England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/02/2015

The Honourable Mr Justice Cranston:

Introduction

1. In this judicial review the claimant challenges the decision of Stratford-on-Avon District Council ("the Council") to decline to determine her retrospective planning application. The Council claimed to act in accordance with section 70C of the Town and Country Planning Act 1990 ("the 1990 Act"). The claimant contends that the Council's decision under section 70C is flawed. There has been no previous case considering the ambit of this section.

Background

2. The claimant occupies Fox Farm, Bascote Heath, which lies in open countryside to the west of Southam, in Warwickshire. It extends over 3.2 hectares and consists of permanent pasture. There are a number of farm buildings, close to Welsh Road from which the farm is accessed. The farm is used for the claimant's equestrian business.
3. From 2004 the claimant has made a number of applications to the Council for planning permission. Five of them have been granted; in the main these concerned the use of the land for residential purposes. Three applications have been refused, one relating to extensions to a dwelling on the site, the other two concerning holiday accommodation.
4. The claimant is no stranger to enforcement action in relation to her occupation of Fox Farm. In 2005 an issue arose as to the stationing of caravans on the land and the sub-division of a dwelling to create two separate dwellings. Ultimately, an enforcement notice was issued in relation to the dwellings. It was complied with some time later. In 2006 the Council referred the claimant's tipping of work materials on the land to the Environment Agency, which prosecuted her and, on her pleading guilty she was fined £1250 at Rugby Magistrates Court. In April 2010, the Council prosecuted her at Leamington Magistrates Court for non-compliance with a planning contravention notice and in 2010 she was fined £250. Later in 2010 the Council became concerned about the change of use of the land and later issued an enforcement notice, with which the claimant complied.
5. In June 2008, the Council's planning manager, Clare Eynon and an enforcement officer, visited Fox Farm and took photographs showing the construction of a timber clad building with a new clay effect metal roof. In their view, the building was not, at that time, substantially complete.
6. In February 2009, the Council's enforcement officer visited the site and observed that the building was completed. On 8 September 2009, the Council served a planning contravention notice on the claimant in respect of the building, requiring answers to some 16 questions. The claimant did not respond within the 21 day time period. Having instructed a professional planning agent from DJC Associates, the claimant responded to the planning contravention notice on 21 January 2010 with a signed statement. Question 5 asked when residential use commenced for the two units comprising the building (called D and E); question 7, about the occupiers of the units; and question 13, when each unit was erected on the site. The claimant responded to question 5, in relation to units D and E with the date 1 September 2008. To questions 7 and 13 she replied that the relevant units (D and E) were occupied by members of her family and that the dates were August 2008 for the two.
7. The Council served an enforcement notice on the claimant on 19 June 2012. It alleged that, without planning permission, the claimant had erected a building in the position hatched black on the attached plan to provide two units of residential accommodation. The reasons given for issuing the notice were that the development was contrary to saved policies of the Stratford-on-Avon Local Plan (2006), STR.1, STR.4, COM.1, CTY.1, PR.1 and DEV.1. The enforcement notice required residential use of the building to cease and for it to be demolished. Under the notice, compliance was required within 9 months, in other words, by 20 April 2013. The notice set out in the Annex the right of appeal and drew attention to the effect of section 70C of the 1990 Act. The claimant did not appeal the enforcement notice.
8. The claimant applied for retrospective planning permission for the buildings as equestrian dwellings on 25 July 2012. The application was submitted on her behalf by DJC Associates. The covering letter referred to a report by Paul Rhodes, of Rhodes Rural Planning and Land Management which, the letter added, identified the need for two workers to live on the site.
9. After outlining the background and the claimant's business, Mr Rhodes's report stated that the reasons for the application were that the horses required daily monitoring, care and attention. During the breeding season the stock often required attention at short notice, and there were also emergencies and the need for security and bio-security. The report then referred to the National Planning Policy Framework ("the NPPF") and noted that Stratford-on-Avon's policy on agricultural workers' dwellings [CTY.6] had not been saved.
10. In its decision dated 14 August 2012 the Council declined to determine the application on the basis of section 70C of the 1990 Act.
11. In March 2013 the claimant lodged a second application for planning permission through Framptons, a planning consultancy. The application was for

"retrospective planning permission for the retention of two units of residential accommodation to serve the needs of the equestrian enterprise at Fox Farm with the accommodation subject to an occupancy condition".

