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
		13 January 2015

JUDGE JARMAN QC: 1. This is an application for permission to appeal under section 289 of the Town and Country Planning Act 1990 a decision of a planning inspector appointed by the Secretary of State for Communities and Local Government, who determined an appeal made by the appellant under section 174 of the Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) against an enforcement notice issued by Epping Forest District Council.

1. The notice is dated 3 February 2014 and specified the alleged breach of planning control as follows:

"Without planning permission: the erection of a building for use as a residential annex forward of the principal elevation of the main dwelling shown hatched black on the attached plan."

2. The notice required the removal of the unauthorised extension and concrete base and of all resulting debris within three months.
3. The appeal before the inspector was made on grounds (a), (b), (e), (f) and (g) of section 174(2) of the 1990 Act, namely:

"(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 or, as the case may be, the condition or limitation concerned ought to be discharged;

(b) that those matters have not occurred;

...

(e) that copies of the enforcement notice were not served as required by section 172;

(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 any such breach;

(g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed."

4. The inspector held a site view on 20 October 2014. His decision was dated 7 November 2014. His decision was made on the written procedure process. He corrected, as he called it, the notice by striking out the words "for use as a residential annex" and he dismissed all the appeals. The application for permission to appeal that decision is made on seven grounds. I shall deal with them in the way in which they were advanced before me. By way of background it is accepted by the parties that the extension in question is not permitted development as it is forward of the front elevation of the main dwelling.
5. Relevant to the matters before the inspector was a certificate of lawful use, which was dated May 2013. That certificate related to two uses: first, the change of use of an existing garage conversion partly to residential use, and secondly, a new garage lock. The first ground which was advanced before me (ground 6) referred to the Green Belt because the development was within that belt. Reference was made to the National Planning Policy Framework, which was in force at the time, paragraph 89 of which provides:

"A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are:

...

• the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building;"

6. That exception was mentioned in the appellant's agent's documents, which were before the inspector. It has to be said it was not in terms stated that the extension in question was not disproportionate, but that must be the inference from the references to the exception.
7. The inspector had regard specifically to the National Policy Guidance in paragraph 14 of his decision letter as follows:

"14. Under national policy guidance and the development plan for this area, the construction of new buildings in the green belt is 'inappropriate development', apart from specific exceptions such as agricultural need which do not apply here. One of the purposes of green belt policy is to preserve the openness of the land. Inappropriate development is by definition harmful to the green belt and should not be approved except in very special circumstances."

8. Miss Thomas, on behalf of the appellant, submits that the Inspector did not have regard to whether this extension was a disproportionate addition over and above the size of the original building so as to come within one of the exceptions.
9. In dealing with decision letters both parties referred me to authority and, in particular, South Bucks District Council & Or v Porter (No 2) [2004] UKHL 33, 1 WLR 1953 in which Lord Brown, at paragraph 36 in the well-known passage, said this:

"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.

11. Miss Thomas says that there is such a substantial doubt here as it is unknown precisely why the inspector said that the exception in question did not apply. It is true that under paragraph 14 he did not expand on those reasons. However, later on in the decision letter he deals with a fall-back argument related to the:

"...certificate of lawfulness in July 2013 for: 'a new outbuilding and to provide a two bedroom residential annex within part of the existing 'L' shape outbuilding to be used ancillary to the main dwelling house."

10. He came to the conclusion that the fall-back argument is weak for three reasons. I shall return to these because these also found another ground of potential appeal.
11. The second reason given was this:

"20, Secondly, the unauthorised building is a significant addition to the size of the previously existing L-shaped structure and it affects the openness of the green belt. t is inappropriate development in the green belt, so by definition (under long-established national and local policies) it harms the green belt, and it is necessary to find very special circumstances to justify granting planning permission. The fact that the council have accepted the lawfulness of other development at Hastingwood Farm may be unusual, but does not amount to very special circumstances, since this is the sort of argument which could be repeated not only at this site but at other locations in the green belt, In any event, even assuming that existing garaging were to be converted into a dwelling in line with the past certificate of lawfulness, the overall effect on the openness of the green belt would be less than leaving the unauthorised building in place."

