Fox v First Secretary of State

MR JUSTICE SULLIVAN: This is an appeal under section 289 of the Town and Country Planning Act 1990 ("the Act") against an Inspector's decision contained in a decision letter dated 11th October 2002. In that decision letter the Inspector dealt with two separate appeals that had been made by the appellant.

The first was an appeal against an enforcement notice which had been issued by the second respondent and which alleged that there had been a change of use of agricultural land to a mixed use for agriculture and the keeping of horses, together with the erection of a building and the siting of sheds as part of the unauthorised change of use. The second appeal was against a refusal of planning permission by the second respondent. The development proposed had been a "mixed use equestrian/agricultural".

The Inspector dismissed both appeals. There has been no challenge to his decision to dismiss the planning appeal. These proceedings under section 289 are confined to the Inspector's decision in respect of the enforcement notice. The land in question, Bowd Field, Desborough Road, Stoke Albany, is a field of approximately 6.2 hectares in extent in the open countryside. There is a public footpath near to the north western part of the boundary. The northern half to two-thirds of the field lies within the Welland Valley Special Landscape Area, as designated in the Kettering Borough local plan.

The background to the enforcement notice appeal is as follows. It would appear that in about February 2001 the appellant commenced negotiations to purchase the field. The reasons behind the purchase were explained in a letter from an architect, acting on his behalf, to the local planning authority when submitting a planning application for the land. The letter explained that the appellant had owned racehorses for six years. Initially they had been stabled in various locations in England Wales, but at present were being kept locally. The letter continued:

The planning application form sought permission for the keeping of horses, the erection of a stable building and improvements to vehicular access. But it was withdrawn after officers had indicated that they would be recommending it for refusal. Following that refusal, according to the appellant's response to the council's requisition for information, he purchased the land in June 2001. About a month or so later the council was notified that works were taking place on the field. Council officers went out and inspected the site on 10th July 2001. The results of that inspection are set out in the council's appeal statement. The appeal was dealt with by written representations, both the appellant and the council putting in written statements. The council's statement included the following:

The council's statement also referred to a telephone conversation between a council officer and the appellant on 12th July 2001. Paragraph 6.5 of the statement described that conversation as follows:

A letter in response to that telephone conversation was sent to the appellant. That letter formed part of the council's appeal statement. It was dated 12th July 2001, referred to change of use of land for the keeping of horses, and said:

On 10th August 2001, according to the council's statement, it was further notified about the erection of a stable building in a corner of the field, and although the appellant was advised to stop work, construction continued.

On 1st October 2001 the council received the planning application that was the subject of the second appeal before the Inspector. That was for permission for a mixed use equestrian/agricultural. The plans submitted with that application were very similar, according to the council, to the plans submitted with the earlier withdrawn application.

The second planning application was refused by the council on 13th October 2001 essentially for two reasons. Firstly, because of the adverse effect on the special landscape area, and secondly, because the council considered that this isolated site was not suitable for the establishment of stables and the keeping of horses.

Further correspondence ensued between the appellant and the council. The appellant purported to notify the council that a general purpose agricultural building was proposed, but the plans submitted were the same as the application that had been refused, and the council returned the notification in view of the fact that the development referred to had already been commenced. Another application was made in January 2002 for an agricultural building. Again, the same plans were used, and that was refused permission on 12th March 2002. It is of significance, in view of one of the submissions made by Ms Sheikh on behalf of the appellant, that there was no appeal against the council's decisions in respect of these proposals for an agricultural building.

In due course the council issued an enforcement notice alleging a change of use to a mixed use for agriculture and the keeping of horses. The Inspector carried out an accompanied site visit of the land on 30th September 2002, before issuing his decision letter on 11th October. In that decision letter the Inspector dealt, firstly, with the ground (b) appeal. He noted that this ground related only to the alleged change of use; that is to say, not to the buildings. Paragraph 5 of the decision letter says this:

The Inspector's conclusion on the ground (b) appeal is set out in paragraph 10 of the decision letter as follows:

The Inspector then turned to the ground (c) appeal, and said that it was based on the contention that both the previous and the current use of the land were agricultural. The Inspector dealt with this in paragraphs 12 to 15 as follows:

