Hildreths China & Glass Ltd, R (on the application of) v First Secretary of State

MR JUSTICE ELIAS: This is a statutory appeal under section 289 of the Town and Country Planning Act 1990. It is brought by the appellant against the decision of an inspector appointed by the first respondent, the Secretary of State, in which the inspector dismissed the appellant's appeal under section 174 of the 1990 Act against an enforcement notice dated 8th February 2002 issued by the second defendant, the Chiltern District Council. The second defendant has played no part in this appeal.

The appellant is the owner of Hildreth's Garden Centre near Prestwood in Buckinghamshire. The right to use the land as a garden centre was established by the grant of planning permission for change of use from nursery garden to a garden centre with a construction of a car park, in 1993. The 1993 planning permission was, however, granted subject to certain conditions. One of these conditions, condition 8, limited the areas which could be used for the sale and display of goods to those specifically identified for such activities on a particular approved drawing.

The garden centre and the surrounding land lies in the Metropolitan Green Belt in the Chiltern area of outstanding natural beauty. The land that is the subject of the enforcement notice lies immediately adjacent, and to the rear of, the garden centre. It comprises an area of land of some 1.5 hectares. The majority of this is in use as a meadow and rough grazing. It is outside the boundaries of the permitted garden centre. The appellant used two small parcels of land, comprising in total some 2.35 per cent of the relevant land to which the enforcement notice applies, for the purpose of storing and displaying goods and materials ancillary to the garden centre.

There had originally been hardstanding, at least on one of these parcels, but this had been resurfaced with brick paviours to accommodate the storage use. The two parcels of land were physically incorporated into the garden centre by the erection of a 1.8 metre timber fence. This separated them from the remainder of the land subject to the enforcement notice to the east, and the course involved in the extension of the original boundaries of the permitted garden centre under the 1993 permission. The fence itself was lawfully constructed pursuant to schedule 2(2) of the Town and Country Planning General Permitted Development Order 1995.

On 8th February 2002, the council issued the enforcement notice, which alleged the breach of planning control. It contended that there had been an unlawful change of use from agriculture to a mixed use of agriculture and use for storage and display of the relevant goods and materials.

Two reasons were given for issuing this notice. The first related to the fact that the development had taken place within the space of 10 years. The second, in so far as is material, is as follows:

The enforcement notice stipulated three steps to be taken within one month by the appellant. They were: to cease using the land for this purpose of storage and display or for any other purpose in connection with the occupation of the garden centre; to remove all goods and materials, including the associated hardstanding, which had been on the land prior to the development; and to reinstate the boundary fence, essentially so as to map out the proper boundary of the garden centre itself.

The appellant appealed against that notice under section 174 of the 1990 Act. The grounds of the appeal were, firstly, that planning permission should be granted for the alleged change of use. It was made plain that permission was sought, however, only in respect of the two parcels of land and not for the whole of the land subject to the enforcement notice. Secondly, it was said that the steps required to be taken were excessive because lesser steps would overcome the particular objections. And thirdly, that the time given to comply with the notice was too short.

The inspector heard the appeal on 17th September 2002 and conducted a site visit on the same day. He issued a decision letter dismissing the appeal and upholding the enforcement notice, but he varied the time for compliance from one month to three. He also varied in certain respects the steps that had to be taken regarding the removal of the hard surface, limiting the requirement to the removal of such materials as had been added to the original hard core. It was not therefore necessary to remove the original hard core from site.

The inspector set out the relevant planning policy background in paragraphs 2 to 4 of his decision. In paragraph 6, he sets out the relevant issues that he had to determine in relation to the planning permission as follows:

He then sets out some of the relevant arguments and his conclusions in subsequent paragraphs. It is necessary in particular to set out paragraphs 9 to 12 of his decision:

He concluded, in paragraph 13, that the development had "little impact on the character and appearance of the [Area of Outstanding Natural Beauty]." As paragraphs 9 to 12 made clear, therefore, his reasons for not conferring planning permission related to the Green Belt.

