QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF HILLIARD BROTHERS (EWELL) LIMITED||Claimant|
|(1) THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT||First Defendant|
|(2) EPSOM & EWELL BOROUGH COUNCIL||Second Defendant|
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Philip Coppel (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant
The Second Defendant was not represented and did not attend
Crown Copyright ©
The relevant chronology
"1. Resurfacing of part of the existing car park.
11. Retention of part of the car park.
111. Retention of a bund surrounding the car park."
On 19th May 2005 the Council refused the application for planning permission. The appellants duly lodged an appeal against that refusal. On 12th December 2005 the Council served an enforcement notice on the appellants. The enforcement notice applied to the same land that had been the subject of the planning application. The breach of planning control alleged in the enforcement notice is as follows:
"The formation of earth bunds within the area identified on the attached plan and described as 'Earth Bunds'. These bunds form the south western boundary and the south eastern boundary of an area identified as C on the attached plan.
"The resurfacing and creation of a hardstanding area identified as area C on the attached plan."
The requirements of the notice are as follows:
"(i) Area C
"Remove the material used to create the hardstanding marked on the attached plan as area C and restore the land to a condition suitable for agricultural use.
(ii) Earth Bunds
"Remove the earth bunds, which have been identified and marked on the attached plan as 'Earth Bunds' and restore the land to a condition suitable for agricultural use."
The time period given for compliance by the enforcement notice was 26 weeks. On 19th January 2006 the appellants appealed against the enforcement notice on grounds (a), (b), (c), (d) and (f), as set out in section 174(2) of the 1990 Act. However, at the outset of the inquiry the appellants withdrew grounds (b), (c) and (d) of the appeal and relied only on grounds (a) and (f). On 11th December 2006 the Inspector dismissed both appeals.
The legal framework
"(1) That the decision is not within the powers of the 1990 Act, or
(2) That any of the relevant requirements have not been complied with in relation to that action ..."
(2) An appeal under section 289(1) of the 1990 Act is linked to a "point of law".
(3) As Mr Coppel observed in paragraph 9 of his written skeleton argument, in summary the permissible grounds of challenge under either section 288 or 289 of the 1990 Act are analogous to the permissible grounds of challenge to an administrative decision by way of judicial review proceedings: i.e. that the decision was one which no reasonable decision-maker in his position would have made or the methodology by which the decision was reached was materially flawed.
The grounds of challenge
(1) that the Inspector, in concluding that the bunds and hardstanding were not reasonably necessary for agricultural, failed to give adequate reasons dealing with "the main thrust of the appellants' case" in relation to the area of land at the farm currently used for car storage, area A1/A2 on the plan, ("the reasons ground");
(2) that the Inspector failed to take proper account of the appellants' internal "fall-back" position in relation to the area delineated on the plan as C1 ("the fall-back point"); and
(3) that in relation to the appellants' enforcement appeal, the Inspector had wrongly upheld a "clearly excessive" requirement imposed by the enforcement notice, requiring restoration of the land to a "condition suitable for agricultural use" ("the betterment point").
The first ground of challenge: The reasons challenge
"36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
"6. Various points were put forward on the Appellants' behalf as support and justification for the development. Part of the Appellants' case was that the hardstanding is needed for keeping equipment to be used for the turf production business now in its early stages on some of the land at Downs Farm and that nowhere else was available for this purpose. The hardstanding would also be used as the place where customers would come with vehicles to buy and collect turf. It was claimed that the turf production enterprise would have positive effects in improving the appearance of the green belt, and that part of the hardstanding had lawful use rights for vehicle parking and storage in connection with the fruit and vegetable warehousing and distribution business operated at Downs Farm. The Appellants suggested that at least part of the hardstanding area (area C1) was within the curtilage of the warehouse building. The contentions about use rights and curtilage were made as a "fall-back" position. The Appellants also contended that the turf production enterprise at Downs Farm was 'agriculture' within the meaning of the Planning Act.
"7. In my judgment the argument that nowhere else was available for keeping plant and equipment is unconvincing. Some of the land at Downs Farm is currently used for car storage. This use is unauthorised and has been subject to an extant enforcement notice issued in 1990 and upheld in 1991 after an appeal. Apparently the 1991 notice was complied with but car storage resumed later, resulting in further enforcement action when the Council apparently did not realise they had already issued an enforcement notice and defended it on appeal.
"8. The Council has weakened its own case by allowing the use to continue for a long time without any prosecution, having decided it was expedient to take the original enforcement action. However, belated action appears now to be underway and I do not consider it right to allow a further incursion of development into green belt countryside when there is an already developed area which could be potentially available if its unauthorised use ceased as required by an extant enforcement notice.