12. Miss Thomas submits that "significant" in this paragraph (namely "significant addition") does not necessarily amount to a disproportionate addition within the meaning of the national policy. I accept that to an extent, but in my judgment it is tolerably clear, on the reading of the decision letter as a whole, why the inspector did not regard any of the exceptions in the national policy to apply in this case and. Having regard to the plans and the fact that the inspector conducted a site view, that was a consideration to which he was entitled to come. Accordingly I do not grant permission on ground 6.
13. The next ground in the skeleton argument related to the inspector's conclusion as to an ancillary dwelling. He dealt with that in paragraph 13 as follows:

"13. At this point I think it is necessary to clarify one matter. The appellant (through his agent) refers in his statement to what he calls an "ancillary dwelling". This expression is a contra diction in terms. The relationship between Mr Pitt and the current occupiers does not affect the fact that what has been created here is a two-bedroomed dwelling with full kitchen fittings, a living area and two bathrooms. The building is laid out with all the facilities of an independent, self­ contained dwelling and the available evidence indicates that the building is used as such. 1 Indeed, the independent nature of the occupation of this dwelling is shown by the claim made in support of ground (e) that copies of the enforcement notice should have been served on the occupiers of the dwelling, which indicates to me that their day-to-day living pattern is not as part of the same household as occupies the original farmhouse."

14. Miss Thomas argued in the first place that this was a failure on the part of the Inspector to recognise, or take into account, the Case law and Practice Guide of the Planning Inspectorate upon such matters. It comes under a heading "Residential use as an Ancillary Use". At paragraph 254 this is said:

"254. Where a self-contained or virtually self-contained area within a planning unit provides all the facilities necessary for independent day-to-day living - for cooking, eating and sleeping - whether within a building, part of a building, caravan or other structure or a combination of these, and is used for that purpose, its use as someone's home or dwellinghouse would not normally be incidental or ancillary to some other main use of the land.

256. Similarly, a 'granny' annexe, even in a separate building in the curtilage of the "main" dwellinghouse, would normally be regarded as part and parcel of the main dwellinghouse use rather than ancillary to it. The judge in Uttlesford DC v SSE & While [1992]149 considered that, even if the accommodation provided facilities for independent day-to-day living it would not necessarily become a separate planning unit from the main dwelling; it would be a matter of fact and degree. In that case the accommodation gave the occupant the facilities of a self-contained unit although it was intended to function as an annexe only with the occupant sharing her living activity in company with the family in the main dwelling. There was no reason in law why such accommodation should consequently become a separate planning unit from the main dwelling."

15. I accept, to some extent, what Mr Williams for the defendant submits, which is that what the inspector was attempting to do at paragraph 13 was to give clarification for a phrase "ancillary dwelling" used by the appellant's agent. The term used by the local planning authority was "residential annex". There was clearly some confusion raised by the use of these terms and that, it seems to me, was why the inspector was seeking to clarify the matter. However, Mr Williams accepts that both parties appeared to proceed on the basis that the residential use, which was taking place in the extension, was ancillary to the residential use in the main dwelling. The inspector disagreed with that.
16. In my judgment, it is understandable why having gone on a site visit he should come to that conclusion on the evidence before him. However, I am troubled with the fact that the inspector does not appear to have given the parties a further opportunity to deal with this issue if he was going to take a different view. This was not how the matter was clearly put in the grounds of appeal, but Miss Thomas did cite this in her skeleton argument and developed it orally before me.
17. Mr Williams dealt with the matter and did not object to having to do so. He submits that it was immaterial why the inspector was dealing with it in this way. There is no suggestion that his conclusion in relation to self-contained dwellings being used as such impacted upon the central issue before him, which was whether there was special consideration for allowing this construction of the extension in the Green Belt. There may be much force in that submission, however the threshold at this stage is a fairly low one, namely whether it is arguable that there was some procedural defect by the inspector not allowing the parties to deal with this issue if he was going to take a different stance to the parties. On that ground, and to that limited extent, I would give permission.
18. The next ground (Ground 1) is that there was a failure of breach of natural justice in that the inspector substantially prejudiced the appellant by unilaterally going behind an agreed fact, namely the extent of the curtilage to the main dwellinghouse, and failed to provide any opportunity to answer that new issue. Again Mr Williams accepts that there was an agreed basis, or there appeared to be an agreed basis, that the extension was part of the curtilage. However, he submits that the inspector did not come to a different conclusion. What the inspector was doing was referring to the fall-back position. At paragraph 17 the Inspector said this:

"17. Part of the appellant's case relates to what might be called the "fall-back position". The council granted a certificate of lawfulness in July 2013 for: 'a new outbuilding and to provide a two bedroom residential annex within part of the existing 'L' shape outbuilding to be used ancillary to the main dwelling house'. The appellant has argued that this proved several matters - that all this area is within the curtilage of the main house, that the original garage block can be converted into an ancillary dwelling, and that a further garage block could be constructed just south of the unauthorised building, This further garage block has in fact been built, and an area around it has been recently surfaced with shingle."

19. The inspector then went on at paragraph 19 to say that in his judgment the fall-back argument was weak. He gave three reasons:

"...First, a certificate of lawfulness for a proposal only certifies that on the date of the application, the development specified would have been lawful. Circumstances can change ....

