sides of the door.

9. Inside the building, there are two main rooms, which were furnished at the time of my inspection as a kitchen area and a bedroom, plus a shower and toilet. There was no room or space which could be described as a living room or dining area. There is a loft accessible through a ceiling hatch and the kitchen area is fitted with cupboard units, but there does not appear to be any space for domestic furniture for keeping items such as clothing. The kitchen area also serves as a passageway into the building from the entrance door. The space in this area is so confined that it is difficult to see how it could accommodate even a small table and chair or stool, or a 'breakfast bar' or any other arrangement of the sort provided in a normal dwelling for eating meals either in a kitchen or in a sitting or dining area or room.

10. I get the impression from the evidence that Mr Gore probably made efforts until fairly recently to disguise the nature of the building. To a degree, he succeeded. From the outside, the building does not look like a house or dwelling. Taking into account the small size of the building, its general appearance, the limited internal space, the difficulty of accommodating normal domestic furniture of the type described above and the lack of natural light resulting from the presence of only one window, I find as a matter of fact and degree that although the building has been used as a dwelling, it is not a dwellinghouse for the purposes of planning law."

12. Mr DeLury, on behalf of the claimant, placed much reliance on the same inspector's conclusions in an earlier decision in 1991, in which he had described an earlier structure on the site as a "dwellinghouse". However, it has to be borne in mind that the inspector in 1991 was considering an enforcement notice which alleged that a structure which had been erected as a forestry store had begun to be used as a dwellinghouse.
13. The appellant's case at that time was that the structure was not being used as a dwellinghouse, and was therefore permitted development because it was a forestry store. The inspector did not accept the appellant's case and concluded that the building was being used as a "dwellinghouse". However, it has to be borne in mind, firstly, that the structure was different and, secondly, that the issue was very different. The inspector in that case was not concerned with whether or not a structure that was being used as a dwelling was within the definition of "dwellinghouse" for the purposes of the GPDO; he was concerned with whether there had been a change of use from a forestry store to a residential use of the structure. Thus, his conclusions have to be seen against that background.
14. Secondly, it was submitted that the local authority ("the second respondent") had agreed, in a statement of agreed facts, that "a dwellinghouse is located within the appeal site". What had occurred was that, after the 1991 decision, that structure was demolished and, in 1992, the present structure was erected. In the 2006 decision letter the inspector had concluded that that building had begun to be used as a dwelling in 1999.
15. The second respondent's position, however, was ambiguous, because the witness's proof stated in paragraph 3.7:

"In the Authority's view despite its lawful status as a dwellinghouse, the 'forestry store' does not have the benefit of a curtilage."

And in paragraph 3.15 it was contended that:

"No reasonable person would look at the 'forestry store' with its one window, tiny floor space and severely restricted amenity and regard it as a dwellinghouse, even though its lawful use is as such."

16. The inspector clearly identified that conflict and sought to resolve it during the course of the inquiry. He did so before the appellant had the opportunity to cross-examine the second respondent's witnesses. The inspector was, of course, perfectly entitled to form his own view and, having noticed the apparent discrepancy in the evidence before him, he was perfectly entitled to attempt to resolve it. In my judgment, there can be no question of unfairness here. Even on the claimant's own notes of the proceedings of the inquiry, the inspector identified the confusion in the second respondent's case and sought to resolve it before the appellant cross-examined the second respondent. The inspector's conclusion as to whether or not the building was a dwellinghouse, as opposed to a building that was being used as a dwelling, was eminently reasonable on the factual material before him.
17. Mr DeLury submitted that the various matters relied on by the inspector in paragraph 10 of the decision letter were not relevant. I do not accept that submission. All of those factors would appear to be relevant for the purposes of deciding whether or not a building which is being used as a dwelling can sensibly be described as a dwellinghouse.
18. He further submitted that the inspector failed to mention various authorities. In my judgment, the inspector was not required to refer to those authorities, because they were not concerned with buildings which were not designed as dwelling houses and the question of whether they were properly to be described as dwelling houses; they were concerned with buildings, such as weekend chalets, which in physical form and appearance were dwellinghouses. The question was whether the extent of their use for residential purposes amounted to use as a dwellinghouse.
19. In one of those authorities, the case of Bloomfield v Secretary of State for the Environment, Transport and the Regions and Epping Forest District Council [1999] EWHC Admin 217, Mr Nigel Macleod QC said in paragraph 30, in respect of the building in question:

"... the chalet has always been a dwellinghouse. There is no dispute on the papers before me that physically the building was a dwellinghouse when the condition was imposed. It always has been a permanent structure with all the facilities of day-to-day living..."

