Wheeler v First Secretary of State

Wednesday, 7 May 2003

1. MR JUSTICE HARRISON: These proceedings involve an application under section 288 of the Town and Country Planning Act 1990 to quash a decision of an inspector appointed by the first defendant relating to two planning appeals, and an application for leave under section 289(6) of the 1990 Act to appeal against a decision of the same inspector relating to an enforcement notice appeal. All three appeals were dismissed by the inspector, Mr Slack, in the same decision letter dated 8 December 2002, following appeals made by the written representation procedure.

2. The enforcement notice appeal and one of the planning appeals relate to a workshop at Three Ways Farm, Furnace Lane, Warbleton, Heathfield, East Sussex. The claimant had demolished an existing building and erected the workshop without planning permission. An enforcement notice had been served by the second defendant, Wealden District Council, and the claimant appealed against the enforcement notice under section 172(2)(a), namely that planning permission ought to be granted for the workshop. He also made a retrospective planning application for the workshop which had been refused. The claimant's appeal against that refusal of planning permission constituted the planning appeal relating to the workshop. The workshop was said by the claimant to be required by him to pursue his hobby of woodworking and joinery.

3. The other planning appeal related to a detached annex at Three Ways Farm which had been granted planning permission in 1994 for use as a self-contained single bedroom unit for dependant relatives, subject to a condition which was condition 4, which provided that it was only to be used as an integral part of the residential property at Three Ways Farm and not as a separate dwelling house. The Council's planning officer had expressed an opinion in a letter of 25 June 1996 that the use of the annex for bed and breakfast accommodation on an occasional basis would not be in conflict with condition 4 of that planning permission, but that the holiday letting may require permission.

4. In November 2001 the claimant applied for planning permission to vary condition 4 of the 1994 permission in order to permit use of the annex for self-catering holiday accommodation. That application was refused under delegated powers in March 2002 and the claimant appealed against that refusal. That appeal is the other planning appeal decided by the inspector in this case. I will refer to that appeal as "the annex appeal" and I will refer to the enforcement notice appeal and the planning appeal relating to the workshop as "the workshop appeals".

5. The workshop appeals involve the same issue, which relates to the inspector's conclusion as to whether the workshop fell within the curtilage of Three Ways Farm. The parties agree that, if I find against the claimant on the curtilage issue on the section 288 application, I should not grant leave to appeal on the section 289 appeal. Conversely it is agreed that, if I find in the claimant's favour on the curtilage issue on the section 288 application, I should grant leave to appeal on the section 289 appeal and allow that appeal.

6. The annex appeal involves a quite separate matter which relates to the inspector's conclusions on a traffic issue derived from his observations on an unaccompanied site visit. I propose to deal with the workshop appeals and the curtilage issue firstly.

7. The appeal site is within the High Weald Area of Outstanding Natural Beauty. Policy S1 of the East Sussex and Brighton and Hove structure plan, and policy EN6 of the Wealden Local Plan, contain generally restrictive policies relating to development in the AONB. However, policy D19 of the local plan does allow buildings ancillary to existing dwellings outside the development boundaries in certain defined circumstances if they are within the curtilage of the dwelling house. That is why the issue whether the workshop was within the curtilage of the dwelling house at Three Ways Farm was important in the workshop appeals.

8. In paragraph 7 of his decision letter the inspector recorded the view of the Council that the workshop building was not within the curtilage of the dwelling. I should briefly refer to the written representations by the parties on that issue. There was, in effect, only passing reference to the curtilage issue in the claimant's initial written representations. However, in the Council's written representations there was more than one mention of the workshop not being within the curtilage of the dwelling house, and in particular paragraphs 6.15 to 6.17 of those representations dealt with the matter in some detail. Paragraph 6.15 sets out the contention of the Council that the building does not genuinely lie within the domestic curtilage of the existing dwelling. Paragraph 6.16 states that it is readily apparent from a site inspection that the domestic curtilage of the dwelling and its private amenity areas are much more restricted than is shown by the red line on the location plan, and that it does not include such matters as the paddock and open agricultural land, the cottage and its curtilage (being what I referred to as the annex) or the rural buildings on the western boundary of the property, including the workshop. Paragraph 6.17 says that the workshop site lies at the bottom of a bank, divorced from the garden to Three Ways Farm, which ends at the top of the bank. It states that the building is clearly divorced from that curtilage and the immediate setting of Three Ways, and therefore there were no specific policies in the Local Plan against which the proposals could be tested (apart from those which I have mentioned relating to the AONB).