There are four grounds of appeal. The first two are closely interrelated and concern the approach of the inspector to the question of planning permission. They are that the inspector did not properly address either of the two ways in which the appellant had put its case.

The appellant accepts that in paragraphs 6 of his decision, which I have set out above, the inspector properly identified the questions he needed to ask in relation to the issue of whether the development fell foul of the principles requiring the safeguarding of the Green Belt. That is, first, was it an:

The appellant contends that its primary submission to the inspector was that in testing whether the change of use maintained openness, the inspector ought to have regard to the extent to which the existing lawful development had already eroded openness. It was not appropriate for him to assess the question of openness by testing the proposed development on the assumption that the alternative was undeveloped meadowland, but rather by testing it against the actual nature of two parcels of land, recognising that certain features already had the effect of restricting openness. Indeed, the appellant contended before the inspector that analysing the situation in this way, there was no further restriction on openness at all resulting from the change of use. It was not therefore "inappropriate development".

The appellant relied upon three features in particular. First, the fact that there was already hardstanding on the parcels of land -- in fact, it is not entirely clear whether there was on each of the two parcels but there certainly was on one of them. The second, that there was already a fence in situ, which the appellant could not lawfully be required to remove because, as I have indicated, it fell within the terms of the general development order. And third, that conditions could be imposed so as to ensure that the stored material did not protrude above the level of the fence. Miss Clayton, for the appellant, accepts that the inspector was entitled to reject this argument. Her complaint was that he never properly addressed it.

Her second ground is to similar effect. It is that neither did the inspector address the alternative solution that there were very special circumstances to outweigh the harm which the development would cause. Indeed, Miss Clayton submits that this is a clear case of error by the inspector since the inspector said in terms at paragraph 12 that "no claim" of "very special circumstances" had been made, whereas it had been expressly advanced.

In relation to both these grounds, Miss Clayton relied on the case of Dyason v Secretary of State for Environment [1998] 2 PLR 54 for the, if I may say so, uncontroversial proposition that an inspector must properly consider the case advanced by the parties before him. Pill LJ in his judgment, Nourse LJ and Thorpe LJ agreed, said this at page 62:

Mr Strachan, for the Secretary of State, submitted that these grounds were unsustainable and involved a strained and artificial reading of the inspector's decision. He submitted that, read fairly, the inspector had plainly considered these points as a matter of substance and had rightly rejected them. He referred to certain observations in two decisions of the Court of Appeal, which deal with the way in which the decisions of inspectors should be approached. In Wandsworth LBC v Secretary of State for Transport, Local Government and the Regions[2003] EWCA Civ 142, Ward LJ said this at paragraph 58:

Mr Strachan analysed the approach of the inspector in the paragraphs I have set out above as follows. In paragraph 9, the inspector referred to the aerial photographs and made reference to the fact that one of the parcels had been occupied by an agricultural building. The inspector expressed the view that:

Mr Strachan submitted that it is plain that the inspector had had regard to each of the matters relied upon by the appellant. The inspector did not consider that the fencing was a factor in favour of the development; if anything, it was a factor against because it reinforced the sense of erosion. Similarly, he did not think that the adverse effects could be met by imposing conditions.

I accept that, given that the inspector looked at each of the issues raised by the appellant and reached his very strong conclusion, it is a matter of forensic rather than genuine complaint to say that he did not in terms identify the appellant's primary argument in precisely the way it had been advanced beforehand. The substance of the point had plainly been considered.

The argument with respect to the alternative grounds superficially has greater force because of the inspector's comment at paragraph 12 that, "no claim was made ... that there were any very special circumstances". This was in fact wrong, although there are two points to note about this argument: first, it depends upon exactly the same three factors that had already been relied upon in the context of the contention that there was no erosion of openness, namely the hardstanding, the fence, and the ability to impose conditions; second, although the argument was advanced, it must be said that it did not figure at all significantly in the submissions of the appellant. It was very much secondary to the principal submission, as is made plain in the detailed report which was lodged in this case by Mr North on behalf of the appellant.