Turning to the ground (a) appeal, the Inspector said that the main issues were, first, the effect of the development on the character and appearance of the area, and, second, the suitability of the site for the intended use. In considering those matters, the Inspector first set out the relevant planning policies for the purposes of section 54A of the Act. He also referred to national policy guidance in PPGs, and to a nature conservation strategy for Northamptonshire. He described the appeal site, referred to its location within the special landscape area, and then said this in paragraph 27:

The Inspector then dealt with the second main issue and, whilst agreeing with the council that the appellant's wish to increase the safety of his horses was understandable, tended also to concur with the council that this isolated location did not seem particularly suitable, especially in the light of recent attacks against horses. He said that he was not certain that on its own this concern would have led him to refuse planning permission, but it reinforced him in his views with regard to the first main issue and his plan-led conclusions in respect thereof.

In paragraph 35 he concluded in respect of the ground (a) appeal that:

He dealt with the ground (f) appeal in paragraph 36, saying:

On behalf of the appellant, Ms Sheikh has submitted that there are five material errors of law in the decision letter. Her first ground is that the Inspector failed to apply the correct test in determining whether the land was being used for grazing. It is said that the Inspector incorrectly based his conclusions on the observation of a man with a bucket feeding horses from it, and simply on the basis of this, the Inspector concluded that horses were not being turned out on the land with a view to feeding them from the land.

Ms Sheikh referred to the decision in Sykes v Secretary of State for the Environment and Another [1981] 42 P & CR at page 19. She submitted that the correct test was to consider what was the predominant use of the land. The mere fact that horses may on occasion be fed from another source was not evidence that they were not primarily using the land for grazing. On page 23, Donaldson LJ said this:

It is submitted on behalf of the appellant that the Inspector did not apply this test and did not consider whether the land was predominantly being used for grazing, notwithstanding occasional feeding of the horses from another source. It is further submitted that there was no evidence before the Inspector which would have led him to conclude that the land was not being used predominantly for grazing.

With regard to paragraph 15 of the Inspector's decision letter, it is said that the Inspector took into account an irrelevant factor; that is to say that the horses were racehorses. He had said that this supported his impression that the horses were not being kept for agricultural production, whereas the decision in Sykes made it clear that, provided the land is being used for the grazing of horses, it does not matter whether they are racehorses or carthorses.

It is important to bear in mind when considering Donaldson LJ's dicta in Sykes that that was an all or nothing case. The enforcement notices in that case alleged that there had been a change of use from agriculture to use as a "paddock" or "horse paddock", respectively. The appellants against the enforcement notices were contending that their land was being used for grazing and that their use was, therefore, agricultural.

In the present case the council accepted that some agricultural use was being made of the land. Its contention was that there was a mixed use for agriculture and the keeping of horses. The Inspector correctly summarised the appellant's case under ground (c): that both the previous and the current use of the land was agricultural. However, the Inspector, on analysing the evidence, found that there was clear evidence, not least from the conversation of 12th July 2001, that the horses on the land were having feed brought to them.

It is important to bear in mind that the onus of proof in a ground (c) appeal lies upon the appellant. Thus it was for the appellant to persuade the Inspector that there was only one predominant, agricultural use of the land, rather than a mixed use for agriculture and for the keeping of horses. It is quite wrong to portray the Inspector's decision letter as though he simply focused upon a single observation by a council officer on 29th November 2001, when a man was observed to be feeding the horses from a bucket. The Inspector looked at the matter in the round. He had already had regard to the number of horses involved, and rejected the contention that there was simply an ancillary use for the grazing of one or two horses. He noted that at times when the council inspected the site there had been four horses on the site, and, moreover, that the horses appeared to have been brought on to the land prior to the sheep. Whether the current use of the land was agricultural, or whether there was a mixed use, with the keeping of horses on the land being a use in its own right, was pre-eminently a question of fact and degree for the Inspector having regard to all of the evidence. He was entitled to have regard to the evidence dealing with the extent to which the horses on the land were supplied with food from elsewhere, and also to the fact that there was a feeding manger within the stable building at the time of his site inspection.

