Barnett v Secretary of State for Communities and Local Government & Anor

J U D G M E N T

Introduction

Factual background

There then follow a number of conditions which are not relevant for present purposes.

"5. The appeal site has been laid out as a garden with a swimming pool, an adjoining building used for barbeques and storage of garden furniture, a tennis court with a 2.8m high chain link fence, a vegetable plot and an orchard.

6. The garden extension occupies part of an area that used to contain Nissen huts used as seasonal accommodation for hop-pickers until hop growing ceased on the estate in 1968. The huts were then used for livestock and agricultural storage but fell into disrepair and were progressively demolished leaving a neglected patch of land. Planning permission was granted in 1989 for a farm worker's dwelling to be erected on that site, but the permission was not implemented and it was superceded by the erection of Miscombe Manor immediately to the south. The appellant cleared and levelled the appeal site during the course of building Miscombe Manor."

Appeal A was in respect of an enforcement notice ("Enforcement Notice A") which allege a change of use of the appeal site to residential use. Appeal B was in respect of an Enforcement Notice ("Enforcement Notice B") which alleged that the tennis court with chain link fence and the swimming pool and pool building had been constructed without planning permission. Before the Enforcement notices were issued the claimant had attempted to regularise the position by applying for retrospective planning permission for the continued use of the appeal site as a garden, the retention of the swimming pool and pool building and the retention of the tennis court and chain link fence. All three applications (applications D, E and F) were refused by the second defendant and the claimant's appeals against those refusals were appeals D, E and F respectively.

At the enquiry the claimant contended that the appeal site had ceased to be agricultural land and had become a garden in 1995, more than 10 years before the enforcement notices were issued, on 19 April 2006. It was submitted that the tennis court and chain link fence and the swimming pool and pool house were all permitted development within the curtilage of Miscombe Manor.

The Inspector concluded that the use of the appeal site for residential purposes as part of the curtilage of the dwelling house commenced less than 10 years before the enforcement notices were issued. He concluded that Miscombe Manor was substantially completed and occupied in 1998. In paragraphs 12 and 13 of the decision letter, he said:

"12. The Council's aerial photograph taken in 2000 does not in my view support the appellant's contention. In 2000 much of the appeal site appeared to be bare ground, and vehicle tracks can be discerned leading to an area of hummocky ground that looks as if it contained tipped materials. The condition of the land at that time can be distinguished from the appearance of the gardens within the permitted house curtilage. In my view the 2000 aerial photograph shows no evidence of residential garden use. The 2005 aerial photograph shows the extent of the transformation of the appeal site that subsequently occurred.

13. The appellant's statement asserts that the appeal site ceased to be agricultural and became a garden in 1995 but, apart from the contrary photographic evidence, this is also inconsistent with the statement elsewhere in the same document that the area in question was levelled and sown with grass seed and that 'this was satisfactorily completed by about the end of 1998."

Those conclusions of the Inspector were not challenged in these proceedings.

"Is this a full application for alteration/addition to an existing single dwelling?" If the answer to that question was "Yes", as it was, the applicant was instructed to answer only some, but not all, of the remaining questions on the application form. Thus, the claimant's agent was not required to, and did not, answer question B2, which asked whether the application was for full permission for new works/operations, change of use; question C2, which asked for the area of the appeal site; or question C7, which asked for information about the existing use of the site. Question C1 asked:

"Does the applicant own or control any adjoining land?" The answer "No" to that question was clearly wrong. The answer to question C12, which asked for information as to the materials to be used was "Please refer to drawings." Question C13 asked for the plans/drawings (including location plan) enclosed with the application. Two plans were listed. 9813:2.01 and 9813:2.02 (drawings 01 and 02 respectively). The former showed the floor plans and the roof plans of proposed alterations at scale of 1:100, a site plan at scale of 1:500 and a location plan at scale of 1:5000. The latter showed the elevations of the dwelling as extended and altered to scale of 1:100 and incorporated a schedule of materials. The application was registered by the second defendant on 25 June 1998. At the beginning of October 1998, the defendant requested further information by telephone. There is no note of the request but the estate company's agent responded in a letter dated 5~October 1998:

"I refer to the above planning application and your recent telephone call requesting additional information in connection with the proposal.