"9. The use of the car storage compound for customer parking and loading of turf would have security, safety and convenience implications from the Appellants' viewpoint, in that customers' vehicles would have to be routed past the warehouse buildings and offices. But I do not see these points as insurmountable problems."
Mr Findlay submitted that the Inspector had singularly failed to explain why area A1/A2 could be properly regarded as available for the agricultural business relating to the production of turf when it was the appellants' contention and evidence that that area was already entirely required for the purposes of the appellants' fruit and vegetable business, both in the medium and the long-term. It was Mr Findlay's submission that although the Inspector had dealt with the possible use of area A1/A2, he simply did not deal with the main thrust of the appellants' case with regard to that area (as summarised above). As such, Mr Findlay submitted, the Inspector's reasons were inadequate. In short, Mr Findlay submitted that to deal with this aspect of the matter without saying and explaining why the appellants' arguments were unconvincing is simply not sufficient by way of supporting reasoning.
1. Some of the land at the farm is currently used for car storage;
2. This car storage constitutes an unauthorised use of the land and it has been the subject of a history of enforcement action dating back to 1990;
3. "belated action" now appears to be underway and it would not be right to allow further incursion into the green belt where there is already a developed area which could potentially be available if its unauthorised use ceased, as required by an extant enforcement notice; and
4. While the use of this area for the purposes of customer parking and the loading of the turf would have security, safety and convenience implications for the appellants, these are not insurmountable problems.
In other words, Mr Coppel submitted, the Inspector had found that there already existed a developed area of the farm that had the capacity to meet any putative need for keeping plant and equipment, loading turf and providing customer parking. It was Mr Coppel's submission that, reading the decision letter as a whole and in a straightforward manner, it is apparent that the Inspector did address the primary thrust of the appellants' case on this important controversial issue and gave perfectly adequate reasons for concluding that he was not persuaded by the appellants' case.
The second ground of challenge: The fall-back point
"12. The part of the hardstanding known as area C1 may have been used from time to time for parking lorries and for other miscellaneous purposes such as selling Christmas trees, as was apparent from aerial photographs and other evidence including statutory declarations. The available evidence suggests to me that for some years this area has probably been in mixed use for a variety of purposes associated with Downs Farm as a whole, and that the nature of the use has changed from time to time. At one time the area seems to have been a 'general dump', partly covered by spoil from building work.
"13. But within the last 10 years (including the 10 years before the enforcement notice was issued) the use of what is now the area of hardstanding appears to have materially changed more than once. One such change would have been from a former mixed use when farm equipment and other agricultural items were sometimes kept there, to use exclusively for purposes connected to the warehousing and distribution business, with no agricultural element in the use. Another change appears to have occurred when cars were placed there -- the Council's enforcement officer evidently saw new cars being delivered to this area on several occasions. I also suspect that at times within the last 10 years the use of this area was probably minimal for the purposes of planning control. Given this varied history, I find that lawful use rights for warehousing and distribution use have not been achieved."
Mr Findlay submitted that the mere cessation of part of a mixed-use or the occurrence of some periods of non-use will not give rise to a material change of use, and that the Inspector's reasoning was therefore flawed in the conclusions expressed in the paragraphs of his decision letter to which I have just referred. Mr Findlay submitted that these errors on the part of the Inspector substantially undermined the conclusion in paragraph 15 of his decision letter that little weight should be given to the appellants' "fall-back" case that existing use rights could help to justify the grant of permission. In my view, there is no substance in this particular point.
The third ground of challenge: The betterment effect
"24. Whilst maintaining that the requirements of the enforcement notice were excessive, the Appellants did not suggest what lesser steps should be substituted. Their main argument appears to be that the requirement to restore the land to a condition suitable for agricultural use is unreasonable because the land has not been in agricultural use for a long time.
"25. In the light of the conclusion that planning permission should not be granted for the unauthorised development, the requirement to remove the bunds and hardstanding is not unreasonable or excessive. Part of the land may have been covered by old ash surfacing for some years, but it is not possible to distinguish between the old and the new, and in any case having withdrawn ground (d) of the section 174 appeal the Appellants cannot rely on an argument that any of the hard surfacing has become lawful through the passage of time. The restoration requirement is also not excessive -- there is no requirement to use the land for agriculture, merely to restore it to a condition suitable for agricultural use. That is a reasonable requirement."
I am satisfied that Mr Coppel is right on this aspect of the matter, namely that what is required by the enforcement notice is the removal of the bunds and hardstanding. Once that is done, the land will have been rendered in a condition suitable for agricultural use. Accordingly, as Mr Findlay fairly acknowledged with regard to this particular ground, on that basis this ground must fail.