Tapecrown Ltd v First Secretary of State & Anor

This appeal concerns an enforcement notice under the Town and Country Planning Act 1990 (“the Act”), issued by the Vale of White Horse District Council in respect of a building on land near Faringdon in Oxfordshire.

The building was erected by Tapecrown Ltd (“the company”), on their agricultural holding, which extends to some 11.6 ha. They claimed that it was permitted development under the Town and Country Planning (General Permitted Development) Order 1995 Schedule 2 Part 6 Class A. That permits certain forms of development which are “reasonably necessary for the purposes of agriculture” within an agricultural unit of at least 5 hectares. Under paragraph A.1, development is not permitted if:

…

any building erected or extended or altered by virtue of Class A, would exceed 465 square metres…”

Before beginning such work, the developer is required to apply to the authority for a determination as to whether their prior approval will be required to the siting, design, external appearance or various other matters. If no notice of determination is received from them within 28 days, the developer may begin work (A.2(2)(iii)(cc)), provided he does so within five years of his notice to the authority (A.2(2)(vi)(bb)).

Also relevant under the GPDO is Part 4 Class A, which grants permission for temporary works required in connection with development operations, but only for the duration of the operations.

In this case, an application was duly made by the company for a determination under Part 6 Class A, but the authority’s notice requiring further details was sent to the wrong address. The company started work, and the building was largely complete by the time the enforcement notice was served. In a letter dated 17^th November 2003 (during the course of the works), the authority’s enforcement officer confirmed that the site had been visited and that the building was within the dimensions allowed by Class A. However, he questioned whether it was reasonably needed for agriculture within the unit or designed for agricultural purposes, as required by Class A. Following further exchanges on those and other issues, the enforcement notice was served on 11^th October 2004.

The building is a rectangular steel framed building, clad to a height of 2 metres in concrete blocks, and above in timber boarding. The roof is corrugated metal cladding. The floor area of the building is 460 square metres. Adjacent to it is a substantial area of hardstanding “only a little less in total area than the building”.

The enforcement notice alleged the erection of a building and construction of hardstanding without permission. It required the removal of the building and hardstanding, the removal of all building materials and rubble, and the restoration of the site to its original condition. The company appealed to the Secretary of State. The appeal was dealt with by written representations. The planning inspector upheld the notice in a decision dated 15^th June 2005. He declined to grant retrospective permission, or to vary the terms of the notice, other than to extend the time for compliance.

Burton J allowed an appeal and quashed the decision. The Secretary of State appeals to this court with permission granted by Pill LJ.

The company’s appeal was made under section 174 (2) of the Act, relying on grounds (c) (no breach of planning control), (f) (steps required excessive), and (g) (period for compliance too short). The appeal automatically triggered a deemed application for retrospective planning permission in respect of the matters alleged in the notice to be in breach of planning control (s 177(5)).

In his decision the inspector dealt in turn with the ground (c) appeal, then the deemed planning application, and then grounds (f) and (g).

Ground (c) He noted that the authority relied on two factors as taking the development outside the GPDO:

The total development including the hardstanding exceeded the permitted limit of 465m;

The building was not “designed for agricultural purposes”.

On the first point (the hardstanding), the main issue was whether the hard-standing was, as the company claimed, covered by the Part 4 permission for temporary building works. The inspector rejected that argument:

Mr Fookes accepts that on both points the inspector disbelieved the company’s case, and that he cannot now challenge that conclusion.

On the second issue (the design of the building), the inspector described the building as having attributes which he found “somewhat surprising in a barn”:

In paragraph 8 he said that, in spite of the “slightly rustic effect imparted to the building by the use of vertical timber cladding”, it did not have the appearance of a typical modern barn. Rather it possessed “many of the attributes” of a building for Class B1 or B2 business use. The differences from a typical barn were not minimal, as claimed by the company:

Deemed application The inspector next considered the applicable planning policies for buildings in an area of open countryside, and one designated as of high landscape value. He observed that the building had “an industrial and commercial character of a kind not normally found in the countryside” and was “incongruous in its rural setting”. He concluded that the development was contrary to the objectives of national and local planning policies, and would not be permitted, in the absence of some material circumstances sufficient to outweigh the objection.