Framptons stated that it considered the application to be materially different from that in the enforcement notice. The following month, the Council again declined to determine the application, invoking section 70C of the 1990 Act.

12. The claimant launched judicial review proceedings but these were compromised. The consent order of 26 February 2014 recorded the claimant's acceptance that section 70C was engaged, and the Council's acknowledgment that: (i) it failed to exercise the power under the section reasonably and in accordance with the relevant statutory purpose; and (ii) that it failed to give adequate reasons.
13. In re-determining for application, the Council agreed to consider and take into account Policy CTY.13, Equestrian Activities, if relevant. The consent order noted that the Council had obtained a report from an agricultural and equestrian consultant, about which the claimant had been ignorant until the pre-action protocol response. The report had advised that there was no need for additional accommodation at the site and that the existing accommodation met the needs of the equestrian business. The conclusion was disputed by the claimant.
14. The third application for retrospective planning permission, on 21 March 2014, was in the same terms as that quoted for the second application. In submitting it on the claimant's behalf, Framptons said in the covering letter that it was to be hoped that in consequence of its receipt,

"a decision to prosecute against non-compliance with the enforcement notice will be held over."

The application form itself stated that the building work had begun and was being completed on 1 January 2009. There was a detailed planning statement prepared by Framptons referring, in part, to policy CTY.13.

15. In a decision letter dated 4 April 2014, the Council declined to consider the application, citing its discretion under section 70C of the 1990 Act. It was not appropriate to determine the application.

"In making this decision, we have been mindful of the statutory purpose of the section to avoid applicants using the retrospective application process when they could and should have appealed the enforcement notice. In your case, the new application has not been made following pre-application discussions with the local authority and we do not believe it is a genuine attempt to overcome the previous planning objections that led to the enforcement notice. The relevant planning policy has not materially changed and the Council would still be considering whether to enforce against development of the type you have applied for in this location."

16. The decision letter was accompanied by an officer's report, which contained further reasoning. The report reiterated that if the claimant had wanted the planning merits to be considered it should have appealed the enforcement notice. It added:

"There has been no pre-application discussion on the merits of the development ahead of submitting the planning application. It is therefore hard to judge the applicant's motivation for making it; however, given that the notice now needs to be complied with in order to avoid criminal proceedings, it is likely that a strong motivation will be the applicant's desire to maintain occupation of the units, whilst avoiding further proceedings. The applicant may believe that submitting a planning application is likely to persuade the Council to put any further proceedings on hold whilst the planning merits are considered."

17. The report stated that the nature of the development in the application was largely the same as the matters in the notice, namely the construction of two residential units.

"The only difference is that the applicant states they are willing to accept a condition on any permission that would restrict occupancy to persons wholly or mainly employed in the equestrian enterprise at Fox Farm together with their dependants. Such a condition does not materially alter the residential nature of the accommodation and, as stated above, the development applied for forms part of the matters specified in the notice."

18. There was then a discussion of planning policy in the following terms:

"The enforcement notice was served in June 2012, shortly after the National Planning Policy Framework (NPPF) was published. Although the NPPF is cited in the reasons for serving the notice, it has progressively been given more weight since this time with regard to strategic housing policies. This is because the Local Plan policies on this subject, STR.1 and STR.4, are now out of date and the Council is unable to demonstrate a 5 year housing supply. I have therefore considered the development against the provisions of the NPPF and I remain of the view that its location away from shops and services would increase reliance on the private car to the detriment of the environment. This is not outweighed by any economic benefit, because an essential need for workers to be on-site in connection with equestrian activities has not been demonstrated. There is therefore no justification under Para.55 of the NPPF and similarly the development does not draw any support from Policy CTY.13 'Equestrian activities' of the Local Plan Review. The social considerations of the development are neutral. There has been no material change to policy in respect of the second reason for serving the notice, which related to the development detracting from the rural character of the area."

