England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		23 June 2017

Rhodri Price Lewis QC :

Introduction

1. This is an appeal under section 289 of the Town and Country Planning Act 1990 against the decision of the First Respondent through his Inspector, Sukie Tamplin DipTP Pg Dip Arch Cons IHBC MRTPI, to dismiss the Appellant's appeals against two enforcement notices issued on the 18^th November 2015 by the Second Respondent Council as local planning authority for the area.
2. The land affected by the enforcement notices is at Little Harness Farm, Cowbeech Road, Rushlake Green, Heathfield, East Sussex.
3. The breach of planning control alleged in the first notice is "without planning permission, change of use of the Land from agriculture to a mixed use for agriculture and for stationing a caravan for residential purposes."
4. The first notice required the Appellant to stop using the land for the stationing of a caravan for residential purposes, to remove the caravan from the land, and to remove all material arising from compliance with the first two requirements. There was a 3 month period for compliance.
5. The appeal against that first notice was made on the grounds that planning permission ought to be granted in respect of the breach of planning control (ground (a) under section 174(1) of the 1990 Act), that that breach of planning control had not occurred (ground (b)), that if those matters had occurred they do not constitute a breach of planning control (ground (c)) and that the period for compliance specified fell short of what should reasonably be allowed (ground (g)).
6. There was no appeal in respect of that first enforcement under ground (f), namely 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 the 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.
7. The breach of planning control alleged in the second enforcement notice is "without planning permission, the erection of a freestanding timber decking area ("the Decking")" around the caravan.
8. That notice required the Appellant to demolish, dismantle and remove the decking from the land and to remove from the land all material arising from compliance with that requirement.
9. The appeal against that second enforcement notice was made on grounds (a), (c), (f) and (g).
10. The appeal was determined on the basis of written representations and a site visit that was made on the 13^th June 2016.
11. The Inspector issued her decision letter dated the 23^rd June 2016 in which she dismissed the appeals against both notices, upheld the notices and refused to grant planning permission.

The Legal Framework:

12. An appeal under section 289(1) can be only on a point of law, as the sub-section itself provides. The court may refuse leave to appeal where there is no arguable case: Kensington and Chelsea Royal LBC v. Secretary of State for the Environment: [1992] 2 P.L.R. 116. Mitting J granted permission to appeal here on the 6^th September 2016 in the following terms:

"1. Permission be granted limited to the ground of appeal addressing the issue of whether it was necessary for the enforcement notice to require the removal of the caravan and decking in order to rectify the breach of planning control.

2. Permission be refused on the other grounds.

3. The Appellant do have liberty to amend her grounds to re-phrase the ground of appeal on which permission has been granted.

13. The Appellant amended her grounds to read as follows:

"1. The Planning Inspector erred in her decision for the removal of the static caravan and decking in view of there having been no breach of planning control per se.

2. The Planning Inspector took no account of the statements made by the LPA as to usage of the static caravan not breaching planning control by virtue of it forming part of the agricultural activity on the site."

14. The general principles concerning the grounds upon which a Court may be asked to quash a decision of an Inspector or the Secretary of State are well established. I gratefully adopt the summary given by Lindblom J, as he then was, in Bloor Homes East Midlands Ltd v. Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) in the following terms:

"(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to "rehearse every argument relating to each matter in every paragraph" (see the judgment of Forbes J. in Seddon Properties v. Secretary of State for the Environment (1981) 42 P. & C.R. 26 , at p.28).

(2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the "principal important controversial issues". An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v. Porter (No. 2) [2004] 1 WLR 1953 , at p.1964B-G).

(3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, "provided that it does not lapse into Wednesbury irrationality" to give material considerations "whatever weight [it] thinks fit or no weight at all" (see the speech of Lord Hoffmann in Tesco Stores Limited v. Secretary of State for the Environment [1995] 1 WLR 759 , at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J., as he then was, in Newsmith v. Secretary of State for [2001] EWHC Admin 74 , at paragraph 6).

(4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v. Dundee City Council [2012] PTSR 983 [now [2012] UKSC 13], at paragraphs 17 to 22).

(5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann LJ, as he then was, South Somerset District Council v. The Secretary of State for the Environment (1993) 66 P. & C.R. 80, at p.83E-H).

(6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v. Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB), at paragraph 58).

(7) Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill LJ Fox Strategic Land and Property Ltd. v. Secretary of State for Communities and Local Government [2013] 1 P. & C.R. 6, at paragraphs 12 to 14, citing the judgment of Mann LJ in North Wiltshire District Council v. Secretary of State for the Environment [1992] 65 P. & C.R. 137, at p.145)."