I can confirm that there is at present no office accommodation within the estate, which in total extends to approximately 1,000 acres.

The office accommodation is required to enable the estate to be run in a more efficient and effective manner. The office would also provide an area where both employees and visitors to the estate can be seen without them having to use the house, as is the case at present. ..."

The site address was given as "Miscombe Manor, Buriton Petersfield, Hampshire."

Planning permission was granted, subject to a number of conditions. Those conditions did not include any conditions reserving matters such as access, layout or appearance for subsequent approval. They did include condition 2:

"The external materials to be used shall match, as closely as possible, in type, colour and texture those of the existing building",

the reason for which was "to ensure that a harmonious visual relationship is achieved between the new and the existing developments."

And condition 5:

"Before any part of the development is occupied a minimum of 3 car parking spaces shall be provided within the curtilage of the site and thereafter maintained and kept available for the parking of vehicles."

For which the reason given was:

"To ensure adequate car parking provision within the site in accordance with the adopted standards of the Planning Authority."

The decision notice was accompanied by a notification of certain matters, for example the right to appeal against an adverse decision, and "Important Notes":

"Any failure to adhere to the details of the plans hereby approved or to comply with any conditions detailed in this notice constitutes a contravention of the provisions of the Town and Country Planning Act 1990, in respect of which enforcement action may be taken or a breach of condition notice may be served. If it is desired to depart in any way from the approved proposals, you should consult the Council."

The Inspector's approach

"16. The Council refers to the legal principles applicable to the use of documents to construe a planning permission, summarised in the case of R v Ashford Borough Council ex parte Shepway District Council [1998]. There, it is stated that the general rule is that in construing a planning permission that is valid and unambiguous, regard may only be had to the planning permission itself and its conditions. This rule excludes reference to the planning application unless the application is expressly incorporated by words such as 'in accordance with the plans and application'.

17. In this case the planning permission does not expressly incorporate the application and plans except that it includes the statement 'as amplified by letter received 17.10.98 and plan received 30.11.98'. That plan is not the drawing on which the appellant relies, but is a larger scale drawing on which the application site is shown with a red line on an ordnance survey base. It can be established from the positions of the former Nissen huts that the site shown there is the same as the 1995 permitted curtilage and does not include any part of the present appeal site. In my opinion the 1998 planning permission does not on the face of it permit the change of use of any part of the appeal site to residential purposes.

18. If the view were taken that the Council's failure to expressly incorporate the extension drawings in the permission as an oversight, and the drawings are constructed as part of the permission, then there would be an ambiguity between the red line on drawing 9813.201 and the red line on the plan subsequently received we the Council on 30.11.98. The building extensions do not involve any operational development within the present appeal site, and I therefore think it unlikely that the architect who drew up the extension plans deliberately intended to extend the curtilage, especially since it is correctly shown on the later plan. The conditions attached to that do not require any works to be carried out within the appeal site.

19. If it were necessary to refer to the planning application form to resolve any ambiguity, the application is there described as being for alterations/addition to an existing single dwelling, and the description of the proposals does not include the change [of] use of any land.

20. I consider that the plan received by the Council on 30.11.98 correctly identifies the application boundary for the purposes for which the application was submitted. The inclusion of part of the appeal site within the site plan on drawing 9813.201 does not in my opinion confer lawfulness on that part of the garden extension. On the evidence before me I conclude as a matter of fact and degree that the 1998 permission did not grant planning permission for an extension to the residential curtilage of Miscombe Manor. The appeal on ground (c) fails in respect of appeal A."

In view of that conclusion, the Inspector further concluded that permitted development rights did not apply to the appeal site.

"30. The Council accepts that the garden extension and leisure facilities have limited visibility from public vantage points, but stresses that the primary objection is on the policy ground that the countryside should be protected from unnecessary development ...