Statutory and planning framework

19. Section 70C of the 1990 Act provides:

"70C Power to decline to determine retrospective applications

(1) A local planning authority in England may decline to determine an application for planning permission for the development of any land if granting planning permission for the development would involve granting, whether in relation to the whole or any part of the land to which a pre-existing enforcement notice relates, planning permission in respect of the whole or any part of the matters specified in the enforcement notice as constituting a breach of planning control.

(2) For the purposes of the operation of this section in relation to any particular application for planning permission, a "pre-existing enforcement notice" is an enforcement notice issued before the application was received by the local planning authority"

Section 70C was introduced through section 123(2) of the Localism Act 2011, alongside section 174(2A) and (2B) relating to appeals against enforcement notices:

"(2A) An appeal may not be brought on the ground specified in subsection (2)(a) if—

(a) the land to which the enforcement notice relates is in England, and

(b) the enforcement notice was issued at a time—

(i) after the making of a related application for planning permission, but

(ii) before the end of the period applicable under section 78(2) in the case of that application.

(2B) An application for planning permission for the development of any land is, for the purposes of subsection (2A), related to an enforcement notice if granting planning permission for the development would involve granting planning permission in respect of the matters specified in the enforcement notice as constituting a breach of planning control."

20. Apart from section 70C, there are parallel tracks if an enforcement notice has been issued. The enforcement notice can be appealed, the appeal covering legality and planning merits: see section 174 of the 1990 Act. The effect of the appeal is to stop the enforcement process in its tracks (section 175(4)), so there can be incentive to appeal. There can also be an application for retrospective planning permission for the unauthorised development, which can also be appealed if refused.
21. In an illuminating article on the history of the relevant legal provisions, Professor Michael Purdue suggests that although an application for retrospective planning permission might appear unnecessary when the enforcement notice can be appealed, it might still be made for tactical reasons: [2012] JPL 795, at 795. Section 70C, he states, was directed at the problem of delay under the existing provisions. Of the situation where an application for retrospective planning permission is made where enforcement action has already been taken, Professor Purdue writes:

"The purpose must be to prevent a retrospective applications being made just to delay enforcement. It seems that if the service of an enforcement notice leads to a retrospective application being made, this can cause delay. This is because if there is an appeal against the enforcement notice (which is of course very likely) and the planning application is refused, the two appeals will normally be conjoined… However, the Government spokesman accepted when discussing this new power in s.123 [i.e. 70C], that it should not be used in the case of a genuine mistake when it had not been realised that the development was in breach of planning control or, as the Secretary of State for Communities and Local Government put it, is there to: "protect the gormless but deter the greedy"

Professor Purdue's analysis seems correct since, as Ms. Paul observed in her written grounds, Parliament amended section 174 of the 1990 Act at the same time to provide that, if a retrospective planning application has been made, but an enforcement notice has been issued before the time for making a decision has expired, there cannot be an appeal against the enforcement notice under section 174(2)(a). In other words, the applicant cannot have multiple 'bites at the cherry'.

22. As to relevant planning policies in this case, the presumption in favour of sustainable development in the NPPF is well known. For decision taking, this means approving development proposals which accord with the development plan without delay, unless material considerations indicate otherwise: para.14. Under the NPPF, housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites: para.49. Local planning authorities should avoid new isolated homes in the countryside unless there are special circumstances such as the essential need for a rural worker to live permanently at or near their place of work in the countryside: para.55.
23. The Council's planning policy CTY.13, Equestrian Activities, offers support for the development of, or an extension to, an equestrian establishment provided that there will be no significant adverse effects upon neighbouring properties on the character of the landscape or on features of acknowledged importance. The policy states that the utilisation of existing buildings and structures will be encouraged to reduce the amount of new building in the countryside, but where new structures are proposed, they should be located adjacent to existing structures wherever possible.
24. This is a cross reference in policy CTY.13 to policy CTY.6 on rural workers' dwellings, which however is not saved. It required that there be a clearly established functional need for such a dwelling, that the need be based on a full-time worker, or one primarily employed in the activity to which the application relates and that the need could not be met by an existing dwelling on the holding, or any suitable and reasonably available dwelling in the vicinity. Moreover, the dwelling had to be reasonably related to the functional requirement established and appropriate in scale to its setting and surroundings.
25. The commentary to policy CTY.13 states that it aims to provide a positive approach to equestrian activities and to ensure that the rural environment is respected. In cases where a new building is proposed, it should be situated where any visual effect can be mitigated and minimised and it will be necessary to prove that it is essential for the operation of the business. There may be cases, the commentary adds, where the functional need for a dwelling can be fulfilled by existing residential accommodation in the area.

