Hill v Secretary of State for Transport, Local Government & Anor

MR JUSTICE COLLINS: Michael John Hill appeals under section 289 of the Town and Country Planning Act 1990 against the dismissal by an inspector of his appeal against an enforcement notice, which was served as long ago as 19th July 2001. The notice relates to a site called the Eldridge Vale Caravan Park, which is on a road called Valebridge Road at Burgess Hill in West Sussex. Despite its name, the caravan park is in fact licensed for one caravan only, and a condition of that licence was that an access to enable the caravan to be removed from and brought onto the site should be constructed.

There was, some time ago, an access created to a footpath which runs along the side of the site and which eventually comes out onto Valebridge Road. The council took the view that that access was not one which was permitted and sought to enforce against it. The enforcement notice led to criminal proceedings, but the appellant obtained, in due course, a certificate of lawful use. As a result, that enforcement notice disappeared. I merely mention that because it indicates there has been a history in relation to this site, and it seems that the district council have been waging something of a war against the activities on it. No doubt they are properly concerned that any access to this site may create a danger to traffic using Valebridge Road. However, be that as it may, the history is not directly material to the point that is in issue before me.

Following the proceedings to which I have just referred, and because of the criminal prosecution, the appellant decided to remove the means of access that had been constructed. I am told that advice was sought from an engineer, and the advice was that he should construct the necessary access directly to Valebridge Road. In fact, it was proposed to run out onto the road at roughly the further end of the site from the footpath to which I have just referred.

As it happens, I am told, Valebridge Road is subject to a 30-mile limit, which expires between the footpath exit and the proposed new exit, so that at the point where the proposed new exit was to give onto Valebridge Road, there was no speed limit save for the national one covering all non-dual carriageways of 60 miles an hour.

The council took the view that that development was not permitted and so served the enforcement notice which was the subject of this appeal. The notice, as I have said, was dated 19th July 2001. It specified the matters which appeared to constitute the breach of planning control in these words:

The appellant appealed against that notice on four of the permitted grounds under section 174. The two material for the purposes of this appeal were: (b) that the matters had not occurred; and (c), that the matters, if they occurred, did not constitute a breach of planning control. They also raised ground (f), that the steps required were excessive, and (g), that the time to comply was too short.

I should say that the inspector allowed in part the appeal on (f) and (g), but that of course was only concerned with the steps and with the time. The real matter in issue was in relation to (b) and (c), the contention being in effect that the development was not one against which enforcement could properly be brought, either because what had happened did not amount to the matters which appeared to constitute the breach, or because any development was not a breach of planning control.

So far as ground (b) was concerned, the focus was on whether what had been done constituted an entrance onto the road; and secondly, whether the road was classified. So far as ground (c) was concerned, reliance was placed on the GPDO of 1995. I should refer to that immediately to explain why and how reliance could be placed upon it.

Schedule 2 Part 5 of the GPDO in question, by class B in Part 5, permits:

By Article 3 of the Order there were limitations placed upon the scope of the permitted development. The relevant one is that in Article 3(6) which reads:

Although the contention was that this means of access was unacceptable because of the effect on traffic using Valebridge Road, the council did not seek to rely upon the last part of paragraph (6) of Article 3. It did not create an obstruction to the view and under that provision it is only if an obstruction to view creates a danger that the development is not permitted. Rather, they relied on the contention that Valebridge Road was a classified road. If it was, then the development would not have been permitted.

Article 1 contains definitions. "Classified road" is defined as follows:

The result of that was that this particular concept of classification is material, it seems -- I will not say "only" because we have not gone into the detail of that -- largely to development control, and control, in particular, under the GPDO. But it has meant that there is a paucity of records, because the highway authority -- or the part of the council which is concerned with highways -- has not had the incentive to keep the records which are material for the purposes of the planning side of the authority. Further, in many cases the authority which is responsible for planning may not be the authority which is responsible for maintenance of the relevant highways. That is, as it seems, what has produced in this case the difficulties in ascertaining whether indeed Valebridge Road is a classified road.

