QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
(SITTING AS A DEPUTY HIGH COURT JUDGE)
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT|
|ROYAL BOROUGH OF WINDSOR AND MAIDENHEAD||Respondents|
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Mr C Buttler (instructed by the Treasury Solicitor) appeared on behalf of the First Respondent (Mr C Zwart appeared for the read out judgment only)
The Second Respondent did not attend and was not represented
Hearing date: 12 December 2012
THE SECOND RESPONDENT DID NOT ATTEND AND WAS NOT REPRESENTED
HEARING DATE: 12 DECEMBER 2012
HTML VERSION OF JUDGMENT
Crown Copyright ©
THE DEPUTY JUDGE:
"no repairs or maintenance of vehicles, plant and equipment shall be carried out in the open within any part of this permission" (condition 5).
(a) whether the proposal is inappropriate development for the purposes of Planning Policy Guidance: Green Belts (PPG2) and development plan policy;
(b) the effect of the development carried out upon the openness of the Green Belt and the purposes of including land in it;
(c) whether appropriate provision is made towards infrastructure, services, facilities and amenities made necessary by the development; and
(d) if the development is inappropriate, whether the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify the development.
"...the appellant's evidence is that the end four bays were in need of total rebuilding and the opportunity was taken to provide a more efficient space by raising the height by some 0.5 m and extending to the rear by about 2.5 m. The total increase in the net internal floor space is agreed by the parties to be 40 square metres."
"17 I agree that the evidence indicates that, not unlike other buildings, repair and maintenance of the fabric was required. However, although I can see that it was convenient while effecting those repairs to increase the height of the building to accommodate the higher door needed to allow entry the particular vehicles, there is no evidence (such as a lack of alternative suitable premises) as to why it was necessary to do so. I therefore attach little weight to this consideration.
18 I accept that there is no evidence that the appellant sought to depart from the approved uses on the site. However, compliance with an extant planning permission is not a matter that I believe should be considered as justifying the development.
19 The appellant also draws attention to the small overall increase in floor space and the negligible, if any, impact on openness. However, this is a matter that I have already addressed. No other considerations have been put forward by the appellant."
"22 The gist of the appellant's case on this ground is that the complete demolition of the buildings is excessive when four units have been accepted by the Council since 1993. The maximum requirement should be to return to the position in 2007. To do otherwise would deprive the appellant of valuable structures and space that he lawfully possessed before the recent works took place.
23 While I appreciate the position that the appellant is now in, he chose to demolish the previous structures and then erect the new buildings that are the subject of the notice. My understanding is that the purpose of the Council in issuing the notice is, in part at least, to remedy the breach of planning control. I have set out under my consideration of the ground (a) and s 78 appeals that the erection of these new buildings in the Green Belt is not justified by those special circumstances. The Council's purpose therefore can only be achieved by the requirements set out in the notice rather than by some form of under enforcement as suggested which might be appropriate to remedy an "injury to amenity" purpose. The appeal on ground (f) therefore fails."
STATUTORY BACKGROUND - ENFORCEMENT APPEALS
"An appeal may be brought on any of the following grounds-
(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted...
(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by such breach."
"Where an appeal against an enforcement notice is brought under section 174 and-
(b) that land is in England and the statement under section 174(4) specifies the ground mentioned in section 174(2)(a),
the appellant shall be deemed to have made an application for planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control."
"A person who gives notice under subsection (3) shall submit to the Secretary of State, either in writing when giving the notice or within the prescribed time, a statement in writing ...
Specifying the grounds on which he is appealing against the enforcement notice."
"(1) Where the Secretary of State gives a decision in proceedings on an appeal under Part VII against an enforcement notice the appellant or the local planning authority or any other person having an interest in the land to which the notice relates may, according as rules of court may provide either appeal to the High Court against the decision on a point of law or require the Secretary of State to state and sign a case for the opinion of the High Court.
(6) No proceedings in the High Court shall be brought by this section except with the leave of that Court..."
THE GROUNDS OF CHALLENGE
The ground (f) appeal
"It will be seen that the requirements of the Notice were expressed in paragraph 5 as complete demolition of the buildings and removal of all materials used to construct them. This relates to the units at the western end of a larger block -- see Notice Plan.
It will also be noted that the allegation relates to 'rebuilding and extension'. The earlier application covered re -- building and enlargement -- altered by the LPA to rebuilding and extension.
The appellant will show that the units were in place in 1993 and becoming dilapidated by 2007. He determined to replace them and proceeded to raise the roof height at the front to permit the introduction of roller shutter doors that would permit entry of a 'Transit' sized van, where previously only cars or light vans could be driven in. Also, the rear wall of the block ran at an angle to the rear boundary of the land. This was changed to provide rear walls to the units that are at right angles to the division wall making the interior space more regular. The additional floor area was shown in the application plans ... as adding 40 m² overall. ...
Under this ground of appeal the appellant will argue that the most LPA can properly complain of is the additional space is created. Therefore to completely demolish and clear the site is excessive in the extreme as 4 units have been accepted without let or hindrance by the LPA since 1993. The maximum that should be required of him is to return to the position in 2007. Otherwise the compliance required deprives him of valuable structures and space he was lawfully in possession of before commencing the recent works. It is quite unreasonable of the LPA to issue the Notice in these terms when all the facts were ready before them in connection with the application referred to above."
"The appeal is also under S.174(2)(f) wherein it appears to be agreed that the buildings as referred to in the Enforcement Notice require permission, but that there is a 'fall back' position to the floorspace, height and position of the former buildings. This is not agreed in this instance, as it is the buildings as existing that are unauthorised, and in the Council's opinion, should be removed."
"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 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 aspirations. 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."