9. The Council's representations also included comments on the claimant's written representations asserting that the claimant's agent had accepted that the workshop was outside and separate from the domestic curtilage. That drew forth further written representations on behalf of the claimant refuting that assertion, and asserting that the out-buildings and the land to the west were within the curtilage of the dwelling house and that a planning officer had previously intimated to the claimant that the workshop was within the residential curtilage. The claimant's representations went on to refer to characteristics which it was asserted were indisputably integral characteristics of a domestic curtilage and made the positive assertion that the workshop was not within the curtilage of the dwelling.

10. Those being the representations of the parties I turn to the way in which the matter was dealt with by the inspector. In paragraph 8 of his decision letter he stated.

"... Having regard to the siting of the new building in relation to the existing dwelling and cottage annex, I share the view of the Council that the appeal building is not within the curtilage of a dwelling. I consider the appeal building, which is constructed on the site of a former agricultural building some distance from the dwellinghouse, would not satisfy the test as outlined in Sinclair-Lockhart's Trustees v Central Land Board [1951] 1 P&CR 195 that it must serve the house or building in some necessary [or] reasonably useful way. In reaching my conclusion as to the extent of the curtilage I have noted the judgment of the Court of Appeal in SSETR and Another v Skerritts of Nottingham Ltd that a curtilage need not necessarily denote a small area."

11. Having reached that conclusion the inspector went on in paragraph 9 to remark that it must follow that Policy D19 was not relevant. In paragraph 10 he found that the development conflicted with adopted policies sufficient to withhold planning permission. He therefore decided that the ground (a) appeal failed, and he did not grant planning permission on the deemed application in the section 78 appeal.

12. Those cases referred to in paragraph 8 of the decision letter had not been referred to by either of the parties in their written representations. Indeed, the parties had not referred to any cases at all in their written representations. Mr Edwards submitted on behalf of the claimant that the inspector had purported to rely on a test in one case, and noted the judgment in another case, without either of those cases having been cited by the parties and without having provided the parties with an opportunity to comment or make submissions on the relevance or applicability of those cases to the circumstances of the appeal. It was said that he had thereby failed to act in accordance with the decision of Ball v Secretary of State for the Environment, Transport and Regions & Kirklees MBC [2000] P&CR 299. That was a case involving an enforcement notice appeal which had been decided by the written representation procedure in which the inspector had referred to three cases which had not been cited by any of the parties in the appeal. Having referred to the duty of the inspector to understand correctly the legal principles involved, Mr Nigel Macleod QC, sitting as a Deputy High Court Judge, stated at page 309F-310D as follows:

"This duty clearly arises whether or not such sources of relevant law are drawn to his attention by the parties. If he fails to understand the law correctly, his decision is susceptible to review on Lord Diplock's principle. It is the same if he purports to determine the appeal on the basis that legal principle derived from case law which has not been drawn to his attention by the parties but which he has discovered for himself. If, on analysis, he is shown to have misunderstood that case law and to have determined the appeal on that incorrect understanding, he errs in law. The question of fairness or impropriety in failing to invite the parties to make representations on the case law in question does not arise in such circumstances.

There will, however, be cases where the

Inspector's reliance upon case law, not referred to by the parties, does not give rise to illegality but still gives rise to a legitimate complaint. Such a case would be one where the Inspector's correct understanding of the law, based on his own researches, indicates that an issue, not treated by the parties as a principal one to which they devoted significant weight in their representations, is in fact a decisive issue in the appeal. In such a case, there could be a real risk that the parties would have more to draw to the Inspector's attention in respect of the facts and circumstances relevant to that issue; and that a failure to give them the opportunity to do would cause substantial prejudice. In such a case, therefore, the Inspector's correct reliance upon the relevant case law would not of itself give grounds for review by the court; but his decision based upon analysis of the facts and circumstances of the appeal in the light of that case law would be open to challenge unless he gave the parties the opportunity to address him further on the consequences of his understanding of the law in the circumstances of the instant appeal."