The issue as to whether a road is or is not classified involves something of a tour through the legislation, and not only the legislation but also a Ministry Circular. The starting point is the Ministry of Transport Act 1919. Section 17(2) of that Act provided:

It seems that following that power, the Minister under that Act classified roads in Class I or II, and in addition he may have declared other classes in respect of roads not inferior to Class I or II. I say that because there has been put before me an extract from the Trunk Roads Act 1936, section 13, which is a definition section. That defines "Classified road" as a road:

There has been put before me a circular dated 9th April 1946, Circular No 595, from the Ministry of Transport. This referred to a review of the road grant system. What it stated, in paragraph 2, was that the Minister had decided to institute a system of Class III roads comprising selected roads at present unclassified. Highway authorities were invited to send to the Divisional Road Engineer without delay particulars of such of their unclassified roads as were of more than local traffic value and which, in their opinion, might properly be included in a Class III system.

It then went on to identify the particulars which should be furnished, which included a map or maps showing the trunk Class I and Class II road and, in a distinctive colour, the roads which it was desired should be included in the Class III system. Then there should be provided a list of those roads in order of preference, numbered in accordance with the map and showing the length of each of the roads to the nearest tenth of a mile, and a statement of the reasons why, in the view of the authority, each of the roads was to be regarded as having more than local traffic value. It went on:

Counsel was unable to put before me any document, whether statutory instrument or circular or whatever, which indicated that the Minister had done what the circular said he proposed to do, and in particular any document which indicated that the Minister had done that in relation to any particular roads in the County of Sussex.

However, the next piece of legislation which is material is contained in the Local Government Act 1966. That, again, contains a provision dealing with grants towards construction and improvement of the roads. It is a somewhat complicated provision. It is convenient to work backwards and start with of section 27(4), which reads:

However, subsection (4) is, on its face, of limited effect. Section 27(2) of the 1966 Act enables the Minister, for the purposes of section 235 of the Highways Act 1959:

But subsection (3) which follows repeals section 17 in relation to, among other things, the improvement and maintenance of roads, and continues:

Subsection (4), which effectively provides that existing classifications under I, II or III shall continue in being for the purpose of subsection (2), appears to be limited to enactments or instruments referred to in subsection (3). So it does not look to the future. For the purposes of future enactments, the scheme set up appears to be that the Minister must classify highways in such way as he decides.

However, the present GPDO is the successor to a number of General Development Orders which have existed since the modern planning legislation came into being in 1947. There was at the relevant time in 1966/67 a General Development Order, the date of which may have been 1963, but it matters not.

One submission made by Miss Lieven, on behalf of the Secretary of State, was that the Interpretation Act section 17 provided, in effect, that where one instrument was repealed and re-enacted, then the effect of expressions in the repealed instrument would continue into the new.

The next relevant legislation that has been put before me, is contained in the Highways Act 1980. Section 12(1) of that Act is the section to which the definition in the GPDO refers. That provides so far as material:

The purposes specified are not of course material to the definition, which applies merely to subsection (1) of section 12.

Although, I am bound to say, the language used is far from as clear as it ought to be, as I read the combination of those various statutory provisions, it seems that the intention of Parliament was to ensure that roads which had been classified in Class I, II or III prior to the coming into force of the 1966 Act, continued to be regarded as classified roads -- the precise numbers of classes then not being material -- for the purposes of any legislation for which that classification was material. If there was such legislation in being at the time of the 1966 Act, then the intention was that it should continue in relation to similar legislation in the future. That seems to me the only purpose of putting in reference to section 27(4) in section 12(1)(c).

Accordingly, if Valebridge Road was classified in Class III -- because it is common ground that it was not and could not have been in Class I or II -- in 1966, or if there is evidence that it was so classified after 1966 by a declaration of the Minister under section 27(2) of the 1966 Act, then it would now be a classified road within the meaning of the GPDO. So one has to now look to see what was the evidence that was before the inspector which sought to establish that this was indeed the position.