15. Furthermore an Inspector appointed to conduct a planning appeal must:

i) have regard to the statutory development plan (see section 70(1) of the 1990 Act and section 177(2) in relation to the grant of planning permission on appeals against enforcement notices);

ii) have regard to material considerations (section 70(1) of 1990 Act);

iii) determine the proposal in accordance with the development plan unless material considerations indicate otherwise (section 38(6) of the Planning and Compulsory Purchase Act 2004);

iv) apply national policy unless s/he gives reasons for not doing so - see Nolan LJ in Horsham District Council v. Secretary of State for the Environment and Margram Plc [1993] 1 PLR 81 following Woolf J in E. C. Gransden & Co. Ltd. v. Secretary of State for the Environment [1987] 54 P & CR 86 and see Lindblom J in Cala Homes (South) Ltd v. Secretary of State for Communities & Local Government [2011] EWHC 97 (Admin), [2011] JPL 887 at [50]; and

v) if it is shown that the decision maker had regard to an immaterial consideration, or failed to have regard to a material one, the decision will be quashed unless the Court is satisfied that the decision would necessarily have been the same: see Simplex GE (Holdings) Ltd v. Secretary of State for the Environment [1988] 57 P & CR 306. See Gilbart J in South Oxfordshire v. SSCLG [2016] EWHC 1173 (Admin) at [86].

16. These principles apply mutatis mutandis to decisions on appeals against enforcement notices as Lang J confirmed in Keenan v Woking Borough Council [2016] EWHC 427 at [23] to [24].

The Decision Letter:

17. The Inspector set out the background to the appeals in the following passages from her decision letter:

"2. …when the appellants bought Little Harness Farm in 2000 it was a bare land holding. The land was initially used as grazing land by a local farmer but in about 2009, the appellants began extensive planting of fruit and nut trees. It appears about 1,000 trees were planted by 2012 but there was a succession of poor harvests in 2011, 2012 and 2015. The appellants said in their statement that they intend to increase the number of trees to about 1500.

3. An application for an agricultural building and associated facilities was refused in 2013 and subsequently dismissed on appeal in May 2014 on the grounds that the proposed access was unsatisfactory. I understand there are ongoing negotiations regarding the access but these are not matters before me.

4. A touring caravan was placed on the land from 2009 -2011 but was removed following enforcement action. In 2012 the static caravan was brought on to the land; it is this caravan that is the subject of Appeals A and B. The appellants say that an on-site presence is necessary at key periods of activity including pruning, watering, weeding, mowing, harvesting (storing, preserving, juicing, selling) and planting. For the remainder of the year the appellants live in Dubai which is described by them as their home and it appears to be both their primary address and where it seems they run a law practice. Notwithstanding this the appellants' evidence is that during 2014/2015, they may have been resident at Harness Farm for about 8-9 months. The appellants also say that it is not possible to predict exactly when agricultural work will need to be carried out and for how long. This is because of the changeability of the weather".

18. The Inspector dealt with the appeal under ground (b) in relation to the first enforcement notice in the following passages of her decision letter:

"5. Under this ground of appeal the onus is on the appellant to show that the alleged breach of planning control has not occurred as a matter of fact.

6. The breach of planning control as alleged in the notice is the change of use of the land from agriculture to a mixed use for agriculture and for the stationing of a caravan for residential purposes. But the appellants say that the caravan is only used for overnight accommodation when there are tasks that need to be done on the holding and there are long periods when the caravan is not in use.

7. The caravan provides a double bedroom and large living space. The centre of the structure has been adapted so that the kitchen area has been enlarged. The appellants say that this kitchen is used for processing the fruit and I saw some equipment such as preserving pans, a juicer and various bottles and other equipment. Whilst I have no doubt that that this could be used to process fruit it appeared to me to be not dissimilar to the type of equipment that could be found in many domestic kitchens and does not suggest large scale commercial activity commensurate with produce from up to 1500 trees and the production of soft fruit.

8. I acknowledge that my visit was just a snap shot in time, and took place in mid June prior to the main fruit season. However, I saw no evidence in the caravan (or indeed on the holding) of storage of wine or cider or any other processed fruit other than a few bottles of juice arranged on the kitchen counter. The use of the caravan at the time of my visit appeared to be similar to that shown in the photographs provided by the Council and on both occasions the use of the caravan seems to be limited solely or mainly to providing residential accommodation. Moreover, it appears to offer many or most of the facilities for day-to-day permanent living accommodation."

19. She concluded in relation to this ground of appeal that " … there is little or no evidence of any use of the caravan other than simply as residential accommodation. Consequently as a matter of fact and degree the alleged breach of planning control has occurred and the appeal on Ground (b) fails".
20. In relation to Ground (c) she began by reminding herself that Section 55(2)(e) of the 1990 Act says that the use of any land for the purposes of agriculture …and any building occupied together with land so used shall not be taken as involving development of the land (DL11).
21. However, she went on to explain:

"12. The caravan is not a building; rather, as alleged by the notice, it is a use of land. And in any event, as I have noted above the caravan is not, as a matter of fact, in use for the purposes of agriculture. In these circumstances there has been a change in use of the land to a mixed use comprising agriculture and residential occupation of the caravan and thus there is, as a matter of fact, development."