13. Alternatively, submitted Mr Edwards, the inspector breached the rules of natural justice by not giving the parties an opportunity to address him on the relevance of the authorities. In simple terms, he said the claimant did not have a fair crack of the whip.

14. Mr Edwards also submitted that the inspector had misunderstood and misapplied the test in the Sinclair-Lockhart's Trustees case in the manner in which he quoted it in paragraph 8 of his decision letter, having referred to the test that the building in question "must serve" the house or building in some necessary or reasonably useful way. As Mr Edwards pointed out, in that case Lord Mackintosh said at page 204:

"This rather illuminating decision seems to show that ground which is used for the comfortable enjoyment of a house or other building may be regarded in law as being within the curtilage of that house or building and thereby as an integral part of the same, although it has not been marked off or enclosed in any way. It is enough that it serves the purposes of the house or building in some necessary or reasonably useful way."

15. Mr Edwards drew attention to the words "it is enough" that it serves the purpose of the house in that way. He submitted that the inspector misunderstood the test and misapplied it when he said in paragraph 8 of the decision letter that "it must" serve the house in that way. Mr Edwards suggested that the inspector had turned the test on its head and applied a higher threshold and a test which was not supported by authority. He also submitted that the test in the Sinclair-Lockhart's Trustees case was not the "be all and end all". He also drew attention to the Skerritts case which had also been referred to by the inspector, as being the most recent case which involves a comprehensive review of the case law on the issue of a curtilage. He noted that that case did not refer to the Sinclair case and that none of the cases mentioned in the Planning Encyclopedia dealing with the issue of curtilage mentions the Sinclair case.

16. Mr Edwards suggested that the claimant had not been given any opportunity to make representations on the relevance of the Sinclair case or of the other cases referred to in the Skerritts case. He suggested that the claimant may have wished to comment on such matters as the ownership of the land, the relationship of the workshop to the house and their past relationship, both in terms of ownership and function. Also, the claimant may have wanted to ask for a full-blown inquiry in the light of the issues that had been raised.

17. Mr Maurici, on behalf of the first defendant, submitted in relation to the fairness point that the curtilage issue was the principal controversial issue that had been raised by the parties in their submission, and that the application of Policy DC19 was crucial to the appeal. He submitted that the cases that had been relied on by the inspector were well-known cases and, although it was open to the parties to have made submissions on case law, they had chosen not to do so although they must have had some idea in mind as to what was meant by the word "curtilage". He suggested that, in reality, there were not any additional consequential factual matters arising from the inspector's reference to the case law upon which the parties should have been allowed, or would want, to make comment. He referred to the Skerritts case where, at page 67, Robert Walker LJ said:

"I also respectfully doubt whether the expression 'curtilage' can usefully be called a term of art. That phrase describes an expression which is used by persons skilled in some particular profession, art or science, and which the practitioners clearly understand even if the uninitiated do not. This case demonstrates that not even lawyers can have a precise idea what 'curtilage' means. It is, as this court said in Dyer's case, a question of fact and degree."

18. Mr Maurici relied on that case as showing that the question of curtilage is ultimately a question of fact and degree. When dealing with the question whether the inspector had erred in law Mr Maurici submitted, when referring to the Skerritts case, that the inspector was simply saying that he had not misdirected himself to the effect that the curtilage had to be a small area. He submitted that the inspector's conclusions related to matters of fact and degree and that it was open to him to reach the view that he did.

19. So far as the inspector's reference to the Sinclair case is concerned, Mr Maurici submitted that the substantive test had been accurately recorded by the inspector although he had in effect overstated the matter by using the word "must" rather than "it is enough", the latter being, said Mr Maurici, a strong indicator. He submitted that the inspector would have only erred in law if it was the only matter which he had to consider, but obviously he considered it as only one part of the assessment. He could not have meant that the Sinclair test was the "be all and end all", otherwise he would not have gone on to consider the other matters which he mentioned in paragraph 8 of his decision letter.