Looking at all of that material, the number of horses, the council's own observations, what he saw with his own eyes on the site, the Inspector was entitled to conclude that, as matter of fact and degree, the current use of the land was not simply an agricultural one including the grazing of horses, but was the mixed use alleged in the enforcement notice. The Inspector referred to the relevant authority: Sykes. There is no force in the submission that, having correctly referred to the relevant authority, he then proceeded to misdirect himself, bearing in mind that the question in this case was one which did not arise in Sykes: was there a mixed use, as alleged in this enforcement notice.

While it is perfectly true that if land is being used for grazing, it matters not whether it is being grazed by a racehorse or a carthorse, it is important to set paragraph 15 of the decision letter in context. The Inspector had already concluded in paragraph 14 that, as a matter of fact and degree, there had been a change to a mixed use for agriculture and the keeping of horses. Clearly, that conclusion would have been falsified if the horses being kept on the land were being kept for agricultural production, for example to work the land. It was necessary for the Inspector to ask himself this final question: were the horses racehorses rather than horses that were being kept for any kind of agricultural production? That was not the reason that he concluded that there had been a change of use to a mixed use; it merely meant that a further possible argument that might have been advanced on behalf of the appellant fell away.

The second ground of challenge relates to the manner in which the Inspector dealt with the ground (a) appeal. It is said that he failed to take into account several material considerations. He failed to consider the substantial conservation improvements described in the FWAG report. Public support for those improvements was evidenced in the petition signed by 300 local residents. The Inspector, however, had said in paragraph 28 that those works "should not, in my view, be seen as a justification for inappropriate development". Thus it was submitted that he had failed to take account of them as a material consideration to weigh against the adverse effect on the landscape of the building.

Second, it was said that he failed to have regard to the question whether the new development was an improvement upon the earlier derelict crew yard that had existed on the site.

Third, it was submitted that since the Inspector's only concern related to the fact that the buildings were close to a public footpath, he failed to consider whether that concern could have been addressed by the imposition of suitable conditions.

If one reads the decision letter as a whole, it is plain that the Inspector had regard to the petition. He referred to it in paragraph 5 of his decision letter, noting that the appellant, as a local retired businessman, was seeking support for development which would allow him to provide shelter for his horses and livestock. He referred again to the degree of support in paragraph 27 of his decision letter, noting that the conservation works, for example the restoration of the overgrown pond and the laying of border hedges, had "clearly been welcomed by many". He also specifically referred to the FWAG report. Thus it cannot be said that he failed to have regard to those matters. However, having considered them, he took the view that they could not be seen as a justification for inappropriate development. He then went on to explain in the succeeding paragraphs of the decision letter why he considered that this was inappropriate development in this special landscape area. It cannot be said that the Inspector erred in adopting this approach. He was entitled to conclude that these conservation works, whilst desirable in themselves, did not justify inappropriate development.

So far as the crew yard is concerned, the Inspector specifically referred to it. He noted that it had become derelict and eventually fell down. On the evidence before him it fell down in 1980, and therefore it is difficult to see what its relevance could have been in 2002. However, it is clear that the Inspector was well aware of the argument that the new development was an improvement upon that which had fallen down, because in paragraph 29 of his decision letter he went on to describe the effect of the recent developments associated with the current use of the land. He described those developments, including the new access and the construction of buildings and fencing and so forth, but he concluded that they adversely affected the otherwise largely unspoilt character and appearance of this special landscape area.

So far as conditions are concerned, this is not a case where the claimant was arguing for the imposition of any particular condition. As is customary, the council, in its written statement, set out as its fallback position the conditions which should be imposed if the Inspector disagreed with its conclusions. The appellant's response was to say that the conditions related to landscaping and boundary treatment:

That is as far as it went, but it is plain from the approach adopted by the Inspector in his decision letter that he agreed with the council on both of the main issues. He did not reach the council's fallback position. The appellant had not suggested any specific condition, on the contrary he had suggested that conditions were unnecessary, and merely indicated that he would be content to follow the council's fallback position. Since the Inspector never reached the council's fallback position, there was no need for him to consider the imposition of conditions in any detail.

