QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
|THE QUEEN ON THE APPLICATION OF PITT||Appellant|
|SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENT||First Respondent|
|EPPING FOREST DISTRICT COUNCIL||Second Respondent|
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr R Williams (instructed by Government Legal Department) appeared on behalf of the First Respondent
The Second Respondent was not represented, did not attend
Crown Copyright ©
2. Permission was granted by His Honour Judge Jarman QC on 13 January 2015. The judge granted permission limited to ground 4 subject to amendment to reflect the basis on which the judge granted permission. As amended, the ground challenges the finding by the Inspector that the extension comprised an independent dwelling unit contrary to what was common ground between the appellant and the second respondent (the council) that it was accommodation ancillary to the established residential use of the land. In the circumstances Miss Megan Thomas, who appears for the appellant, submits that the appellant was not given any fair opportunity to deal with the point so that the decision was in breach of natural justice.
"1.3 The council officers accepted that the area around the garage historically formed part of the curtilage of the property and that the first garage block was erected as 'permitted development' fully within the terms of the then GPDO and immune from enforcement action."
The grounds then made reference to the lawful development certificate and continued:
"1.6 This certificate confirms that the council have now accepted that this part of the appellant's landholding falls within the curtilage of the dwelling for the purposes of erecting outbuildings ancillary to the domestic use of the main dwelling, Hastingwood Farm. This illustrates an important, logical and viable fall-back situation in the event planning permission is not granted for the retention of use for the building the subject of this appeal.
1.7 It should be stressed from the outset that the appellant did not intend to contravene planning legislation by commissioning what turned out to be unauthorised development on his landholding. The initial extension to the original garage/car store building was to meet a known need for further garage accommodation. The appellant has a large collection of vehicles, mainly classic cars. The subsequent conversion of this building arose from a further need for ancillary residential accommodation for the appellant's adult son and daughter."
" No planning purpose is served by demolishing the extension on the existing outbuilding (the original garage block) when almost the exact same form of development can be undertaken under permitted development rights within close proximity of the unauthorised extension."
It continued at paragraphs 2.7:
" Whilst it could be argued that the removal of this extension will facilitate in some way in assisting to safeguard the countryside from encroachment (the third purpose), this has little weight given that a similar-sized building or even larger, subject to being within the appropriate limitations of the GPDO, can be erected a few metres from the site.
2.8 It also must be borne in mind that we are dealing with a cluster of ancillary domestic buildings of appropriate scale and character to this rural area. Such a cluster can be replicated or constructed as individual buildings as many times as the appellant considers appropriate provided they are sited to the side of the appeal building and behind the front of the main dwelling subject of course to having a purpose associated with the domestic use of the site and within the permitted development limits regarding height etc, and also not exceeding fifty per cent of the curtilage. It is considered only a significant amount of new build will have any impact on public views or the rural character of this area so further buildings in the same location behind the foremost part of the main dwelling is all permitted development as proved by the certificate."
" Insufficient time has been given to enable the appellant to convert the other garage to provide this essential ancillary dwelling facility. It is considered that at least nine months would be an appropriate period in which to plan, organise and execute the conversion works. Given the modest impact of this extension on the amenity of the area, its continued presence for a few more months above that suggested by the council would not cause material harm to any interest of acknowledged importance."
The Planning Inspectorate directed that the appeal should proceed by written representations.
" It may be noted that the application covering letter specifically raised the issue of what planning purpose would now be served by removal of the unauthorised development given that it could be replicated a few metres away ..... It is pertinent to note that nowhere in the officer's analysis is the matter of the material and feasible fall-back situation considered. This, in my opinion, was a very special circumstance which should have been given significant weight but according to the report was not even considered."
"It is submitted that the aims and purposes of the Green Belt and any harm to the nature and character of the Green Belt must be considered against this fall-back position which proves, firstly, that this area falls within the curtilage of the dwelling for the purposes of 'PD' rights under the GPDO with the logical assumption that further outbuildings can be erected in the immediate area subject to compliance with the limitations regarding such buildings in the GPDO and, secondly, the existing garage building can be converted into an ancillary dwelling."