Had I entertained any doubt as to how the inspector might have dealt with this matter had he in terms addressed it, I would have remitted the matter but, in my view, this is one of the rare cases where it is wholly fanciful to suggest that he might have been persuaded by this argument to grant planning permission.

The alternative argument is really the first argument under a different guise. The inspector considered that the development was a serious erosion to the Green Belt in the area. That was after considering the effect of each of these three factors. No fresh countervailing reasons were advanced as to why the development should be permitted notwithstanding the erosion. There were not, for example, any submissions to the effect that it would serve some wider public interest. Indeed, the reasons advanced did not act as a counterweight to the conclusion that there had been an erosion at all. Rather, they were advanced to suggest that the erosion was less significant than it would have been absent these particular factors. Whether that was so or not, the inspector still was satisfied that the development was "inappropriate" even after considering each of these matters. That was a matter of judgment for him and is not for the court to question that judgment.

I have doubts as to whether these factors are on their own even capable of constituting very special circumstances, but whether they are or not, the decision of the inspector essentially dealt with the argument albeit not in terms. He reached a conclusion which is simply incapable of being consistent with the finding that these factors could constitute any "very special circumstances" sufficient to outweigh the erosion of the Green Belt.

The third argument was based on a finding of the inspector at, paragraph 14 of his decision, that various materials had been left on the land covered by the enforcement notice, albeit not in either of the two parcels of land which were the subject of the planning application. The inspector commented that these materials could be seen from a bridle path and were, "alien features in this sensitive landscape". He was entitled to make that observation, not least because the enforcement notice applied, of course, to the whole of the land. It does not seem to me that it affected his analysis of the question of planning consent. In any event, it stands as a wholly separate matter than the planning objections based on the Green Belt. This ground has no real merit and in fairness Miss Clayton barely pursued it.

The fourth ground of appeal relates to the wording of the enforcement notice. As it stands, it requires the appellant to:

This is directed not merely at the two parcels of land but at the whole of the land, which was the subject of the enforcement notice. The appellant submits that an argument was advanced before the inspector to the effect that the wording of the enforcement notice would prevent the use of the land for horticultural purposes. It is said that this would prevent a use that does not, in fact, require permission because it falls within the scope of section 55(2)(e) of the 1990 Act.

As I understood the argument, Miss Clayton accepted that the words in the enforcement notice were apposite to deal with the potential use of the two parcels of land for horticultural purposes, but not the whole of the land covered by the enforcement notice.

Mr Strachan submits that, in fact, if the horticulture is ancillary to the operation of the garden centre, then it should be treated in precisely the same way as the two parcels of land in any event. In other words, there is nothing wrong with the terms of the enforcement notice. It does not prevent the land being used for horticultural purposes save in circumstances where the use is "in connection with the occupation of the garden centre". But further, and in any event, Mr Strachan submits, and this is common ground, that it is not possible for an enforcement notice to forbid unlawful use of the land in question. Accordingly, Mr Strachan says that since section 55 permits the land to be used for horticultural purposes, then nothing in the enforcement notice either does or could lawfully restrict that right.

Miss Clayton says that is all very well, but nonetheless the decision when read with the enforcement notice creates difficulties for the claimant. The inspector had dealt with the aspect of the wording of the enforcement notice in paragraph 17 of his decision as follows:

Miss Clayton also relied upon a decision of Ouseley J, sitting as a Deputy High Court Judge, in the case of Kinnersley Engineering Limited v Secretary of State for Environment[2001] JPL 1082. It is not necessary to set out the facts of that case. After referring to the Mansi document, the judge made the following observations in paragraph 20:

On the facts of that case, his Lordship held it was not clear that existing use rights would be protected given the terms of the enforcement notice. In principle, therefore, an amendment to the enforcement notice would have been necessary.