31. The appellant does not argue that the garden extension and leisure facilities are necessary in the terms of policies C2 and GS3, but contends that such domestic facilities do not need to be justified in those terms. I my view that might be argued in respect of proposals for ancillary facilities within established residential curtilages, but I am satisfied that there is no exemption from the requirements of the policy for the extension of residential curtilages onto agricultural land. In my opinion the garden extension, incorporating the swimming pool and tennis court can not be justified in policy terms as being necessary for any of the limited purposes for which a rural location is essential. The development therefore conflicts with the requirements of structure plan policy C2(i) and local plan policy GS3(a)."

Although the Inspector did consider the claimant's position on the basis that the swimming pool and the tennis court could be re-located in the 1995 curtilage under GPDO permitted development allowances, he did not consider the planning merits of permitting the retention of the use of the appeal site as part of the curtilage of Miscombe Manor and the retention of the tennis court on the basis of the claimant's primary case that about half of the appeal site (including the swimming pool) was within the 1998 permitted curtilage of the dwelling house. It follows that the application under Section 288 must be allowed if the Inspector wrongly rejected the claimant's submissions as to the effect of the 1998 permission.

The claimant's subsidiary grounds

"E. The provision within the curtilage of a dwellinghouse of any building or enclosure, swimming or other pool required for a purpose incidental to the enjoyment of the dwellinghouse as such, or the maintenance, improvement or other alteration of such a building or enclosure.

E.1 Development is not permitted by Class E if - ... (f) in the case of any article 1(5) land or land within the curtilage of a listed building, it would consist of the provision, alteration or improvement of a building with a cubic content greater than 10 cubic metres."

Since the appeal site is within an AONB it is "article 1(5) land."

"Building" is defined by article 1(2) of the GPDO, "unless the context otherwise requires" as follows:

"Building -

(a) includes any structure or erection and, except in Parts 24, 25 and 33, and Class A of Part 31 and Class C of Part 38 of Schedule 2, includes any part of a building, as defined in this article; and

(b) does not include plant or machinery and, in Schedule 2, except in Class B of Part 31 and Part 33, does not include any gate, fence, wall or other means of enclosure."

This definition of a building, as including any structure or erection, is consistent with the definition of building contained in Section 336(1) of the Act .

The reference to "swimming or other pool" would be otiose if pools were to be treated as buildings (structures) for the purposes of Class E, including paragraph E.1(f).

Drawing a distinction between "buildings", which are usually above ground, and pools, which are usually sunk into the ground, was readily understandable if regard was had to the underlying purpose of E.1(f), namely to protect the amenity of certain sensitive landscapes, areas, and buildings.

On behalf of the first defendant, Mr Sharland submitted that Article 1(2) indicated those cases by reference to Parts of the GPDO, Part 24, 25 et cetera, where a more restrictive interpretation of "building" was to be applied. Since there was no such indication in respect of Class A in Part 1, the context did not require "building" to be given a narrow interpretation. It included structures, and a swimming or other pool was a structure. In reply to the question why then was there a need for words "swimming or other pool" in Class E, Mr Sharland replied that they were included for the avoidance of doubt.

Although ground levels can be artificially raised or lowered, the GPDO necessarily adopts a "broad brush" approach to the essential characteristics of the various classes of permitted development and there is an obvious distinction between most pools, where much of the cubic content will tend to be below the surrounding ground level, and most buildings where, because most of the cubic content will tend to be above the surrounding ground level, there will be a greater potential for adverse visual impact.