Paragraph 2.11 of the statement pointed out that "the now established fall-back position" was not considered in the report recommending enforcement action. At paragraph 2.12 the statement of case continued:
" As the new garage building, the subject of the certificate application, was likely to be either under construction or recently completed by the time the inspector has his/her inspection of the appeal site, this is because there remains a requirement for additional garages to serve the appellant's personal needs and some of his extensive collect[ion] of vehicles are kept elsewhere. But the bundle of vehicle logbooks at appendix E illustrates his current daily fleet."
That referred to the lawful development certificate new building and suggested that that was needed even with the retention of the unauthorised extension, the subject of the enforcement appeal.
" No explanation is given of why the existing ancillary accommodation on the site could not be used or why space in the main dwelling was not available. These grounds do not meet the criteria for very special circumstances."
It then referred to the fall-back argument:
"5.6 He further asserts that there is no harm caused to the Green Belt by the scheme and there is no purpose served by demolishing the building when something similar can be erected close by under the permitted development rights."
The statement returned to that at paragraph 5.9:
" It is accepted that the appellant can erect a similar building in the curtilage of the dwelling under the current Permitted Development Regulations. However this would not cover a residential use of such a building. It would need to be subject to a planning application and could then be assessed by the NPPF and Local Plan Policies. Therefore, the fall-back position as argued by the appellant is not as clear-cut as he asserts. It is his case that the authority has no control over what can be erected under the Permitted Development rights. It does have control of those developments not so covered. It has that control for a reason. In this case the scheme as built causes unacceptable harm to the Green Belt, and it is clearly in the public interest to act in this case."
"9 The authority is of the opinion that three months is a realistic timescale to remove the fittings from the building and demolish it."
" The term 'substantial increase in the amount of built form on the site' is meaningless having regard to the fall-back position and also taking into account the amount of additional development that may legally be erected behind the main building line of the main dwelling in this part of the site. Indeed, it could be the whole of this area as it would not be seen fit to build in the curtilage of the Hastingwood Farm dwelling. The existing building, as extended, would have no more impact on the openness of the Green Belt than that alternative fall-back possibility."
It continued at paragraph 5.9:
" The council seems to be mixing up the concept of ancillary accommodation as opposed to developing an independent separate dwelling. The appeal proposal is for ancillary accommodation by way of conversion which, as a fall-back, can be provided in the adjoining garage building as per the fall-back certificate determination. The unacceptable harm has not yet been qualified to any material degree as compared to a fall-back situation. In cases such as this a commonsense approach is required."
In the conclusion it is said:
"Indeed, they have failed to have any regard to a feasible fall-back situation which was illustrated in the certificate approval."
The Decision Letter
"11 Under this ground, planning permission is sought for the development enforced against. The main matter of dispute is whether the unauthorised development harms the rural character of the area or conflicts with relevant planning policies having regard to the location of the site within the Metropolitan Green Belt.
12 Allowing for the correction to the allegation, the permission being sought is, in effect, for the retention of the building. The building is designed and used as a dwelling. Part of the appellant's case relates to a claimed requirement for the dwelling and for the alternative option of creating another dwelling. So it is sensible to treat ground A and the related deemed application for seeking permission for the retention of the building as it stands, that is to say as a dwelling.
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 contradiction 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-bedroom dwelling with a full kitchen facility, fittings, a living area and two bathrooms. The building is made up of all the facilities as an independent self-contained dwelling. The available evidence indicates that the building is used as such."
There is a footnote at that point which says:
"This is apparently not the only dwelling within the complex of buildings known as Hastingwood Farm in addition to the original farmhouse. The appeal only relates to the building shown on the enforcement notice plan."
Returning to paragraph 13, it continued:
"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 the day-to-day living pattern is not part of the same household as occupies the original farmhouse."
"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-shaped outbuilding for use ancillary to the main dwelling house. The appellant has argued that this proves several matters, that all this area was within the curtilage of the main house, that the original garage block can be converted into ancillary space and that a further garage block could be constructed just south of the unauthorised building. This further garage block has in fact been built. An area around it has been recently surfaced with shingle.
18 The thrust of the appellant's contention here is that no useful purpose would be served by requiring the demolition of the unauthorised building. The appellant has argued such a step would have no material impact on public view or perception of the owner's character and that whether the unauthorised development remains or whether - what the appellant has called - the transfer of the ancillary residential use is implemented would have no impact on the purposes of Green Belt policy."
"19 In my judgment the fall-back argument is weak for three reasons. First, the 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 and various changes in the layout and use of the land at Hastingwood Farm appear to have occurred recently.