In this case, I am satisfied that there is no need to amend the notice. The provision on which the appellant wishes to rely is the user right conferred by statute. This removes certain activities including agriculture, which also includes horticulture, from the definition of development so that no planning permission is required for such an activity. There is no need for that to be made plain in the enforcement notice. In any event, the enforcement notice only purports to render such use unlawful where it is in connection with the occupation of the garden centre. That is what it says in terms. This is not a case where there are user rights which are conferred in the particular circumstances and linked only to the specific land, such as in the Kinnersley and Mansi cases. The user rights said to be cast in doubt here are those which emanate clearly from legislation and attach to all land.

That is sufficient to deal with each of these points. I should add, however, that in the course of the hearing I raised a query whether it was appropriate for an enforcement notice to seek to forbid activities which have not been the cause of the notice itself. I wondered whether it was lawful for the enforcement notice not merely to put the landowner at risk of prosecution for doing the very thing which the enforcement notice specifically forbad, but also any other use in connection with or ancillary to the lawful user, that is in this case the occupation of the garden centre. It may not always be apparent whether such ancillary use would be lawful or not and yet there is a potential threat of prosecution.

Miss Clayton sought to rely on this as an additional ground of challenge, however Mr Strachan submitted that it would be inappropriate to permit the argument to be run at this stage since the point had not been raised below and the only concern of the claimant was in fact in relation to the use of the whole site for horticultural purposes. Mr Strachan fairly observed that the issue was potentially a broad one and in any event he would need some opportunity to research it. In the circumstances I refused to permit Miss Clayton to argue the point. I hasten to say that further argument may well have demonstrated that it was singularly devoid of merit.

For the reasons I have given, this appeal fails.

MR STRACHAN: My Lord, good morning. I would ask for an order in those terms dismissing the appeal.

MR JUSTICE ELIAS: Yes, of course.

MR STRACHAN: My Lord, could I also ask for an order that the appellant pay the first respondent's costs. There are some cost schedules, which have been provided to the court, but if your Lordship does not have one immediately to hand -- I hope I will not have to trouble your Lordship too greatly with it because the broad sum is agreed, subject to your Lordship's consent; that is the sum of £5,781.

MR JUSTICE ELIAS: I have to say, one often sees figures which are rather significantly in excess of that, so I think that is certainly agreed. I will make an order for that sum.

MR STRACHAN: I am grateful, my Lord.

MR PIKE: My Lord, first all can I apologise for Miss Clayton's absence this morning.

MR JUSTICE ELIAS: No, that is fine. Thank you for coming in her place.

MR PIKE: My pleasure, my Lord. The Secretary of State's application for costs is it not disputed. I am happy with the sum. He is perfectly entitled to those costs. The only other matter that remains is the matter of leave to appeal. My Lord, I must formally ask for leave to appeal on all grounds at this stage. In particular, I would just like to make a couple of submissions on the ground F appeal, the scope of the notice.

MR JUSTICE ELIAS: Yes.

MR PIKE: My Lord, if I recall your judgment correctly, you said first of all that the Kinnersley and Mansi cases were different in that the lawful use rights at issue in those cases were not the same as here because they were, as I understood it, related to specific statutory instruments, whereas this was an exemption from section 55.

MR JUSTICE ELIAS: I do not think I thought they related to statutory instruments but I think I thought that they were related to particular user rights, historic user rights, I think, in each case.

MR STRACHAN: My Lord, I am very hesitant to cut my learned friend off. As I understand it, there is no power for the High Court to grant permission to the Court of Appeal on a section 289 case.

MR JUSTICE ELIAS: Ah, yes.

MR STRACHAN: I do not mean to take the wind out of my learned friend's sails.

MR JUSTICE ELIAS: Yes, that is right. I am sure I have heard of that before. Yes. It is a second appeal, is it not, and so it is for the Court of Appeal to decide.

MR PIKE: Well, I am grateful to my learned friend. I had missed that. I think I do recall that. I have seen that too.

MR JUSTICE ELIAS: (inaudible) making the distinction. If I did, I did not mean to.

MR PIKE: My Lord, yes. If my only recourse is to the Court of Appeal, so be it. I will not trouble you further on that, my Lord.

MR JUSTICE ELIAS: Thank you both.