Ground (f) This part of the inspector’s reasoning is central to the issues before us. It is important to have in mind the relevant statutory provision (s174(2)(f)), which permits an appeal on the ground:

The notice in this case required the complete removal of both the building and the hard-standing. In paragraph 15, the inspector rejected the company’s contention that it would be sufficient to require the removal of all the hardcore outside the building, in order to bring the development within the limit set by Part 6:

He then considered the possibility of alterations to the building:

He concluded for these reasons that the requirements were not excessive.

Burton J allowed Tapecrown’s appeal. Although his criticism was directed principally to the inspector’s reasoning under ground (f), I should mention one matter under ground (c). The judge had noted the inspector’s comment that even in their blocked-up state the windows had an impact on the appearance of the building, and that “since the windows exist, they could probably be opened up without reference to the Council”. The judge observed:

I would make two points. So far as ground (c) was concerned, the inspector’s view of the effect of the windows was not just “the starting point” but was an essential part of his reasons for holding that the building was not “designed for agricultural purposes”. It was helpful in my view to treat that as a discrete issue, before turning to the different (albeit related) issues under the deemed application and ground (f). They would only arise if he found a breach of planning control. Secondly, his use of the word “intended” may be open to misunderstanding. “Design” in this context refers, not to the intention of the developer, but to how the building is designed “in its physical appearance and layout” (Belmont Farm Ltd v MHLG (1962) 13 P&CR 417; Clarke v Secretary of State [1992] 3 PLR 146).

Turning to the inspector’s treatment of the deemed application, Burton J noted that this “unusually” had been dealt with before ground (f). The consequence, in Mr Fookes’ submission, was that the inspector had considered the relevant policies as applying to what he had found to be an industrial building, without considering how it might be modified by an appropriate condition:

The main focus of Mr Fookes’ attack before Burton J, as before us, was in relation to his treatment of ground (f), particularly in paragraph 17, which I have set out above. Burton J agreed with this criticism. He found the reasoning “totally impossible to follow”:

Burton J had two answers to this argument. The first was that such an approach was “Wednesbury unreasonable”:

On the fairness point (although this was not mentioned by Burton J) I note that there was before the court a written statement by the company’s surveyor prepared for the purposes of the appeal from the inspector. He asserted that there had been no evidence before the inspector that a hard standing or other turning area was required by this building; on the contrary, for the proposed agricultural use there would have been “ample turning room within the building”. He added, that if the point had been raised -

Finally, Burton J gave his view of how the matter should be dealt with by the inspector when the matter was remitted:

The Secretary of State appeals on three grounds, in summary:

In holding that there was insufficient evidence in respect of the need for the hardstanding, the judge’s decision reflected “an unduly onerous conception” of an inspector’s duties;

The same applies to the judge’s suggestion that the inspector should have first reverted to the parties for comment on that issue;

The judge wrongly entered into the planning merits.

Before dealing with those issues, I should say something about the background and scope of ground (f), and the inspector’s role on such an appeal.

The enforcement provisions, in their present form, largely follow the recommendations of my 1989 report Enforcing Planning Control. They in turn took account of amendments made in 1981, which I regarded as useful but “somewhat confused”. There remained an unresolved dispute as to the extent to which the authority could (a) “under-enforce”, that is, require something less than a complete remedy of the breach of planning control; or (b) impose alternative requirements to alleviate the effects of the breach. I proposed that there should be “a broad discretionary power to deal with the effects of a breach”, and that the grounds of appeal should reflect that approach (Enforcing Planning Control HMSO 1989 pp 73-4).

I believe that this objective has been achieved, although the drafting might perhaps have been clearer. Section 173(3) allows the steps required by the enforcement notice to be directed to achieving “wholly or partly” any of the purposes referred to in subsection (4). Those purposes are, in summary, remedying the breach, or remedying “any injury to amenity” caused by the breach. In so far as the notice requires less than a full remedy of the alleged breach, there is provision for a deemed permission for what is left after compliance (s 173(11)).