20. My conclusion on the workshop appeal is based on that latter aspect. One thing which is clear in this case is that the inspector wrongly described the test in the Sinclair-Lockhart's Trustee case, and he concluded that the workshop building would not satisfy that test, as wrongly described by him. While I understand Mr Maurici's point that he could not have applied it in that way because otherwise he would not have had to refer to the other matters to which he referred in paragraph 8 of the decision letter, there is no way of being sure that he did not apply the test as described by him. Bearing that in mind and bearing in mind that the case had not been referred to at all in the written representation procedure, it would not, in my view, be appropriate to allow the inspector's conclusion on the curtilage issue to stand. I cannot be satisfied that he applied the law correctly. The parties should therefore now have an opportunity to make further representations on the matters raised by the inspector. It follows that the section 288 application relating to the workshop planning appeal succeeds and that decision will be quashed. Leave to appeal against the enforcement notice appeal decision is granted and that appeal is allowed. That decision will be remitted to the first defendant with the opinion of the court for rehearing and re-determination by him.

21. Turning to what I have called the annex appeal, the only ground of refusal in that case was a traffic objection raised by the county council as highway authority which stated:

"The existing access road, at its junctions with the UC7918, has substandard width and existing hazards would be increased by the additional slowing, stopping, turning and reversing traffic which would be created by the proposed development, thereby contrary to the provisions of ... TR3 of the Wealden Local Plan."

22. The Inspector, at paragraph 13 of the decision letter, identified the issue on that aspect as being whether condition 4 of the 1994 planning permission still served a necessary planning purpose, having regard to the highway safety implications of increased use of the junction with the unclassified road.

23. At paragraph 14 of the decision letter he summarised the highway authority's case as being that the holiday unit was likely to generate some 8 to 11 daily trips which would add to traffic hazards at an unsatisfactory junction. The claimant's case, as set out in their written representations, put shortly, was that family or holiday guests staying on a bed and breakfast letting would generate an equivalent or, in some cases, an even greater vehicular use of the access than the alternative of the self-catering facility. It was said that the vehicular use for the proposed holiday letting would not exceed that resulting from the permitted use of occupation by relatives and, quite possibly, some reduction would result.

24. The inspector's conclusions on this aspect are contained in paragraph 15 of the decision letter, in which he stated:

"In my view the starting point should be the likely traffic generation from tourist or holiday use of the annex over and above normal residential use. I have no doubt that, an additional holiday dwelling, particularly during the summer months, would generate as many vehicle movements as a single dwelling. I saw that the existing access to Three Ways farm was a narrow gravelled track. This meets the unclassified road at the junction with Furnace Lane which is a single track road with no turning space close by. During a 30-minute off peak period, I also observed a number of vehicles using the access track, Furnace Lane and the access to the nearby property at Wayside. Having regard to the speed and volume of traffic on the [unclassified] road, I am satisfied that any vehicles emerging from the appeal site access track could be a source of traffic conflict should drivers be attempting to gain access from Furnace Lane or the track at the same time. This could result in drivers having to reverse back onto the highway creating a possible danger to themselves and other road users. In my view, relaxation of the planning condition would be likely to increase use of an unsatisfactory road junction in conflict with the aims of the adopted transport policy TR3. My conclusion is that condition 4 still serves a necessary planning purpose in the interests of highway safety and its retention is justified."

25. The inspector made a witness statement relating to the observations to which he had referred in paragraph 15 of the decision letter. In paragraph 11 of that witness statement he stated as follows:

"I can confirm that I inspected the access from the public highway unaccompanied by the parties. However, at the commencement of the site visit, which was attended by Mr Wheeler, Mr Higgs and Mr Coffey for the Council, I informed those in attendance that I had spent some time before the site visit in the vicinity of the junction I have referred to. I informed those attending the site visit that I had made observations on matters such as visibility, the width of the carriageways and the volume of traffic and suggested that it therefore might not be necessary for the accompanied site visit to cover this. No one disagreed."

26. Mr Edwards submitted on behalf of the claimant that the inspector had failed to provide the claimant with an opportunity to question those observations and challenge the evidence derived from them. He said that the inspector had not informed the parties of what he had observed during that 30-minute period and that the parties should have been entitled to know the details of those observations. There may be, he said, some special reasons for some of the traffic that had been observed by the inspector. It was therefore submitted that the inspector had breached the rules of natural justice.