The exceptions to the definition of "building" in Article 1(2) are concerned, not with those cases where structures are not to be regarded as buildings, but with those cases where it would be inappropriate to treat parts of certain kinds of apparatus falling within the definition of "building" because they are structures (for example telecommunications antennae) as though they were also "buildings". I therefore conclude that the Inspector erred in his interpretation of paragraph E.1(f), but I accept Mr Sharland's submission that the error is not material because the Inspector, in paragraph 55 of the decision letter, dealt with the merits of the claimant's fallback argument upon the basis of both interpretations of paragraph E.1(f):

"55. I accept that the fallback argument adds weight to the appellant's case, in that the leisure facilities would be in more open view, particularly on the appellant's interpretation of the GPDO . However, even in those circumstances there would still only be limited visibility of the facilities, and they would be seen in close association with the house. I am not convinced that the potential for increased visibility of a pool and tennis court within the existing garden would be sufficient to justify the encroachment of the residential curtilage onto agricultural land to the north of the house." (emphasis added)

"30. The Council accepts that the garden extension and leisure facilities have limited visibility from public vantage points, but stresses that the primary objection is on the policy ground that the countryside should be protected from unnecessary development ...

36. ... The Council's principal objection is that the extended garden with tennis court, swimming pool and pool building has introduced an unnatural, suburban style of development that detracts from the rural character of the area."

The Inspector accepted, in paragraph 34, that in terms of visual impact the development did not materially harm the landscape and accepted in paragraph 38 that the "tranquility" of the AONB was not materially affected. However, he concluded in paragraph 39:

"I consider that the intrinsic local character of the countryside has undoubtedly been changed and has become less rural as a result of the development. I conclude that the garden extension, and particularly the tennis court, swimming pool and pool building have adversely affected the character of the countryside, contrary to the relevant criteria within policies E7, C1 and GS."

Hence his conclusion in paragraph 58:

"I consider that the change of use of agricultural land to use as part of the curtilage of the dwellinghouse, the tennis court and fencing, the swimming pool and pool house building conflict with policies for the protection of the countryside and that they detract from the rural character of the area."

The claimant's submission amounts, in effect, to an assertion that the change to the character of the countryside, whether one describes that change, as the second defendant did, as a change to "an unnatural suburban style of development", or, as the Inspector did, as a change to a "less rural" character, is acceptable so long as it cannot be seen from public view points. To put the submission at its simplest, it is one of "out of sight out of mind". While the lack of visual impact was a relevant consideration, as the Inspector recognised in paragraph 59 of the decision letter, he was entitled to conclude that it did not overcome the policy conflict and that there was an unacceptable effect on the rural character of the area. The outcome of both the appeal under Section 289 and the application under Section 288 therefore turns on the claimant's principal submission that the 1998 planning permission granted permission for the extension of the curtilage of the dwelling house that was permitted in 1995.

The claimant's principal submission

"(1) The general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions: see Slough Borough Council v Secretary of State for the Environment (1995) JPL 1128, and Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196.

(2) This rule excludes reference to the planning application as well as to other extrinsic evidence, unless the planning permission incorporates the application by reference. In that situation the application is treated as having become part of the permission. The reason for normally not having regard to the application is that the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application: see Slough Borough Council v Secretary of State (ante); Wilson v West Sussex County Council [1963] 2 QB 764; and Slough Estates Limited v Slough Borough Council [1971] AC 958.

(3) For incorporation of the application in the permission to be achieved, more is required than a mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed, such as '... in accordance with the plans and application ...' or '... on the terms of the application ..., ' and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the description of the development permitted: see Wilson (ante); Slough Borough Council v Secretary of State for the Environment (ante).

(4) If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity: see Staffordshire Moorelands District Council v Cartwright (1992) JPL 138 at 139; Slough Estates Limited v Slough Borough Council (ante); Creighton Estates Limited v London County Council , The Times , March 10, 1958.

(5) If a planning permission is challenged on the ground of absence of authority or mistake, it is permissible to look at extrinsic evidence to resolve that issue: see Slough Borough Council v Secretary of State (ante); Co-operative Retail Services v Taff-Ely Borough Council (1979) 39 P&CR 223 affirmed (1981) 42 P&CR 1."

In the present case, the 1998 permission did not expressly incorporate the application or the application plans. Mr Newberry submits that it did not need to expressly incorporate the latter because it was, on its face, a full and not an outline permission for building operations.

"3(1) Subject to the following provisions of this regulation, an application for planning permission shall -

(a) be made

(i) on a form provided by the local planning authority; ...