The claimant's case

26. In cogent submissions for the claimant, Ms. Colquhoun challenged the Council's exercise of discretion under section 70C to decline to determine the application, under three heads: inadequate reasons; taking irrelevant factors into account or not taking into account relevant considerations; and failing to correctly interpret and apply planning policy. She first made submissions on the correct interpretation of section 70C. Its statutory purpose is not to prevent applicants using the retrospective application process when they could have appealed the enforcement notice. Nor is it designed to prevent a retrospective planning application being determined where a developer appeals an enforcement notice, notwithstanding that there may be delay because an adverse decision on the application can also be appealed. Ms. Colquhoun contended that it is not the purpose of the planning enforcement regime, nor is it the proper role of a planning authority, to prevent planning permission being granted for a development which can be shown to comply with the development plan, or which is acceptable in planning terms, even if that development is to a greater or lesser degree the subject of an enforcement notice.
27. In exercising its discretion under section 70C, Ms. Colquhoun then submitted that a planning authority should regard as a relevant consideration the differences between the development the subject of the enforcement notice and the development the subject of the application, and whether different considerations should be applied to the two developments. Once the determination in reality becomes one of planning judgement, i.e. whether the development would be acceptable in planning terms, in particular applying new policy considerations and new evidence compared with the enforcement notice decision, the obvious and reasonable conclusion is if to accept and determine the application, not to decline to determine it. By using section 70C, a local planning authority unfairly prevents an applicant from appealing a decision and all that remains is judicial review.
28. Ms. Colquhoun then turned to the application of section 70C in this case. She accepted that the claimant should have appealed the enforcement notice, but submitted that she had not done so because she was badly advised. The claimant did not accept and there is no reasonable ground to conclude that she is simply trying to find ways to avoid enforcement action. In any event her motives here are irrelevant. When the Council served the enforcement notice it was aware that the claimant ran an equestrian business, but did not consider the building against local plan policy CTY.13 and asserted that its purpose was not relevant. Yet when reaching its decision as to whether to allow the claimant's retrospective planning application, it referred in its decision letter to that policy and drew the conclusion that the evidence was not sufficient to demonstrate the need under it. There was no recognition first, that the Council did not decide to take enforcement action based on the provisions of CTY.13 and secondly, that that policy addresses equestrian development and dwellings in a different manner than other residential development. Its provisions were simply not applied in a correct manner.
29. In Ms. Colquhoun's submission, there were material differences between the development the subject of the enforcement notice and the development the subject of the retrospective planning application. The development's purpose was now set out in the application, to be enforced by means of a planning condition. The decision letter did not take this into account as a relevant factor. Moreover, the decision letter applied both the NPPF incorrectly. The Council acknowledged that its policies were out of date due to its five year housing land supply shortfall, but wholly failed to carry out the relevant exercise which should have lead to this development having the presumption in the NPPF applied in its favour. The decision letter also wrongly applied paragraph 55 of the NPPF policy relating to isolated new homes in the countryside to the units in the development which are very far from being isolated.