22. So in the absence of planning permission for that development, she concluded that the appeal under Ground (c) also failed.
23. The Inspector then went on to consider Ground (a) in relation to the caravan and whether planning permission should be granted. She looked at the claimed needs of the enterprise and wrote this:

"19. …The appellants also say that there are periods of 'key activity' where an on-site presence is said to be necessary. However, no cogent evidence has been submitted to support this statement and there is no agricultural appraisal or business plan to suggest that on-site residential accommodation is essential. Moreover, while I accept that the appellants may find it convenient and financially advantageous to live on the site at various times, it appears that their principal home is in Dubai and on at least one previous visit to England alternative accommodation in the vicinity has been rented. I therefore attach little weight to the argument that this would not be a financially viable course of action.

20. Neither do I give much weight to the suggestion that the caravan is tantamount to being seasonal accommodation because, on the appellants' own evidence, this can amount to 8/9 months a year but varies in extent and time from year to year. In the circumstances it appears that it is, as a matter of fact, permanent residential accommodation which can and is occupied at any time by the appellants at their convenience. Whilst it is argued that it is essential to the agricultural use of the land there is no cogent evidence that the care and nurture of the fruit or nuts require an on-site presence."

24. The Inspector went on to consider potential alternative accommodation, the effect on the Area of Outstanding Natural Beauty, access, and relevant policies and dismissed the appeal under Ground (a).
25. In relation to ground (g) she found that the 3 month period for compliance was reasonable: see DL29-33.
26. In relation to the decking the Inspector concluded under Ground (c) that its construction amounted to development under section 55 of the Act and in the absence of planning permission for it, the appeal failed: see DL34-37.
27. Under Ground (a) she found the appearance of the decking alien and incongruous in the AONB and "in the absence of a functional relationship with the agricultural operations there is no cogent reason to set aside the policies that restrict development in the designated countryside": see DL40.
28. In relation to the appeal under Ground (f) she wrote:

"42. Section 173(4) of the 1990 Act says that the purposes of an enforcement notice are (a) to remedy the breach or (b) to remedy the injury to amenity which has been caused by the breach. In these appeals the Council appear to be seeking a remedy to the breach though this is not made explicit in the notice. Under this ground it is necessary to consider whether the requirements go too far or are unreasonable or that the steps required by the notice are excessive.

43. The appellants suggest that the size of the decking could be reduced so that it is retained only adjoining the two doors on the north elevation of the caravan. But there is no plan before me or details of the size and extent of the retained decking. In this case, the suggested alternative steps are not clear and precise and thus it is not feasible to alter the requirements of the notice.

44. In any event the appellants' evidence is that the main purpose of the decking is to provide amenity space for the caravan. Thus once the caravan is removed no purpose would be served by the decking whether it is reduced in size or not.

45. Consequently, in respect of the requirements the appeal on ground (f) fails because the steps do not exceed what is necessary."

29. The Inspector found that the periods for compliance with the steps required by the notices were reasonable and dismissed the appeals under ground (g) in respect of both notices.

Discussion:

30. Permission to bring this appeal was given by Mitting J on the express basis that the permission was limited to the ground of appeal addressing the issue of whether it was necessary for the enforcement notice to require the removal of the caravan and decking in order to rectify the breach of planning control. He expressly refused permission on the other grounds. In my judgment that was an express limitation of the permission to an appeal under ground (f). An appeal under section 174 (2) (f) may be made on the ground that "the steps required by the notice, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control … or, as the case may be, to remedy any injury to amenity which has been caused by any such breach" and it is clearly those words which Mitting J had in mind when he gave his limited permission.
31. He did however allow the Appellant to amend her grounds of appeal "to re-phrase the ground of appeal on which permission has been granted". The Appellant took that opportunity as a way to seek to reintroduce issues as to whether there had been a breach of planning control. So in her skeleton argument Miss Olley submitted "there has not been a change of use of the land from agriculture to a mixed use of agriculture and the stationing of a caravan for residential purposes. Rather…the static caravan fulfils a variety of functions which are all ancillary to the continuing agricultural use of the site". She relied on Wealden District Council v Secretary of State for the Environment [1988] 56 P. &C.R. 286 as establishing that a caravan on agricultural land may be used for activities incidental to the agricultural use of the land and so the stationing of a caravan on agricultural land for such purposes does not involve in those circumstances a material change in the use of the land. She went on to criticise in her skeleton argument and in her oral submissions a number of the Inspector's findings on that issue on the basis that the Inspector had failed to grapple with the point that the use of the caravan was ancillary to the agricultural use of the land. She argued that it was not necessary to require the removal of the caravan because the caravan was fulfilling an agricultural function.
32. However, there was no ground (f) appeal in relation to the first enforcement notice which required the Appellant to stop using the land for the stationing of a caravan for residential purposes and to remove the caravan from the land. The Inspector under ground (a) could have granted planning permission for a mixed use of the land for agriculture and for the stationing of a caravan for residential purposes but she decided not to do so having read the written representations and having made her site visit. Those were matters for her planning judgment and the conclusions she reached were reasonably open to her and do not show any error of law. Her findings were fully set out and explained at DL6-10. She expressly found that "there is no cogent evidence from the appellants to suggest that the caravan fulfils a variety of agricultural functions" and that "there is little or no evidence of any use of the caravan other than simply as residential accommodation": DL9. She asked herself the right questions and the answers she gave were a matter for her consideration of the evidence, including what she saw on her site visit, and for her planning judgment. All matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. See paragraph 14 (3) above.
33. The criticisms made by the Appellant of the thoroughness of the site visit or the findings of the Inspector do not in my judgment establish any error of law when the decision letter is read thoroughly and fairly. The Inspector clearly engaged with the issues before her and reached conclusions that were open to her. I do not accept that the Inspector failed to understand the Council's position as to the use of the caravan. In their written representations the Council did accept that at one stage there was no evidence of the caravan being used for residential purposes and that it was being used solely for the purposes of agriculture. However, they went on to explain that "continued concerns were received advising that the use of the caravans had now changed and that the use of the static caravan was now being used for residential purposes. A site visit was undertaken on the 17^th March 2015. During this inspection it was confirmed that the static caravan was being used for residential purposes (see pictures at appendix 2). The Inspector properly understood the position and wrote in her decision letter: "The use of the caravan at the time of my site visit appeared to be similar to that shown in the photographs provided by the Council and on both occasions the use of the caravan seemed to be limited solely or mainly to providing residential accommodation": DL8. By her reference to "mainly" providing residential accommodation the Inspector seems to contemplate some ancillary agricultural use but not enough to change her conclusion that the breach of planning control alleged had occurred.
34. I also do not accept that the Inspector made any error when she drew attention to the absence of a "business plan to suggest that on-site residential accommodation is essential": DL19. It was suggested on behalf of the Appellant that the Inspector had "failed to notice the business plan" and that this did not give confidence in the decision letter. However, that "business plan" was an assessment in 2013 that did not address residential use on the site and so what the Inspector wrote in her decision letter was accurate.
35. It was the Appellant's case that the caravan was used for ancillary agricultural purposes but the Inspector found against her on that issue. In my judgment it was not open to the Inspector in any event to grant planning permission for the retention of the caravan for agricultural purposes as the breach of planning control alleged was the material change in the use of the land from agriculture to a mixed use for agriculture and for the stationing of a caravan for residential purposes. Planning permission on an appeal may be granted in relation to all or any of the matters said to constitute a breach of planning control. The Inspector could not therefore grant planning permission for retention of the caravan for agricultural purposes as that was not part of the breach of planning control alleged and would not involve development for which planning permission is needed. See too Miaris v Secretary of State for Communities and Local Government [2015] EWHC 1564 (Admin) at [21] and [34]-[35]. Furthermore, there was no ground (f) appeal in relation to this enforcement notice and so it was not open to the Inspector to find that the steps required by the notice exceeded what is necessary to remedy the breach of planning control. In any event it would have been inconsistent with her findings as to the use of the caravan and its effects to have decided that it was not necessary to cease that use.
36. There was an appeal under ground (f) in respect of the decking and the Inspector expressly found that the steps required by the second enforcement notice do not exceed what is necessary to remedy the reach of planning control: DL45. She decided that the suggestions that the size of the decking could be reduced were not clear or precise and so it was not feasible to alter the requirements of the notice: DL43. That again was a matter for her planning judgment. As she pointed out, once the caravan is removed no purpose would be served by the decking whether it was reduced in size or not: DL 44. Again the Inspector addressed the right questions and determined that it was necessary to remedy the breach of planning control to remove the decking. She was not required to consider whether any lesser steps would remedy any injury to amenity, as that was not the basis of the notice: see Keenan v Woking Borough Council [2016] EWHC 427 (Civ) at [39] and [49]-[50]. There was no error of law in the Inspector's approach.

Conclusion:

37. For these reasons I conclude that there were no errors of law in the Inspector's decision letter or in her handling of the appeals against the enforcement notices and so these appeals under section 289 of the 1990 Act are dismissed.
38. I invite Counsel to draw up the appropriate order.