QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF LUCCHETTI||Claimant|
|SOUTH NORFOLK DISTRICT COUNCIL||Defendant|
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Miss Clare Parry (instructed by Sharpe Pritchard) appeared on behalf of the Defendant
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The carrying out on agricultural land comprised in an agricultural unit of 5 hectares or more in area of —
(a) works for the erection, extension or alteration of a building;
which are reasonably necessary for the purposes of agriculture within that unit."
(1) Development is permitted by Class A subject to the following conditions —
(a) where development is carried out within 400 metres of the curtilage of a protected building, any building, structure, excavation or works resulting from the development shall not be used for the accommodation of livestock except in the circumstances described in paragraph D.3 below or for the storage of slurry or sewage sludge;
One goes to A.2 (2) -
"(2) Subject to paragraph (3), development consisting of —
(a) the erection, extension or alteration of a building;
is permitted by Class A subject to the following conditions -
(v) the development shall, except to the extent that the local planning authority otherwise agree in writing, be carried out —
(aa) where prior approval is required, in accordance with the details approved;
" ..... that full permission has been granted for the carrying out of development referred to above in accordance with the application form and plans submitted subject to compliance with the following conditions:
1 The development shall be constructed in accordance with the submitted drawings [referred to] and site plan [referred to] unless otherwise agreed in writing by the Local Planning Authority.
Reason for condition.
For the avoidance of doubt and to ensure the satisfactory development of the site in accordance with the specified approved plans, as required by the SP 1 South Norfolk Local Plan 2003.
2 Prior to the installation of any external cladding, the precise colours of the materials to be used in the construction of the external surfaces of the development hereby permitted shall have been submitted to and approved in writing by the local planning authority. The materials to be used in the development shall be in accordance with the approved details and retained in perpetuity unless otherwise agreed in writing with the local planning authority.
Reason for the condition
To enable the local planning authority to control the colour, tone, texture and appearance of the materials used to ensure the satisfactory appearance of the development, as required by Policy IMP 1 of the South Norfolk Local Plan 2003.
3 No external lighting shall be erected unless full details of its design, location, orientation and level of illuminance provided have first been submitted to and agreed in writing with the local authority. Such lighting shall be kept to the minimum necessary for the purposes of security and site safety and shall prevent upward and outward light radiation.
Reason for the condition
In the interests of the amenities of local residents and to minimise light pollution in accordance with Policies IMP 9 and IMP 25 of the South Norfolk Local Plan 2003."
The reasons for approval are given in these words:
"The proposal is acceptable in respect of the aims of the South Norfolk Local Plan 2003 and accords with [various relevant policies].
The proposal is sited in an area, and is of a scale appropriate for the needs of the agricultural holding. It has no significant impact on the visual appearance of the surrounding landscape, the historic value and setting of the adjacent listed buildings, the safety of the highway network and the free flow of traffic, or residential amenities of adjacent neighbouring properties. For these reasons the proposal accords with the principles of the above policies."
There is a note at the bottom which says:
"Note: This decision relates to the 'approval of details' under Schedule 2, Part 6 Class A of the Town & Country (General Permitted Development) Order and is approved subject to the conditions set out in A.2 (1) including that it shall not be used for the accommodation of livestock."
"Trees forming a screening on the application site were deciduous and will therefore provide no screening for six months of the year. Access will result in the loss of trees and scrub."
There was concern raised about impact on wildlife from light and noise pollution and highway safety issues.
"The site is bounded on the north, west and east by existing trees, hedge and scrub land. While some of the hedge on the frontage will be removed to facilitate the access, the remainder of the boundary screen will remain. The character of the area is agricultural, and it is not unusual to expect agricultural buildings in this type of countryside. I accept that at certain times of the year the building will be visible from various points from the adjacent sites and on the approach road from Wreningham, however, I consider that the scheme as proposed is acceptable in terms of its impact on the landscape."
"The removal of trees or hedgerows will be kept to an absolute minimum and whilst the tree screen is made up of native deciduous trees which shed their leaves in winter, trees still have to [be] preferred to any attempts at screening with imported conferees evergreens."
I think what is meant is "conifer"; whether "conferees" is a proper word, I am not sure. It is clear what was intended by what is there set out.
"There is some potential for the installation of lights which if inappropriate could result in light pollution to the surrounding landscape, danger to highway traffic and disturbance to the neighbouring properties. For this reason a condition is suggested to require all details of lighting to be agreed prior to its installation."