There is a possible gap here. Repairing the damage to amenity may be only part of what is needed. Even a physically unobtrusive development may be objectionable in planning terms, but it may be made more acceptable by steps short of total demolition. That is the province of ground (a), which needs to be read with section 177. The latter makes clear that, on an enforcement appeal, planning permission may be granted in respect of the matters alleged in the notice “in relation to the whole or any part of those matters” (s 177(1)(a)); that for this purpose ordinary planning considerations (including the development plan) must be taken into account (s 177(2)); and that the permission is to be treated as though granted on an application (s 177(3)(6)), and so (at least by implication) may be subject to any necessary conditions.

In short, the inspector has wide powers to decide whether there is any solution, short of a complete remedy of the breach, which is acceptable in planning terms and amenity terms. If there is, he should be prepared to modify the requirements of the notice, and grant permission subject to conditions (or to accept a section 106 agreement, if offered). I would emphasise, however, that his primary task is to consider the proposals that have been put before him. Although he is free to suggest alternatives, it is not his duty to search around for solutions. I will return to the latter point in connection with the grounds of appeal.

To return to the present case, having rejected the ground (c) appeal, and so identified a breach requiring remedy, the inspector’s task was to decide what was the appropriate solution. This required him to consider, not simply what would be necessary to bring the building into compliance with class A, but more generally whether the building could be made acceptable in terms of both planning policy and amenity by any proposed modifications, supported if necessary by planning conditions.

On that approach, the inspector’s reasoning in paragraphs 15-17 is open to criticism, because it appears to confuse the two parts of the exercise. In paragraph 15 the inspector says correctly that, having found that the building is not one “designed for agricultural purposes”, removal of the hard core would not bring it within class A. In paragraphs 16 and 17 he appears to be returning to the more general question of whether modifications, by temporary or permanent blocking of the openings and re-instatement of external cladding, would make the building acceptable in planning terms. But that question is never answered. Instead, in the second part of paragraph 17, he returns to the question of the hardstanding, which he judges by reference again to the requirements of class A. What he never does is to consider whether, if appropriate modifications were made to the building, and if all or part of the hardstanding were removed, the building could be made acceptable in planning terms.

Furthermore, at this stage, it might have been necessary for him to reconsider the planning issues on a different basis. It was at least arguable that, assuming appropriate modifications to the building to give it an agricultural rather than an industrial character, and assuming that he was satisfied that it was required for agriculture, a different set of policies would come into play, namely those dealing with agricultural buildings. This would of course have depended upon the inspector’s rejecting the authority’s case that the building was not in fact needed for agriculture. What his answer to that question would have been we do not know, because he did not find it necessary to consider it.

I conclude, in agreement with the judge, that on this aspect the inspector’s reasoning is inadequate. This is sufficient to support his order that the matter should be remitted to the Secretary of State for reconsideration.

Although this is sufficient to dispose of the appeal, it may be helpful to comment on the points raised more specifically by the three grounds of appeal, since they may be of some wider relevance. The first two were directed to the inspector’s conclusion that some form of hardstanding was required for access. The judge held that this conclusion was based on inadequate evidence or in any event on a point not raised with the company’s representative. I would not myself attach as much weight to this point as did the judge. A professional inspector could reasonably reach a view on such an issue, on the basis of the submissions and his own view of the site, without further evidence. Furthermore, having disbelieved the appellant’s representatives on two versions of their hard-standing story, he may reasonably have felt that he was unlikely to have been assisted by a third. However, that is perhaps putting words into the inspector’s mouth. I note that the complaints made in Mr Jones’ written statement stand uncontradicted by evidence, and there is no other evidence as to what precisely happened at the site view. Since it is unnecessary to do so, I would prefer to express no concluded view on this aspect.