(b) include the particulars specified in the form and be accompanied by a plan which identifies the land to which it relates and any other plans and drawings and information necessary to describe the development which is the subject of the application;

...

(2) In the case of an application for outline planning permission, details need not be given of any proposed reserved matters.

..."

Outline planning permission and reserved merits are defined in Regulation 2 as follows:

"'outline planning permission' means planning permission for the erection of a building, subject to a condition requiring the subsequent approval of the local planning authority with respect to one or more reserved matters, that is to say -

(a) access,

(b) appearance,

(c) landscaping,

(d) layout; and

(e) scale."

There is no suggestion that the extension was not constructed in accordance with drawings 01 and 02. If it had not been constructed in accordance with the drawings and as a result it was considerably larger or taller than shown in these drawings, or of a different design or in a different position in relation to the existing dwelling, then the second defendant would have been the first to assert that the plans formed part of the planning permission, because they described what had been permitted.

In the Ashford case Keene J was considering the proper interpretation of an outline planning permission. The issue was whether, in construing that planning permission, regard could be had to a letter which had been included in an environmental statement that had accompanied the application for planning permission. The reason given for normally not having regard to the application is that "the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application." (see principle (2)).

The permission did not refer to any particular floorspace. The Council's attempt to impose such a limit by reference to the description of the development in the application form was rejected. The Court of Appeal concluded, in essence, that the public were entitled to take the grant of outline planning permission at face value and should not be "required to consider whether there is any discrepancy between the permission and the application." (See page 566). Had there been a full planning permission for the erection of a "B1A office development" any member of the public would have known that it was not simply a permission in principle for some form of office development, but a permission for a particular office development as described in plans and drawings, whether or not those plans or drawings were expressly referred to in the decision notice. Without the plans and drawings, the decision notice on its own would be, very obviously, incomplete. It would be necessary to look at the plans and drawings, not to see if there was some discrepancy between the application and the permission, but to ascertain the details of what had been permitted by the full permission.

Apart from a site plan there was no obvious need for any plans or drawings to describe that particular form of development, unlike a full permission for the erection, alteration or extension of a building which would, necessarily, be described in plans and drawings. In the latter case, looking at those plans and drawing could not sensibly be described at "cutting down" the permission by reference to the application. Without the plans and drawings it would be impossible to ascertain what had been permitted by a full planning permission for building operations.

This is not a departure from the Ashford principles. Proposition (2) in Ashford is correct in the context of an outline planning permission for a building or a planning permission for a change of use, both of which may appear to be a complete and self-contained description of the permitted development. There is one proviso in both of those cases: if a site plan has been submitted it will always be permissible to complete the picture by looking at that plan in order to ascertain the land to which the application (and hence the local planning authority's power to grant any permission at all) related. While planning permission may be granted for a reduced site, in the absence of any evidence to that effect the permission will relate to the submitted site plan. There is no need to expressly refer to the site plan in the decision notice because the public will know that, in addition to a decision notice, there will be, in accordance with statutory scheme, such a plan which will define the area to which the permission relates.

In the absence of any evidence to the contrary, the proper inference, in the light of the statutory framework contained in the Act and in the 1988 Regulations will be that the plans and drawings submitted with the application are those that have been approved and that they are an integral part of the permission that has been granted.

For these reasons the approach adopted by the Inspector in paragraphs 16 and 17 of the decision letter was wrong. Although there was no express reference to drawings 01 and 02 in the decision notice, because the permission was a full permission for the extension, they were approved and were an integral part of what was permitted in 1989.

It was not suggested by the second defendant at the enquiry that the plans submitted on 30 November 1998 had the effect of amending, or superceding, the site plan submitted by the application in accordance with Regulation 3(1) (b) of the 1998 Regulations. Indeed, in its evidence, the second defendant referred to drawing 01 as "the approved site plan".

Mr Newberry says that had the issue been raised at the enquiry he would have submitted that if there was any ambiguity as to the boundary of the application site in 1998, the only reasonable conclusion was that the ambiguity had to be resolved in favour of the red line shown on the drawing 01 for the following reasons:

(i) It was the plan which identified the land to which the application related in accordance with Regulation 3(1)(a).