"Concern has also been raised regarding the potential for the building to be used to accommodate livestock. The ..... GPDO ..... Part 6, Class A, only permits agricultural buildings within 400 metres of existing dwellings if they are not for livestock or slurry purposes. As this application is a reserved matter as part of an Agriculture Prior Approval Notification, the use of the buildings is already controlled by this part of the GPDO, and there is no need for a restrictive condition."
That is entirely the correct approach so far as the GPDO is concerned.
"We seek your confirmation that the proposed defendant will accept that the planning permission be quashed in the proposed claim for judicial review."
"Notwithstanding the above, there was no indication in the application that the developer intended to remove vegetation other than for the purposes of creating an access (which itself did not require permission). The council had to reason to suspect that more substantial vegetation removal would take place. In fact, only some not all vegetation has been removed. Much of what has been removed was in the nature of undergrowth and this may be beneficial to the remaining hedges and trees in the long run by increasing light levels and reducing competition in the land. I accept however that the contractor concerned has been rather zealous in the management of the area, a number of trees have been removed and even the loss of undergrowth has made the site more open than before."
The letter went on to say that notwithstanding that, the view of the author was it would make no material difference. This was said:
"Following the initial complaint of your clients, negotiations have also been opened with the owner's agent with a view to preparing a landscaping scheme for the area (including retention and new planting of vegetation) to be secured by means of a Section 106 Agreement. The solicitor for the council has prepared a skeleton form of agreement and we await the draft landscaping scheme whereupon we will forward you a copy."
"At the time of the application and determination by the council the land was always entirely screened from both High House Farm [that is the claimants], High Cottage [that is another listed building nearby] as well as from the said Wreningham Road. This was recognised as an important factor in the acceptability of the proposed siting of the building in the Design and Access Statement dated 29 September 2010 which was submitted by the owner in support of the application and which stated that -
'the landscape and the setting of the building within the landscape forms an important part of the application and one of the reasons for this particular site being considered appropriate. The building is screened on three sides from the existing residential properties. It is open on the southern side of our clients' farm land. The height of the existing trees and hedging is high enough to make the building almost invisible from the north, east and west.'
The said Design and Access Statement goes on to identify as one of the reasons for the chosen site for the building that was mentioned that with the landscaping it would be well screened and will be barely visible from the road or from the neighbouring houses."
This is said:
"The existing screening forms an important part of the justification for the council's own conservation and design officer deciding to support the granting of approval and in his notes, following a site visit on 18 November 2010, he stated that the two nearby listed buildings situated some distance away from the new building would be largely screened off from key views by existing mature vegetation around the site although during winter months the building would be more visible as more of the trees are deciduous. However this will not have an adverse impact on key views of the building."
"Had the members of the defendant's planning committee known that the existing trees and other vegetation were to be removed it is at least possible, and in my opinion likely, that they would have reached a different conclusion on the acceptability of the siting proposal. This would have led to the planning committee either refusing to give prior approval resulting in the interested party having to relocate the barn to another part of his land or requiring much more in terms of screening than the defendant has been able to secure from the interested party voluntarily since these proceedings were commenced."
"E22 The arrangements do not impose full planning controls over the developments to which they apply - those developments remain 'permitted development' under the General Permitted Development Order. The principle of development will not be relevant providing the Order conditions are satisfied, nor will other planning issues. When details are submitted for approval under the terms of the Order, the objective should be to consider the effect of the development upon the landscape in terms of visual amenity, as well as the desirability of preserving ancient monuments and their settings, known archaeological sites, listed buildings and their settings ..... Details should be regarded in much the same light as applications for approval of reserved matters following the grant of outline planning permission."
So far so good. It is clear that that is indeed what the council did and what the officer's report covered.
"Subject to the normal criteria governing the use of conditions in planning permission, conditions may be imposed when approval is given ..... "
That sentence is clearly misleading and inappropriate because it is not for the council to impose conditions independently of those which automatically flow from the terms of the GPDO which I have read. It is for the council to require the necessary details and to approve those details. When the council approves those details they remain in being - subject to a power to amend in writing if application is made - and run with the land forever; indeed the words "in perpetuity" is used in condition 2 that was in fact proposed.
There might also be differences of detail. Although both involve approval of siting, design and external appearance, in the case of outline planning permission there was likely to have been an assessment of the general suitability of the site at the permission stage, leaving less flexibility on the reserved matters but a broadly similar approach was appropriate.
Ruling on Costs