The local planning authority relied initially on a document of January 1995, which was provided by West Sussex County Council Highways Management Branch and is headed "The New Hiwayman, Inventory of Maintainable Highway". It sets out all the named roads in the County Council's area. The particular copy that was before the inspector was in alphabetical order. It appears that the County Council, for its purposes, had classified roads as C, D and E. Valebridge Road is split into five sections. Two of the sections ran in the Cuckfield Rural District Council area and three of them in Burgess Hill. As it happens, the boundary between the old Urban District Council and the Rural District Council runs just before the road reaches the site in question, just before the footpath to which I have referred. That has not helped to establish whether the stretch in question is a classified road, although I am bound to say I would have thought that if part of it was clearly a classified road it would be strange indeed if the other part of it, being the same road, was not classified.

The appellant made the point that that did not establish and could not establish that the road was classified for the purposes of the GPDO, and that references to "C" did not help in the least. That is clearly correct, and so further detective work was initiated.

I am bound to say, again, that although these documents that were eventually located were public -- in the sense that they were or should have been accessible to the public -- there has been, it seems, a reluctance on the part of the relevant authority to produce the necessary documentation until pressed hard to do so. There has not been the co-operation that one would have expected, because it is difficult to understand how it could conceivably be suggested that any of the material which was sought was in the least confidential or the sort of material which should not be disclosed. As I say, that created some difficulties. But it is fair to point out that the difficulties have been found to exist, not only by the appellant and those acting on his behalf, but also by the local planning authority, the District Council, for its part.

Be that as it may, the relevant information that has come to light and has been relied on can be indicated shortly. The correspondence was somewhat protracted, but by a letter of 17th May 2001 the council produced an extract from a map of classified roads in East Sussex dated August 1967. On the map, in various different colours, there were set out trunk roads, county roads, principal roads and non-principal roads. The non-principal roads were split into three categories, described as Class 1 and Class 2, Class 3 and unclassified, and then there was an indication as to whether they were directly maintained, claimed or delegated.

On the map there was included the road in question, Valebridge Road, which at that time was within the county of East Sussex. It is now within the County of West Sussex as a result of the changes in 1974, and it was then known as C52 it was regarded, it seems, as a directly maintained road; that is to say, a road directly maintained by the County Council.

Prior to that, the County Council had produced, attached to a letter of 14th March 2001, a document which purported to show the road in question (which was known apparently as Rocky Lane as well as Valebridge Road). It is described as running from the Burgess Hill District Boundary at Valebridge Road to the Cuckfield Urban District boundary 0.1 mile west of the B2212 and having a distance of 1.64 miles, as Class III. In the body of the letter the Senior Legal Assistant to the West Sussex County Council stated:

A further document produced from East Sussex dated 1966 was a schedule of roads. I am concerned, not with the detailed roads in it, but the way it is said to be set out and what it includes. What it includes in the index are said to be trunk roads, Class I roads, Class II roads, Class III roads, unclassified roads and green lanes. As I say, that is dated 1966 and it is clearly consistent with the changes in the 1966 Act and one would expect some such record to have been produced for the purposes of those changes. That document is clearly therefore a significant document.

There was also produced a 1974 document from the West Sussex County Council which has, on its face, class 3 roads and refers to the road in question as the C307, which is what it became when it was transferred to West Sussex. No doubt it was regarded for West Sussex's purposes as a Class III road.

Some further slight illumination has been obtained in a document from the Government Office for the East Midlands. That is a document dated January 1984, which is headed "A Guide to RRU Records [that is Record Review Unit Records] and to the General Classification System". There is a note saying that:

Sadly, that has not happened. It is not entirely clear to me why it has not happened, and why no effort has been made to obtain from the department the heavy green binders or the book to which reference has been made; because one would hope that in those records there would be an indication whether the road in question had indeed been classified immediately prior to the introduction of the 1966 Act. It may be that the reason why no progress has been made is because this particular document was only produced at a fairly late stage. In any event, the fact is that no clear picture has been produced.