20. Thus, the issue in the cases referred to by Mr DeLury was a completely different one. It was whether use, for example, at weekends, or simply for holiday periods, amounted to a residential use. The issue was not whether a building in residential use was properly to be described as a dwellinghouse.
21. The inspector referred to the correct test, which is that set out in paragraph 10/70. His conclusion that a building which, at least initially, purported to be a forestry store, was not fairly described as a dwellinghouse, was one which was reasonably open to him.
22. So far as the issue of curtilage is concerned, that pre-eminently was a question of fact. The inspector said this in paragraphs 11 and 12 of the decision letter:

"11. Even if I were to make a different judgment on that point and regard the building as a dwellinghouse, I do not see any reason to disagree with the 2006 inspector who found that the building did not have any defined curtilage. The building stands in woodland and the vegetation close to the building has been left in a fairly natural state. There is a worn pathway next to one side of the building where a few chippings have been put down and there are natural changes of land level forming embankments nearby. An area of river-bank near the building appears to have been used as a kind of camp fire or barbecue. There is little difference in physical character between the land immediately around the building and the rest of the woodland owned by Mr Gore.

12. The decking (on which I saw a table and chairs and a gazebo-style canopy) appears to have been used as a sitting out or eating area in conjunction with the building, but it is necessary to consider the likely situation before the decking was constructed, and the evidence suggests that this area had the appearance more of a woodland glade or river-bank than the curtilage of a dwelling."

23. In my judgment, those paragraphs disclose no arguable error of law. Mr DeLury referred to various authorities where inspectors had referred to authority and appeared to have misunderstood that authority. In those circumstances, their decisions were quashed, but here there is nothing to indicate any error of law in this inspector's approach. He was perfectly entitled to conclude that, given the nature of this particular building, which had started life as a forestry building in the middle of a forest, it did not have any residential curtilage about it. The inspector was entitled to conclude that although an area of river bank near the building appeared to have been used as a camp fire or barbecue, that was not sufficient to define a curtilage.
24. The question, as the inspector rightly observed, was not whether the decking, once it was being used, was being used as part of the curtilage of the building; it was whether the area on which the decking was constructed was, at the time when it was constructed, already part of the residential curtilage of the building. While it may be relatively unusual for a building used as a dwelling not to have a residential curtilage, it is perfectly possible that such circumstances may arise, and one can readily understand why they arose in this particular case, where, according to the inspector in the 2006 decision letter, in or about 1999 a forestry building had begun to be used as a dwelling.
25. When I asked Mr DeLury what the boundary of the curtilage was, he told me that it was not defined on any plan; it simply went down to the river. It was a matter that the appellant thought was "self-evident". Whether or not that was a matter which was "self-evident" on the ground was pre-eminently a matter for the inspector to determine, and a matter on which his site inspection would be of particular importance.
26. It is to be noted that, in reaching this conclusion in respect of the curtilage, the inspector echoed the conclusions of the 2006 inspector who, although he concluded that the building had begun to be used as a dwelling in 1999, also concluded:

"20... On the evidence before me I consider as a matter of fact and degree that the lawful use of the building does not extend to a curtilage."

So the two inspectors were ad idem on that issue.

27. I should also mention for the sake of completeness that, even if the complaint of unfairness on the part of the inspector in not referring to Circular 10/97 and therefore not giving the appellant an opportunity to comment upon his approach as to what was (or was not) a dwelling was justified, the inspector's conclusion that even if the building was a dwellinghouse it did not have a curtilage is fatal to the appellant's appeal. There can be no doubt that the council was contending, fair and square, in its proof of evidence that there was no residential curtilage. This was a matter which was squarely raised prior to the inquiry and the inspector reached a conclusion which, in my judgment, is impeccable on the facts.
28. I can deal very shortly with the appeal in respect of Enforcement Notice B. In order to succeed on the ground (d) appeal, the appellant had to show that the particular mixed use complained of had begun 10 years prior to the service of the enforcement notice in April 2007. Thus, the mixed use, incorporating the residential element, had to have begun in 1997. The inspector in 2006 had had to consider when the residential use of the forestry building had commenced. He concluded that while there had been some use of it for overnight accommodation between 1996 and 1999, its use as a dwelling had not commenced until 1999. Thus, it had become immune from enforcement action in that respect sometime during 2003: see paragraphs 6 and 9 of the 2006 decision letter.
29. The inspector in the present appeals in essence took that as his starting point and referred to the earlier inspector's conclusions in paragraph 17 of his decision letter, saying:

"17. In response to a question by me, Mr Gore confirmed that he disagreed with the 2006 inspector's finding about the curtilage; but Mr Gore did not dispute any of the inspector's other conclusions, including his finding relating to the use of the land. The 2006 inspector concluded that from about 1996, Mr Gore and others stayed overnight in the building from time to time, using the loft space as a rudimentary sleeping area, but it was not until 1999 (when a ground floor bedroom was created) that the building was used regularly for holidays and weekend stays.

18. There is a difference between the sort of occasional overnight sleeping in the loft which appears to have taken place before 1999 and the more frequent, regular use involving the use of a bedroom after 1999. The former can best be described as occasional camping, the latter as residential. As recorded by the inspector, the appellant's case at the 2006 inquiry was that residential use of the building started in 1999."

The inspector then went on to say:

"19. Without residential use of the building, there would not have been any residential component in the use of the planning unit as a whole before 1999."

Thus, he concluded that the mixed use alleged in the enforcement notice did not start until 1999.

30. Those findings were plainly open to the inspector. Although Mr DeLury submitted that the claimant did not accept what the inspector had said in 2006, the onus lay on the claimant to establish his case under paragraph (d). To put it at its lowest, the earlier inspector's decision in 2006 was the appropriate starting point which the inspector, in the present appeals, would follow unless there was cogent evidence to the contrary. There was no such evidence.
31. Although Mr DeLury submitted that the inspector erred in his approach, submitting that use for residential purposes does not necessarily mean permanent use at all times (see, for example, the Bloomfield case to which I have referred), that does not mean that any use of a building (for example, for overnight camping) amounts to a residential use of that building. It is a question of fact and degree whether or not any particular use of a building (for example, for occasional overnight sleeping) does or does not amount to a residential use of that building. That was precisely the issue the inspector had to consider in 2006. His conclusion, as a matter of fact and degree, that residential use started in 1999 is fatal to the appeal in the present case under ground (d), in the absence of any cogent countervailing evidence. It follows that the appeals against both enforcement notices must be dismissed.
32. Thank you. Yes?
33. MR BULEY: My Lord, first of all can I mention two points for the transcript. They are very minor. When your Lordship turned to deal with Enforcement Notice B, you mentioned that in order to succeed on the ground (c) appeal --
34. MR JUSTICE SULLIVAN: It should be ground (d).
35. MR BULEY: The other point my learned friend is Mr DeLury.
36. MR JUSTICE SULLIVAN: I thought I said "DeLury".
37. MR BULEY: My Lord, there is an application for costs. Does your Lordship have a schedule?
38. MR JUSTICE SULLIVAN: Yes, I have it, thank you.
39. MR BULEY: We would invite your Lordship to make a summary assessment. Two questions arise as to principle, first of all --
40. MR JUSTICE SULLIVAN: -- and then as to amount. What do you say about either of those, Mr DeLury?
41. MR DELURY: Could your Lordship give us the opportunity, because we have only just received the second bill -- whether it could be "to be taxed if not agreed"?
42. MR JUSTICE SULLIVAN: If you have only just received it and have not had time to consider it -- it is quite a lot -- I am perfectly happy to say, "Go for detailed assessment". Is there any argument about the principle?
43. MR DELURY: No, it is the detailed assessment.
44. MR BULEY: I do not object, my Lord, thank you very much.
45. MR JUSTICE SULLIVAN: The appeal is dismissed, the claimant is to pay the first respondent's costs, those costs to go for detailed assessment unless otherwise agreed.
46. MR DELURY: If appropriate, my Lord, can we ask for leave to appeal?
47. MR JUSTICE SULLIVAN: You cannot ask me for leave to appeal, because it is a second appeal, Mr DeLury. You have to ask the Court of Appeal.
48. MR DELURY: Thank you.
49. MR JUSTICE SULLIVAN: Thank you very much indeed.