20, Secondly, the unauthorised building is a significant addition to the size of the previously existing L-shaped structure and it affects the openness of the green belt."

20. I have already quoted in full that paragraph:

"Thirdly, there appears to be a repeating sequence of development at Hastingwood Farm, involving the construction of buildings or conversion of buildings into dwellings, with what in my judgment is doubtful justification relating to the extent of the curtilage of the original farmhouse and to the use of the buildings,2In this green belt location where a strict control over development is appropriate, a failure to apply the 'very special circumstances' test would be liable to encourage continuation of this sequence."

21. He then sets out the concept of the curtilage of the building in a footnote, the gist of which, he says, is:

"...the curtilage of a building is a small area, immediately around the building and usually enclosed with it, which serves the purposes of the building in some necessary or useful way."

22. Miss Thomas accepted that that was a fair summary of the law.
23. In my judgment Mr Williams's submissions on this point are to be preferred. In my judgment, the inspector was not saying that he disagreed with the curtilage position reached by the parties, he was expressing the judgment, in respect of the fall-back position, that there was doubtful justification. He was expressing a planning judgment, which, in my judgment, he was entitled to express, that the fall-back argument was weak. He did not reject it. It was a question of what was the proper weight to apply to that argument. Mr Williams took me to documentation from the appellant's agent before the inspector, which made it clear that it was from the certificates that the fall-back argument arose. In my judgment that ground is not arguable.
24. The next ground (Ground 2) is that the inspector unilaterally varied the terms of the enforcement notice and failed to consider whether in respect of ground A that had caused injustice to the appellant. That is a requirement of section 176 of the 1990 Act, which provides:

"On an appeal under section 174 the Secretary of State may—

(a) correct any defect, error or misdescription in the enforcement notice; or

(b) vary the terms of the enforcement notice,

if he is satisfied that the correction or variation will not cause injustice to the appellant or the local planning authority."

25. Again Mr Williams took me to the documents from both parties before the inspector, which indicated that the local planning authority made the point that the terms of the notice dealt with the construction of the extension as a residential annex. What the appellant's agent was saying was that that was not correct. The agent was asserting that the extension had been made as a garage and the use, some time later, converted to residential use.
26. In response to that the local planning authority specifically invited the inspector in writing to alter or vary the description in the notice by deleting the words which the inspector eventually deleted. The agent responded point-by-point to that statement in a letter dated 7 May 2014. The agent dealt, in particular, with the paragraph in which the local planning authority raised this issue, but did not take any issue with what was set out in the local planning authority statement, and furthermore did not set out any alleged prejudice. In my judgment the inspector was entitled to deal with this matter on the basis of the written evidence before him and that he did. There is nothing in this ground.
27. Ground 3 suggests that the inspector erred in law in rejecting the existence of a lawful fall-back to provide a further Class E garage in the curtilage of the dwellinghouse. I have already dealt with this and, in my judgment, the inspector did not reject the existence of the fall-back.
28. Ground 5 says that there has been a further breach of natural justice in that the inspector unilaterally raised, as a reason for rejecting the fall-back position, that the planning unit might become a mixed use as opposed to a single primarily residential use. This was dealt with in paragraph 22 of the decision letter where the inspector says this:

"22, On the subject of repeated development, it is suggested for the appellant that: "we are dealing with a cluster of ancillary domestic buildings...such a cluster can be replicated or constructed as individual buildings as many times as the appellant considers appropriate", that belief is flawed in several ways, as should be apparent from my comments about points of law relating to the GPD0,3."

29. There is then a footnote which say this:

"Quite apart from the definition of curtilage, a "requirement" under Class E of Part 1of Schedule 2 of the GPDO for an outbuilding to be provided for a purpose incidental to the enjoyment of the dwellinghouse as a dwellinghouse has to be a reasonable requirement, and not merely be a matter of whim. There is a limit to the extent to which vehicle storage, for example, could be regarded as incidental within the meaning of Class E before the use of the planning unit as a whole becomes a mixed use."

30. Again Miss Thomas accepted that that was a fair summary of the law. Again I prefer Mr Williams's submissions. This formed no part of the inspector's decision. He was pointing out that there must be a limit. He was not saying that that limit had been reached. Again that ground, in my judgment, is not arguable.
31. The final ground, therefore, is ground 7, which is that the inspector failed to consider whether the personal circumstances of the appellant's son and his girlfriend, then pregnant, were special factors to weigh in the planning balance in favour of allowing the extension to be retained as a residential annex. Mr Williams took me to the documents submitted by the appellant's agent to the inspector, which showed that the reasons put forward for wishing accommodation for his son and daughter were put on a somewhat different basis, and relied upon the appellant's own circumstances and his living arrangements within the main accommodation.
32. At paragraph 16 the inspector dealt with this need and said this:

"Initially the alleged need was evidently to accommodate his adult children on their return from university or from abroad. From the documentary evidence, I am aware of family circumstances which could explain why Mr Pitt wanted to provide living accommodation for his children not in the original farmhouse; but a want or desire of this nature is not a 'need' from a public interest viewpoint; and anyway that was some time ago. This argument has not featured as a major part of the appeal case and it is not clear why any such need which now exists could not be met elsewhere. The claimed need is unconvincing and does not amount to very special circumstances."