More generally, on one side Miss Busch points to the need to avoid imposing unduly onerous obligations on the inspector whilst on the other, Mr Fookes rightly emphasises that a written representation appeal should not be seen as a second-class form of procedure in terms of fairness. I agree with both propositions. There is clearly a balance to be drawn, on which I would expect inspectors to be given Departmental guidance. It is inappropriate for this court to seek to lay down any general rules.

Our attention was drawn to two authorities from this court: Dyason v Secretary of State [1998] 2 PLR 54, and Taylor and Sons (Farms) v Secretary of State [2001] EWCA Civ 1254. The first concerned an appeal conducted by an informal hearing, rather than a formal public inquiry. The issue was whether the inspector had done enough to ensure that one of the appellant’s witnesses had given his evidence on the basis of full information about the appellant’s business plan. Pill LJ giving the leading judgment noted the danger that the more informal atmosphere of such a hearing might lead to a “less than thorough examination of the issues”. He continued:

On a written representation appeal, the opportunities for an “inquisitorial” approach of this kind are reduced. The parties are not before the inspector, and it is not possible for him to “lead the discussion” in the way envisaged by Pill LJ. I note that, in that case, Thorpe LJ commented that the “round-table discussion” had only lasted two hours, but had been followed by –

I would treat that comment, respectfully, with some caution, except as applied to the facts of the case. The site view may provide an opportunity for clarifying points which have come up during the hearing, but it is no substitute for a fair hearing as envisaged by the rules. The dangers of extending the substantive discussion into the site view were emphasised in the Taylor case, in the specific context of a written representations appeal. This decision was helpfully drawn to our attention by Mr Fookes, even though it may be thought to be against his case.

The judgment of the court was given by Schiemann LJ who as an advocate had had considerable experience of planning procedures on the ground. It has some similarity with the present case, because it concerned an agricultural building alleged to fall within class A, and the dispute was about the inspector’s duties on a ground (f) appeal. The appellant had deposited waste material and rubble on land in his farm, and had constructed a large hard-standing. The enforcement notice required him to remove it all and restore the land. It was argued that the inspector should have gone through the exercise of asking himself how much hard-standing was reasonably necessary for the purposes of agriculture within the unit, and should have limited the notice to the removal of the excess. Not surprisingly this argument was rejected.

The judgement of the Court’s comments deserved to be more widely known and I shall quote them in full:-

It is not clear from the papers before us in the present case to what extent the question of permanent blocking up of the windows was put forward as an option by the company. However, it was a matter which the inspector apparently thought it right to consider, but on which he did not reach a clear conclusion. The defect in my view was one of reasoning rather than fairness.

As I have said, I would not wish to lay down any general rules. I would accept that as a general proposition, given the limitations of the written representations procedure, an appellant would be well advised to put forward any possible fall-back position as part of his substantive case. It is not the duty of the inspector to make his case for him. On the other hand the inspector should bear in mind that the enforcement procedure is intended to be remedial rather than punitive. If on his consideration of the submissions and in the light of the site view, it appears to him that there is an obvious alternative which would overcome the planning difficulties, at less cost and disruption than total removal, he should feel free to consider it. In such circumstances fairness may require him to give notice to the parties enabling them to comment on it. I would expect the Inspectorate to have an established practice for dealing with that situation efficiently and expeditiously.

Finally, in respect of the third ground of appeal, I can see some force in the submission that the judge appears to have moved from the legal to the planning merits of the case, at least at the end of his judgment. He there expressed his view that the “proper course” for the inspector would have been to grant permission for a modified building subject to conditions. I think, however, that this must be read in the context of an earlier paragraph where he had set out his interpretation of the decision, which led him to infer that the inspector had in fact reached the view that a modified building would be acceptable in planning terms. For my part I doubt whether the inspector intended to go so far. In any event, when the matter is reconsidered, the inspector should not feel constrained by any pre-judgment of the planning merits.

For these reasons, I would uphold the judgment, although on more limited grounds. The matter will be remitted to the Secretary of State for reconsideration in accordance with this judgment.

I agree.

I also agree.