I turn, then, to the third ground of challenge. It is said that in respect of the ground (b) appeal, the Inspector reached conclusions which were inconsistent with the evidence. Reliance is placed by Ms Sheikh upon the contents of the two letters from the veterinary surgeon and from Astley Grange Stud referred to by the Inspector in paragraph 9 of the decision letter. The letter from the Stud, dated 9th April 2002, said:

The vet said that he was the principal veterinary surgeon looking after Astley Grange's horses and foals. He said that one of the mares was due to foal next April or May 2002. His letter concluded:

In its written representations the council had argued that the appeal site was being used as an extension of the appellant's existing activity of breeding racehorses. The Inspector rightly said that this was not one of the matters that was complained of in the enforcement notice. He was perfectly entitled, against that background, to say that the letters from the veterinary surgeon and the Stud which dealt with breeding/foaling activities did not provide evidence that the appeal site was not being used for the keeping of horses. That conclusion is plainly correct on the face of the letters themselves.

The fourth ground of challenge submits that the Inspector took into account an irrelevant consideration: namely, the fact that the appellant had submitted planning applications to introduce a mixed use of the kind alleged in the enforcement notice. It is said that these matters were irrelevant for the purposes of determining the ground (b) appeal. Ms Sheikh submitted that the question under ground (b) was simply: had the alleged breach of planning control occurred? The appellant's intention was irrelevant to that matter. She referred me to the decision of the Court of Session Inner House in East Dunbartonshire Council v Secretary of State for Scotland and another [1999] 1 PLR at page 53. That case was concerned with whether or not a developer had carried out a specified operation for the purpose of beginning a development within the time limits imposed by conditions. The appellant council's submission is recorded by Lord Coulsfield as follows (page 58D):

In response to that submission, Lord Coulsfield said:

Ms Sheikh submits that likewise, in the case of appeals under ground (b), it is impermissible to introduce a gloss upon the plain words of the statutory code, which are simply concerned, not with intention, but with the question of fact, whether or not the development alleged in the notice has taken place.

On behalf of the Secretary of State, Mr Strachan accepted that an appellant's intention could not possibly be determinative as to whether or not a particular change of use had taken place. But he submitted that the Inspector did not approach the matter in that way. Whilst intention could be determinative, it was relevant. If one is asking whether there has been a change from use A to uses A and B, the fact that the appellant said that he intended to change to uses A and B is relevant as part of the overall picture. In the present case, save for agricultural use, there had been no prior use of the land. Horses were then introduced on to the land. One is entitled to ask why that was done, in attempting to answer the question whether the horses are being kept on the land. It is part of the overall picture. Thus an appellant's intentions can be relevant, but they will be determinative.

The present case can be distinguished from the East Dunbartonshire case, where the local planning authority was trying to place a gloss upon the statute and superimpose upon the carrying out of operations the proposition that they had to have been carried out with a particular intention. No such gloss has been added to the statute by the Inspector in the present case. He was simply asking himself the question of fact under ground (b): was the land being used for a mixed use for agriculture and the keeping of horses? There is no doubt that the horses were on the land. The appellant was arguing that one or two horses were being grazed as an ancillary use. In evaluating that assertion, the Inspector was perfectly entitled to have regard to the earlier stated intentions of the appellant to establish not a use ancillary to agriculture, but a mixed use. Indeed, the Inspector had before him an appeal seeking a permission for a mixed use equestrian/agricultural, utilising substantially the same buildings as those which had been erected on the site.

It was also submitted on behalf of the appellant that the Inspector failed to consider whether the building that had been erected conformed with the stipulations for permitted development for agricultural buildings in Article 3 of Schedule 2 Part 6 Class A to the Town and Country Planning (General Permitted Development) Order 1995. The short answer to that proposition is that it was not argued on behalf of the appellant that the building was permitted development. There was a reference in the claimant's representations to the size of the building, but no suggestion that it was permitted development. Even if there had been such a suggestion, it would have been doomed to fail once the Inspector had concluded that the land was not simply being used for agricultural purposes, it was being used together with the buildings for a mixed use for agriculture and the keeping of horses. The erection of a building for such a mixed purpose is not permitted development.