Discussion

30. Section 70C confers a wide discretionary power on local planning authorities to decline to determine a retrospective planning application for a development, subject to an enforcement notice. The legislative history of section 70C demonstrates that Parliament's intention was to provide a tool to local planning authorities to prevent retrospective planning applications being used to delay enforcement action being taken against a development. It seems to me that there is a legislative steer in favour of exercising the discretion, especially since an enforcement notice can be appealed and the planning merits thereby canvassed. Since delay is the bugbear against which the section is directed, a claimant's actual motives to use a retrospective planning application to delay matters is clearly a consideration in favour of a decision to invoke section 70C.
31. There may be factors pointing against exercising the discretion in section 70C to decline to determine an application which for a local planning authority to ignore would open their decision to a public law challenge. Examples might be where for legitimate reasons there has been a failure to appeal an enforcement notice and the development is plainly compliant with planning provisions (for example, they have been patently misapplied or have changed) or the development can readily be made acceptable by the correct planning conditions. However, section 70C is far from being a gateway for applicants to canvass the full planning merits: it is a discretion to decline to determine those merits, not a discretion to determine them.
32. In this case there is no real evidence that the claimant was badly advised at the time, or unaware of the opportunity to appeal the enforcement notice. There have been no statements from her in this litigation, except for a short statement on a matter of no direct relevance. In any event, the claimant's right of appeal and the time limits and grounds of appeal were clearly stated on the enforcement notice itself. The fact is that the claimant has a long history of engagement with the planning process, including with enforcement action. It was a reasonable inference for the Council to draw that the application for retrospective planning approval was to delay effective enforcement yet further, in relation to residential units which have now been there for over five years, without planning approval. The Council were entitled in coming to conclusions about the claimant's intention to take into account that she had not sought pre-application advice, and that her expressed wish, in the Frampton's covering letter of 21 March 2014, was that in light of the retrospective planning application any prosecution would be "held over".
33. But accepting the claimant's case on its face regarding bad advice, ignorance and innocent motive, I simply cannot conceive that the Council exercised its discretion in a manner challengeable on public law grounds. As to local policies CTY.13 and CTY.6 (not saved) in the development plan, the officer's professional opinion was that the building is a new building for residential purposes and is not the conversion of a previously existing building, that there was other available residential accommodation on the site, and that there was insufficient evidence to demonstrate an essential need for the two unauthorised units for residential accommodation for equestrian workers on site. The description of the development in the retrospective planning application was more specific than in the enforcement notice because it related to a particular type of residential accommodation, i.e. for workers in the equestrian enterprise, but in the officer's professional judgment the condition did not materially alter the residential nature of the accommodation. That, in my view, is the end of the matter; it was a perfectly proper exercise of planning judgement. So too with the NPPF: the decision letter and the accompanying report considered whether there had been any changes to policy since the enforcement notice was issued, noted that the Council gives the NPPF greater weight due to a lack of a demonstrable five year housing supply, but came to the conclusion, as a matter of planning judgment, that the breach does not constitute a sustainable form of development. That exercise of planning judgment is also unimpeachable.
34. The claimant's criticisms about the Council's reasons are, in my judgment, unarguable. She had the benefit not only of the decision letter but of the officer's report. As with other planning decisions, these were addressed to a "knowledgeable readership": see R (Trashorfield Limited) v Bristol City Council [2014] EWHC 757 (Admin), [13(vi)], as per Hickinbottom J. I accept Mr. Cairnes's submission that, given their focus, the reasons challenge constitutes in fact an attack on planning judgment.
35. The claimant raised a new point at the hearing that the enforcement notice should never have been issued since the building was immune from enforcement by virtue of the passage of four years: see section 171B(1) of the 1990 Act. The evidence to support this was in two recent witness statements by her son and daughter to the effect that the building was complete in 2008. I cannot accept that evidence. Ms. Eynon's planning judgment was that the building was not complete in June 2008, and that seems supported by the photograph taken during the visit: see paragraph [5] above. Moreover, as explained earlier in the judgment, the claimant herself signed answers to the Council's inquiries with the planning contravention notice that completion did not occur until 2009, within the four year period. The claimant has not discharged the burden of showing that the works were substantially complete more than four years before the enforcement notice was issued: Newtoreva-Goremsandu v Secretary of State for Communities and Local Government [2010] EWHC 793 (Admin)).

Conclusion

36. For the reasons I have given I dismiss this application for judicial review.