In the same document, at paragraph 3.5, the author notes the importance of recognising the distinction between classification and route numbering, and makes the point that:

What flows from all that is that any classification by a local authority, other than the official one -- that is to say Class I, II or III -- or by the Minister under section 27 of the 1966 Act is not, by itself, an indication that the road is classified. However, if a road is an A road or a B road, the inference can properly be drawn that it is a classified road. That is common ground. It appears to be the practice of many highway authorities -- and Sussex is no different -- to give a classification of a C class road. Indeed, Valebridge Road is so classified by the highway authority. That does not in itself mean that it is a classified road, but it is some indication from which the inference might be drawn that it is. It certainly points in that direction, but it goes no further than that.

The final document to which I should make reference is one which came from the Government Office for the South East, and which contained information regarding the road classification system. So far as material, having referred to trunk roads and principal roads, it states in paragraph 6:

I have gone into the evidence in some detail because it is submitted on behalf of the defendant that even if there were any error of approach shown by the inspector, the reality is that he ought to have found from the evidence that the road was classified, or, at the very least, that there was strong prima facie evidence that it was so classified, and that any other conclusion would have been one which was not reasonable on the material before him.

Let us therefore see what the inspector did decide. He dealt first of all with the ground (b) appeal. He identifies the two points that were taken under that appeal: first, that an entrance had not been formed; and secondly, that the road was not classified. He found as a fact that an entrance had been formed. There is no appeal against that finding of fact. But in paragraph 8 he went on:

However, the reality was that although that was regarded as an issue under (b), it really fell to be decided under (c). The real ground of contention that was at issue in (b) was whether an entrance had been formed. There may well be a degree of overlap in the circumstances such as these between (b) and (c). Miss Lieven does not seek to suggest that the inspector's finding in paragraph 8, if it had stood on its own and if it had any material effect upon the overall result, would have been sustainable. That, in my judgment, is clearly correct. But it is equally correct that it had and could have had no material effect upon the overall result, because whether or not the road was classified was the real issue in relation to ground (c).

The inspector set out in paragraph 10 the reason why it was material. He sets out the definition in the GPDO of classified road and refers to the various sections, in the sense that he identifies them. He then, in paragraph 12, reaches his conclusions in relation to the material put before him in connection with classified road. He starts by saying:

I should therefore refer to Nelsovil to see precisely what it does decide. The matter at issue in that case, which was material so far as the burden of proof was concerned, was in relation to a contention that the enforcement notice in that case had been served too late, because the development had taken place more than four years before the service of the enforcement; or rather, putting it the other way round, that the local planning authority was unable to establish that the development had taken place within the relevant period of four years.

The judgment of the Divisional Court (which consisted of Lord Parker CJ, Widgery and Slade JJ, and so in planning terms a strong court) was given by Widgery J. He records on page 408:

Slade J, having referred to the relevant section, stated:

Mr Clay points out that as a matter of ratio Nelsovil was concerned only with paragraph (e); that is to say, whether the notice had been served within the relevant period. That is true, but it is plain that Widgery J was looking at it in more general terms. That is clear from the sentence where he stated that he would have thought in principle that a person given a right to appeal on certain specified grounds is the person who has to make good those grounds and is the person on whom the onus rests. That general principle has been derived from Nelsovil and has, as I have said, been acted on ever since in enforcement notice appeals.

But Mr Clay makes the point that what moved Widgery J particularly was the recognition that where development, which is alleged to be not lawful development takes place, it is often, as he puts it, behind closed doors and it is the developer who will know the details which the local planning authority may not know. That is not the position here, Mr Clay submits. There was no question of the development being carried out clandestinely. It was carried out following something of a battle between the appellant and the defendant, and was being carried out in the appellant's belief that he was entitled to do so within the terms of the GPDO because it was a requirement of his caravan site licence that he should. Whether or not the road was a classified road was a matter which the authority ought to know more clearly than he. This is not a case where he has any special knowledge which the local planning authority does not have. Indeed, the contrary is the case. Thus the reasoning upon which Widgery J, at least in part, relied does not apply on the facts of this case.