Lastly, it is submitted that the Inspector failed to undertake any balancing exercise to decide whether the removal of the building was a disproportionate obligation. Its removal would be quite disproportionate because shelter and storage would be consistent with the grazing of animals.

The Inspector dealt with the way the appellant had put the appeal under ground (f); that is to say that the requirements of the enforcement notice were excessive. The particulars in support of ground (f) referred to a questionnaire that was completed and returned, and contended that there was no consultation in accordance with the Good Practice Guide for Local Planning Authorities. The matter was further referred to in subsequent representations:

Hence, the Inspector's observations in response to the ground (f) appeal, that the lack of consultation did not explain how this might have affected the steps required by the notice, and in so far as the ground was expanded, it was by way of introducing arguments on the planning merits that the Inspector had considered elsewhere when dealing with the ground (a) appeal. The Inspector was obliged to deal with the grounds as put before him. His response to those grounds was impeccable.

So far as the wider issue of a balancing exercise is concerned, the Inspector was, of course, perfectly prepared to balance the suitability of this particular site for the keeping of horses against the impact of the development upon the special landscape area. However, he found against the appellant on both aspects of the balance. Not merely was there an adverse impact on the special landscape area, but this isolated location was not particularly suitable for the keeping of horses. Thus, when the balance was struck, it came down decisively against the appellant.

If one stands back and looks at the case overall, it is plain that the appellant was quite determined to use this land for keeping his horses, despite the fact that he was warned by the planning authority that he would be unlikely to be granted planning permission for such a use. He persisted and received an enforcement notice. I have already referred to the fact that the onus lies upon an appellant to an enforcement notice in respect of grounds (b) and (c). Thus the appellant had to prove on the balance of probabilities either that the change of use alleged in the enforcement notice had not taken place and/or that it was not in breach of planning control. It was, of course, open to the appellant to ask for an enquiry and to give detailed evidence on oath as to the extent to which the horses were or were not being fed from other sources, and to give detailed evidence as to the extent to which his original intentions, as expressed in the withdrawn application, had or had not been modified. He chose not to do so, and if one looks at the totality of the material before the Inspector, it is not in the least surprising that he reached the conclusions set out in his decision letter. It is difficult to see how he could reasonably have reached any other conclusions on the totality of the material before him.

For all of these reasons, this appeal must be dismissed. Thank you both very much.

MR STRACHAN: My Lord, I am grateful. I would ask for an order in those terms, dismissing the claimant's appeal. My Lord, I would also ask for an order that the claimant pay the first defendant's costs. My Lord, I do not know if your Lordship has a copy of the schedule of costs.

MR JUSTICE SULLIVAN: Is it £3,867.25; is that the one?

MR STRACHAN: I do not, as I might otherwise do, have a schedule from the claimant to draw comparisons with, but I do submit, although I have not heard anything to the contrary yet, that those are reasonable costs.

MR JUSTICE SULLIVAN: I do not know that your solicitor has been here for four hours. He has been happily surprised by the length of the case.

MR STRACHAN: Your Lordship is right in that in the sense that --

MR JUSTICE SULLIVAN: Should I knock anything off, and if so, what?

MR STRACHAN: My Lord, it should be approximately an hour and a half, I believe. So, my Lord that would be --

MR JUSTICE SULLIVAN: Does the Treasury Solicitor work in hours or half hours? I do not know.

MR STRACHAN: Subject to a deduction of approximately £210, I believe, I have calculated it, broadly speaking, as £3,657.25.

MR JUSTICE SULLIVAN: Let us see if Ms Sheikh objects to either the principle or the detail.

MS SHEIKH: My Lord, I do not resist either the principle or the detail.

MR JUSTICE SULLIVAN: Subject to the Treasury Solicitor not having to be here quite so long as he feared. The appeal is dismissed. The appellant is to pay the first defendant's costs; those costs to be summarily assessed in the sum of £3,657.25.

MR STRACHAN: Thank you, my Lord.