(ii) The plan submitted on 30 November in did not purport to be a site plan. Its function was to show the extent of the Buriton Estate which the letter received by the second defendant on 7 October 1998 (also referred to in the planning permission) had described as extending to approximately 1000 acres.

(iii) The planning permission stated that the letter received on 7 October 1998 and in the plan received on 30 November 1998 "amplified" the proposal. There was no suggestion that they amended it in any way.

(iv) The plan submitted on 30 November 1998 is unsurprisingly, given its stated purpose, at a much smaller scale than the site plan on drawing 01 which is the scale of 5:00.

Section 75 of the Act provides that where planning permission is granted for the erection of a building the permission may specify the purposes for which the building may be used and if it does not the building may be used for the purposes for which it is designed (see Subsections (2) and (3)), but that is of no assistance in determining the permitted curtilage of a dwelling house.

The Inspector treated the drawings approved on appeal in 1995 as defining the permitted curtilage of the dwelling that became Miscombe Manor. It was not disputed by either the first defendant or the second defendant that he was right to do so. Since the only approved drawing which might be said to define the curtilage of the proposed dwelling house is a site plan to a scale of 1:500, Mr Newberry submitted that a similar approach should be adopted in respect of the site plan that formed part of the 1998 permission. I do not accept that submission. In my judgment there is in this respect a distinction to be drawn between an application for planning permission for a new, detached dwelling house, and an application for planning permission to extend or alter an existing dwelling house. In the former case the application for planning permission carries with it the necessary implication that the detached dwelling house will be surrounded by a curtilage which will be used for purposes incidental to the residential use of the proposed dwelling. While not every proposed dwelling, for example flats, will necessarily have a curtilage, a detached dwelling house is bound to have a curtilage. If nothing is said in the application about the extent of the proposed curtilage, the reasonable inference, in the absence of any contrary indication, will be that the red line on the site plan submitted with the application defines the proposed curtilage of the proposed new dwelling house. It will be reasonable to draw this inference whether or not the applicant has stated in the application form that planning permission is sought for a change of use for residential purposes in addition to permission to erect the new dwelling. That is because it is implicit in the application that the new dwelling will have a curtilage and the site plan then answers the only outstanding question: how extensive is the proposed curtilage?

That is not the case with an application to extend or alter an existing detached dwelling house. The dwelling house will have an established curtilage. The application to extend or alter the dwelling may or may not include an application to extend the curtilage and to change the use of the land within the extension to residential purposes incidental to the residential use of the dwelling house as extended or altered, but there is no necessary implication that it does include such an application. The Inspector referred in paragraph 18 of his decision letter to the intentions of the architect who drew up plan 01 and said that it was unlikely that the applicant had deliberately intended to extend the curtilage. Mr Newberry submitted that the architect's presumed intentions were irrelevant for the purposes of interpreting the 1998 permission. I agree, since the planning permission runs with the land (see Section 75(1) of the Act), the public must be able to rely on the approved plans themselves. Because it was proposed to extend Miscombe Manor, the extension would take up some of the existing curtilage, and there would be additional bedrooms,it is possible that the application included an application to extend the curtilage, but it did not necessarily include such an application. The application form does not suggest, for example in answer to questions B2 or C2, that it was proposed to extend the curtilage in addition to extending and altering the dwelling house.

The site plan in 1995 showed features, planting and a driveway which were all consistent with the proposed curtilage being defined by the red line on the site plan. Apart from the red line on the site plan, there is nothing on drawings 01 or 02 to suggest that it was proposed to extend the existing curtilage of the dwelling house.

While it may well be appropriate when interpreting plans to draw inferences from what is shown on them, just as it may be appropriate when interpreting documents to draw inferences from what is said in them, because planning permissions run with the land and the public are entitled to rely on the approved plans, it would not be appropriate to draw any inferences beyond those that are strictly necessary and where the inference to be drawn is the only inference that can reasonably be drawn. A possible inference is not sufficient.

Conclusions