27. Mr Maurici, on the other hand, pointed that in Annex 1 of the Town and Country Planning (Appeals) (Written Representations Procedure) (England) (Regulations 2000) it is stated that, although there was no statutory provision for a site visit in written representation cases, the inspector would nevertheless carry out a site visit. It is then stated:

"It is not necessary for the Inspector to be accompanied by either party if the site can be seen satisfactorily from a public highway..."

28. Mr Maurici submitted that, even if the site visit had been accompanied, the claimant would not have been able to challenge the inspector's observations. He further submitted that the inspector's conduct of the site visit was impeccable, as could be seen from the paragraph in his witness statement which I have quoted. He pointed out there is no requirement for an inspector to inform the parties, before he produces his decision letter, of the contents of his observations on a site visit so as to allow representations on them. Finally, he further submitted that, if the inspector's approach had been objectionable, the claimant's architect could have objected there and then, but he did not do so. He made no objection to the inspector having made such observations, nor had he asked the inspector to disclose what he had seen.

29. In my view, there was no unfairness involved in the inspector's annex planning appeal decision. There was nothing to prevent him carrying out an unaccompanied site visit from the public highway at the access point which was the subject of concern. Having done so, he informed the parties of that fact and that he had observed such matters as visibility, the width of carriageways and the volume of traffic. He gave the parties, in effect, an opportunity to say that they required an accompanied site visit for that aspect, but neither the claimant nor his architect requested one. Nor did they make any request to make observations on what the inspector might have seen. I fail to see in those circumstances how it can be said that there was any unfairness or breach of natural justice involved in the decision that he made. In my view, there is no merit in the section 288 application relating to the annex planning appeal and that application is therefore dismissed.

30. ME EDWARDS: My Lord, that raises the issue of the orders to be made. I think the orders you set out in relation to the first 288 and the 289 permission hearing, I will ask for those orders to be made. Then there is the question of costs. Of course that is a matter, normally to a certain extent, at the discretion of the court, and clearly on a case like this when you have, depending on which way you look at it, a three-one victory, or one-one draw, or however you want to put it. I would make an application for my client's costs in respect of all matters. We have succeeded on the main appeals, the 289 appeal, the enforcement notice appeal, obviously we succeeded on permission. We succeeded on the 288 appeal in relation to the workshop. I know that my learned friend wishes to make submissions on the quantum of costs but I think there is an issue over the principle of costs in the circumstances where there has been a part victory by both parties.

31. MR JUSTICE HARRISON: What I had in mind, subject to what the parties say, is that you should have your costs of what I have called the workshop appeals, and the Secretary of State should have his costs of the annex appeals. That seems to me to meet the justice of the case.

32. ME EDWARDS: That raises another issue which my learned friend would like to address you on but which I have no objection to. He would like the question of costs to go for detailed assessment rather than for it to be summarily assessed today, because I think there is a query as to quantum of costs that are being claimed from my side.

33. MR MAURICI: My Lord, I do in any event seek an order that this matter go to detailed assessment. There is great discrepancy between the costs incurred on the claimant's side and the costs incurred on this side, and my Lord, we would want to consider those matters in the course of detailed assessment. My Lord, my only concern about the order your Lordship suggests in relation to the Secretary of State having costs of the appeal he succeeded on and the claimant having the costs of the appeals that he succeed on is I wonder how a costs judge will actually be able to break that down, because all those matters have been considered together. I wonder whether that is going to cause difficulties and I wonder whether it is more appropriate, and perhaps easier, if your Lordship were able to apportion a percentage now of the costs which the claimant should be allowed and that then go to detailed assessment in relation to the quantum.

34. MR JUSTICE HARRISON: I can see the point you are making, and another way of approaching it would be to say that the claimant should have two-thirds of the costs.