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. It is inappropriate development in the Green Belt so, by definition, under long established national and local policies, if harm is caused, 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 other locations in the Green Belt. In any event, even assuming the existing garage 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."
" Thirdly, there appears to be a repeating sequence of development at Hastingwood Farm involving the construction of buildings or conversion of buildings into dwellings for 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 ..... "
There is a footnote referring to the Inspector's definition of curtilage. The paragraph continues:
"In 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.
22 On the subject of repeated development, it is suggested for the appellant that 'within the 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 and should be apparent from my comments about points of law relating to the GPDO."
In a footnote at that point he sets out the requirements of class E of the GPDO, commenting that there is a limit to the extent to which the vehicle storage 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. Returning to the main text of the paragraph:
" Moreover, as the council have pointed out, and setting aside issues relating to terms such as 'ancillary' and 'curtilage', permitted development rights to the erection of curtilage buildings would not cover a residential use."
" The essence of the appellant's case on this ground is that three months' compliance period is insufficient time to convert the other garage to provide this 'essential ancillary facility' and at least nine months would be an appropriate period.
31 I have used quotation marks in the previous paragraph since, as I have previously explained, in my judgment, the dwelling is neither essential nor ancillary. Moreover the suggestion that the garage will be converted into a dwelling reinforces the impression that at least some of the garaging was erected more because of a desire than a requirement within the meaning of class E of the GPDO.
32 The purpose of a compliance period is to enable the requirements of the enforcement notice to be carried out. A three-month period allows sufficient time for the steps specified to be undertaken. I conclude that ground G fails."
Legal Framework and Authorities.
"The provision within the curtilage of a dwelling house of -
(a) any building or enclosure, swimming or other pool required for a purpose incidental to the enjoyment of the dwelling house as such .....
is permitted development."
But, by E1 -
"Development is not permitted by class E if -
(a) the total area of ground covered by buildings, enclosures and containers within the curtilage (other than the original dwelling house) would exceed fifty per cent of the total area of the curtilage (excluding the ground area of the original dwelling house);
(b) any part of the building, enclosure, pool or container would be situated on land forward of a wall forming the principal elevation of the original dwelling house;
(h) it relates to a dwelling …;"
" The lawfulness of any use or operations for which a certificate is in force under this section shall be conclusively presumed unless there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness."
"253 The use of land for full residential purposes will not normally be ancillary or incidental to some other main use of the land. There may be some exceptions where an element of residential use can be regarded as ancillary without constituting a separate main use. It is most likely to arise that primary use is itself a form of residential use, like a pub providing accommodation for guests, a hotel or a hostel where staff or management would ordinarily be expected to live in. Alternatively, it could be argued in such cases that the residential use by staff is actually part and parcel of the main use of a hotel etc rather than simply ancillary or incidental to it.
254 Where a self-contained or virtually self-contained area in 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 combination of these, and is used for that purpose, its use for someone's home and dwelling house would not normally be incidental or ancillary to some other main use of the land.
256 Similarly, a granny annex, even in a separate building in the curtilage of the main dwelling house, would normally be regarded as part and parcel of the main dwelling house use rather than ancillary to it. The judge in Uttlesford District Council v Secretary of State for the Environment and White  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 facilities of a self-contained unit although it was intended to function as an annex only with the occupant sharing her living activity in company with the family in the main dwelling. There is no reason in law why such accommodation should consequently become a separate planning unit from the main dwelling. The fact and degree judgment must be made on the specific circumstances of the case. The key issue is whether a separate planning unit has been created. If an outbuilding with its living accommodation is part of the same land unit as the dwelling house and provided that the planning unit remains a single-family occupation, continues to function as a single household, no material change of use is involved."
"All cases in which principles of natural justice are invoked must depend on the particular circumstances of the case. I am unable my Lords in the instant case to generalise. I can only say that in my opinion in the circumstances I have outlined Fairmount has not had - in a phrase whose derivation neither I nor your Lordships could trace - a fair crack of the whip."
"55 The need to invite further representations in the interests of fairness is likely to arise very infrequently. The sequence of representations provided for in the regulations will normally be sufficient to achieve fairness. But the opportunity to make additional representations can and should be given if a new point is raised which the inspector ought to take into consideration and which cannot fairly be taken into consideration without giving such an opportunity. Whether fairness requires it depends entirely on the particular facts of the case."