However, as it seems to me, the principle of Nelsovil is clearly stated and has been, as I have said, acted upon. It is right for the inspector to have said, in general terms, that the onus of proof in a ground (c) appeal is on the appellant to show that what he has done has not constituted a breach of planning control. Concern has been expressed, if that principle is applied to the letter, that it may mean in a case, such as this, where the appellant is unable to prove the negative, that all a local planning authority has to do is to make the assertion and the appeal will be bound to fail. That, as it seems to me, is not the result of placing the onus upon him, because whether or not he will be able to discharge that onus will depend upon the circumstances of an individual case. If a local planning authority which alleges a matter which constitutes a breach of control produces no evidence to support that contention in circumstances where it would be expected that it should produce some such evidence -- because, for example, it has the knowledge or the means of knowledge -- then the inference can properly be drawn by an inspector that the reality is that they have no evidence to support it, because otherwise they would have put it forward. That might well, in an extreme case, be sufficient by itself to enable an appellant to discharge the onus. It is obvious that the stronger the evidence produced on behalf of the local planning authority, the more will have to be established in rebuttal in order for the appellant to establish his case.

But regard will always be had in any individual case to the ability of one party or the other to obtain the evidence. That will depend upon what the issue is. Thus again, for example in a Nelsovil-type case, the time at which the development commenced is very much a matter for the developer to produce evidence about. There may be some evidence, there usually is, that the development had not apparently existed before a particular time, but had existed or had begun after. But that is not always the case and, as I say, it is a good example of a situation where the developer could be expected to produce the necessary evidence. There are other cases which one could imagine where the situation would be the other way round. All will depend upon the facts of the individual case, because what the inspector has to do is to look at all the evidence that is put before him and to draw conclusions from it. It is not usually necessary or helpful to rely specifically to determine a case on the onus of proof, but in the course of reaching his conclusions the inspector will bear in mind generally the requirement that the appellant must establish his case.

Going back to paragraph 12, he continues:

There may well be cases where an inspector is genuinely on the evidence unable to make up his mind on a material issue. That is what has happened here. In such a case the inspector cannot simply say, "I cannot reach a conclusion". He has to determine the appeal that is before him. In such a case, as it seems to me, he may be thrown back onto the onus of proof, but such a case will no doubt be relatively rare. As I have said, it should apply only where neither side has been able to produce evidence which can be said to tip the balance in their favour.

Where the council produce no evidence -- or even evidence which raises nothing more than a possibility in terms of the inspector's approach -- it is difficult to regard the outcome as being entirely fair. But, for my part, I take the view that to regard the material to which I have referred, and to which the inspector refers, as showing no more than a possibility is to treat it in far too dismissive a fashion. I recognise, of course, that it is for the inspector to find the facts, and I cannot and must not interfere with those findings of fact unless I am satisfied that they were findings to which in law he could not properly have come; that is to say, they were findings which no reasonable inspector could have made on the evidence before him.

Mr Clay makes the point that after 1966 the classing of I, II and III had effectively become otiose. Therefore references to Class III in documents produced after the coming into force of the 1966 Act cannot indicate that they fell within the relevant Class III for the purposes of classification, because there was no purpose in that in classification terms. While I see the force of that argument, the reality is, surely, that it would indeed be likely that those who were concerned with the records and had before them a particular classification would continue that same sort of classification. It does seem to me to be highly significant that in 1966/67 the West Sussex and the East Sussex County Councils were treating this road as being within Class III in one case, Class 3 in another, but nonetheless as a classified road.

It seems to me that all the evidence we have points in the direction of this road being a classified road, and that nothing that has been produced raises sufficient doubt to mean that that prima facie case is not established. Indeed, I would regard the use by the inspector of the word "possibility" as being indeed unreasonable on the evidence that existed. It seems to me, that it raises a strong prima facie case that this was indeed a classified road.

But even if I were wrong to regard that as an unreasonable finding, it is clearly a matter which I can take into account in considering whether, even if there were an erroneous approach by the inspector, this is a case in which as a matter of discretion I should grant relief. I take the view that it is perfectly clear that the decision that this was a classified road is one that will inevitably be reached.