33. It does appear that the inspector was aware of the situation of the appellant's son's girlfriend because he mentions it in dealing with human rights grounds at paragraph 25. On the evidence put before him, in my judgment, the inspector was entitled to deal with that in the way that he did and again this ground is not arguable. Therefore, apart from the one fairly narrow basis on which I do give leave, I would dismiss all the other grounds.

JUDGE JARMAN QC: How long is this hearing going to take?

MISS THOMAS: I think a day is still fair for it including judgment.

MR WILLIAMS: Potentially including judgment one would hope we would get it in half a day, but possibly a day with judgment.

JUDGE JARMAN QC: Are there any other directions we can usefully deal with?

MR WILLIAMS: There are two points, if I may. I entirely apologise, as it is my fault, I had not intended to convey the concession that the local planning authority approached the use of ancillary residential use. I would not want that to bar any argument that is made by the Secretary of State on the full appeal.

JUDGE JARMAN QC: You did not, to be fair. You dealt with the issue as between ancillary dwelling and residential annex.

MR WILLIAMS: Just to make that absolutely clear to my learned friend. I do not make any criticism of the ground not being fully encapsulated, but I wonder whether it would be appropriate for a ground which encapsulates the basis on which you granted permission to be formulated?

JUDGE JARMAN QC: I wondered that. Miss Thomas, is there any difficulty about that?

MISS THOMAS: I could think about that and formulate it.

JUDGE JARMAN QC: When can the amended ground on which permission is given be filed and served?

MISS THOMAS: That can be done within 14 days.

JUDGE JARMAN QC: Amended grounds on which permission is given shall be filed and served within 14 days?

MR WILLIAMS: My Lord, I wonder whether that should be agreed with the Secretary of State such that if there is (I do not think this is likely) any concern about it we could refer it to this court?

JUDGE JARMAN QC: Agreed, if possible. Thank you. Any other directions?

MR WILLIAMS: I would ask that the costs are reserved. Six of the seven grounds are knocked out and that no doubt would form the basis of the costs application before the hearing.

JUDGE JARMAN QC: Do you wish to object to that, Miss Thomas?

MISS THOMAS: Yes I think, as with all these things, it is incumbent on me to have drafted all the flaws that I thought amounted to grounds of appeal. I have been successful today and therefore I think costs should be in the cause [?].

JUDGE JARMAN QC: It was listed for three quarters of an hour, it has taken the better part of a day.

MISS THOMAS: That may be down to the fact, I have to say, that because this was listed at quite short notice there was not really the opportunity to take it out of the list. At the end of the day I have tried to be succinct and produce a skeleton, but there were seven grounds and it is incumbent upon me to put --

JUDGE JARMAN QC: You can make those arguments to the trial judge. I think he or she will be in a better position to deal with these costs than I am. I am going to reserve the question of costs to the trial judge.

MR WILLIAMS: I do not know whether you want to make directions in relation to the skeleton argument. I think off the top of my head the usual provisions are 21 days or 14 days. I wonder therefore whether it is worth making a note for the skeleton arguments 21 days or 14 days before the --

JUDGE JARMAN QC: What do you suggest?

MR WILLIAMS: That 14 and 7 may be better.

JUDGE JARMAN QC: Then 14 and 7 days. Would someone kindly draft a minute of the order and let the court have it? Are there any volunteers?

MISS THOMAS: I will do that.

JUDGE JARMAN QC: Thank you. Do we need a first available date listing?

MR WILLIAMS: Would it be possible to put that in the order simply so one can check one's diary?

JUDGE JARMAN QC: To be listed for one day. Is there anything more to be done about bundles?

MISS THOMAS: No, I do not believe there is anything else to go in the bundles. We knew there would be a new index reflecting the additional pages that were in there.

JUDGE JARMAN QC: Would it not be wiser to compile a fresh bundle because I am not giving you permission on some of the grounds and the bundle is going to be much narrower?

I will say parties to liaise and file a bundle agreed, if possible, limited to those documents necessary for the amended grounds. Is there anything else?

MR WILLIAMS: No, my Lord.

MISS THOMAS: No thank you, my Lord.

JUDGE JARMAN QC: Thank you very much.