35. MR MAURICI: My Lord, could I have a moment?

36. MR JUSTICE HARRISON: Yes.

37. MR MAURICI: (After a pause) I wonder if I could persuade your Lordship that two-thirds is slightly too high a percentage. I know this is probably why your Lordship does not want do get into this debate now, but the reason I say that is in the way your Lordship dealt with judgment and the way my learned friend dealt with the case - albeit I accept not the way which I put it - there are effectively two principal issues which engage the parties: the curtilage issue, and the issue in relation to site visit; and effectively if one looks at the way your Lordship's judgment decided the matter - I think the way my learned friend put it it was a one-one draw ---

38. MR JUSTICE HARRISON: I think you have to be very persuasive to persuade me on that, because there is no doubt that the curtilage issue took up a much greater part of certainly the hearing, and indeed the preparation for this case; it is to be seen through the skeleton argument.

39. MR MAURICI: I think my skeleton occupied seven pages of the ---

40. ME EDWARDS: My Lord, also I would submit of course my clients, because of the nature in which the matter was handled by the local authority - and that is no criticism of them or indeed of the First Secretary of State - but of course my client was, because of the position, forced to fight not just the section 288 appeal in the workshop but also the 289 appeal against enforcement notice. Because the two were served together he had to appeal against them. So it was a considerable degree of expense that my client was put to and two-thirds certainly from our side does seem a fair way of apportioning. I perfectly appreciate Mr Maurici's very sensible comment about it will cause difficulties if we try and break everything down to the ninth degree. As an American lawyer once put it to me a horseback guess is probably a good way of doing it and two-thirds we would accept as being properly ---

41. MR MAURICI: I am conscious of the time, my Lord, I do want to make a further application to your Lordship, and I realise I face an uphill struggle to dissuade your Lordship from two-thirds. In those circumstances could the order be that the claimant have two-thirds of the costs effectively of the proceedings, subject to detailed assessment overall.

42. MR JUSTICE HARRISON: That is the order I will make. You say you have another application.

43. MR MAURICI: My Lord, I do make an application for permission to appeal. Can I make it very briefly, because your Lordship has already heard my submissions in detail. Obviously I have failed to persuade your Lordship in relation to the curtilage issue. Can I say first of all my learned friend opened the case by saying there was a dearth of case law dealing with proper approach to an Inspector's decision when he refers to case law that has not been submitted by the parties other than Ball , and my Lord, I do say it is an important point that arises in this case - what standard of reasoning applies to an Inspector's decision in particular circumstances where he has been forced because of his duty in Ball to go away and do the research himself in relation to the case law and comes back and refers to decisions on the basis of that? So my Lord, first of all I say there is underlying this case an important point about practice in relation to the inspector's decisions especially on written representations appeals. My Lord secondly - obviously I failed to persuade your Lordship on the merits of the curtilage issue - as I understand your Lordship's judgment your Lordship on balance was more persuaded by my learned friend's submissions than mine. Can I just say it is my submission that I nonetheless have a reasonable prospect of persuading the Court of Appeal to take a different approach on balance as to the approach your Lordship took. So for those two reasons very briefly I would ask your Lordship to grant permission to appeal.

44. MR JUSTICE HARRISON: Is there anything you want to say about that, Mr Edwards?

45. ME EDWARDS: Yes, my Lord, I would certainly agree with the point there is a dearth of case law on what I think is a very interesting and important point, but I think the problem with my learned friend's submission is that in this case the inspector misquoted the test that he sought to rely on. Had he not done that I think there would be a lot of attraction in what Mr Maurici has to say. But the inspector plainly on the record got it wrong, he misquoted it, and I cannot imagine the Court of Appeal would be that interested in a case of that nature because of that error.

46. MR JUSTICE HARRISON: Yes, thank you very much. I agree with Mr Edwards that the reasoning of my decision is a narrow one of adopting the wrong test. In those circumstances I do not think that there is a real prospect of success.

47. MR MAURICI: Can I trouble your Lordship with one more matter. Normally I would have 14 days to give my appellant's notice to the Court of Appeal. Could I ask that your Lordship extend that time, which your Lordship has power to do, to 14 days after the transcript becomes available so that we could properly consider in full form your Lordship's judgment and decide whether we do want to renew this matter to the Court of Appeal.

48. MR JUSTICE HARRISON: Time for making an application for leave to appeal to the Court of Appeal extended to 14 days after receiving the transcript.