I should add that in case I, the inspector and the local authority are proved wrong if anyone does manage to get sight of the records, the appellant will not have lost out because he will then no doubt be able to establish and obtain the relevant certificate that the development would be or is lawful. That, of course, will trump or can trump the enforcement notice. But the likelihood of that seems to me to be exceedingly remote.

As it is, I take the view, for the reasons that I have given, that the inspector's approach to the problem that faced him was not a wrong approach and that his conclusion was one which was entirely justified by the evidence before him.

I should add one matter. The appellant raised in his grounds of appeal an argument that the Nelsovil approach, as reflected in the inspector's report, was one which was contrary to Article 6 of the European Convention on Human Rights, because it reversed the burden. Since criminal proceedings could follow from a failure to comply with the enforcement notice and there would be no possibility in those criminal proceedings to raise the defence that this was not a classified road, in effect the burden of proof would rest upon the appellant to establish his innocence.

That argument has, as Mr Clay accepted, been very much weakened -- in fact in my view destroyed -- by the decision of the court at Strasbourg in Bryan v United Kingdom [1995] 21 EHRR 342, which was concerned with the enforcement notice system, and by Salabiaku v France [1991] 13 EHRR 379, which related to the matters required for a fair trial, and a number of United Kingdom domestic authorities which deal with the question of reverse burden of proof. The reality is that this has little to do with Article 6(2) because these are not criminal proceedings. They merely found the basis upon which later criminal proceedings can be brought. But in any event, the system is such that it is compatible with Article 6.

I have not gone into any detail in dealing with that argument for the very simple reason that Mr Clay himself did not rely on it in argument before me, beyond saying that it was in his skeleton argument and in his grounds but he was not intending to develop it. As I say, he recognised that it would not prevail if he was unable to persuade me that the arguments based on domestic law were correct.

Accordingly, and for those reasons, this appeal must be dismissed.

We already discussed the question of costs yesterday and it was accepted that if I dismissed the appeal it would be with costs in favour of the Secretary of State in the sum of...?

MR BULEY: My Lord, the sum that was agreed was £7,342.50. My Lord, we need to add the costs of this morning to that.

MR JUSTICE COLLINS: How much are you claiming for that?

MR BULEY: My Lord, it would be £405 in addition.

MR JUSTICE COLLINS: So the total is £7,837.50, is that right?

MR BULEY: £7447.50, my Lord.

MR JUSTICE COLLINS: Sorry, I must have misheard you then. My mathematics is not good. £7,747.50?

MR BULEY: My Lord, yes.

MR JUSTICE COLLINS: Yes. Miss Boyd, is that accepted?

MISS BOYD: My Lord, that is accepted.

My Lord, there is one further matter which I believe was also discussed yesterday and that was whether the appellant would seek permission for --

MR JUSTICE COLLINS: Yes, what I said was that I would give Mr Clay time to consider whether he wanted to apply for leave to appeal. How long are you asking for?

MISS BOYD: My Lord, I would ask for 21 days.

MR JUSTICE COLLINS: That is a bit excessive, I think.

Do you have any comments?

MR BULEY: My Lord, I have no objection.

MR JUSTICE COLLINS: Since you have no objection, you can have 21 days.

MISS BOYD: I am obliged, my Lord.

MR JUSTICE COLLINS: What that means is that if you want to apply for leave to appeal you must come back or must put in an application. What I think is the sensible thing to do, rather than to incur further costs is to say that you should put it in writing and serve it on the other parties. They should then, if they wish, make comments upon it and, unless anyone particularly wants it, I will deal with it on paper rather than by a hearing. Although, of course, anyone can apply to be heard. But I would have thought that initially it is probably quite sensible, is it not, to deal with it on paper?

MR BULEY: My Lord, yes.

MISS BOYD: Thank you.

MR JUSTICE COLLINS: But of course if Mr Clay wants to put forward oral arguments then he should say so in his application and it will come before me whenever.

MISS BOYD: My Lord, yes.

MR JUSTICE COLLINS: I am in town all term. Thank you very much.