Newland v Secretary of State for Communities & Local Government & Anor

Mr William Newland (“Mr Newland”) applies for an Order under Sections 288 and 289 of the Town and Country Planning Act 1990 (“the Act”) to quash the decisions of the Secretary of State for Communities and Local Government by her inspector Mr Felix Bourne (“the Inspector”) dated 12 October 2006, whereby she (i) dismissed appeals under Section 174 of Act against two enforcement notices issued by Waverley Borough Council (“the Council”) and refused planning permission on the deemed applications: and (ii) dismissed an appeal under Section 78 of the Act against a refusal of planning permission by the Council for use of the land for seven mobile homes with ancillary works.

This application concerns 1.28 hectares of land at Pollingfold Place, Ellens Green, Rudgewick, Horsham, West Sussex (“the site”).

On 5 November 1986, permission was granted by an inspector on appeal for a change of use for the site to “use as a caravan site for one residential caravan for a gypsy family [i.e. the Newland family] and for the retention of an existing access, hardcore surface, two concrete bases and a wooden building consisting of two stables and hay store”. This permission was subject to a number of conditions: the use was to be carried on only by the Newland family (Condition 2), the site was to be restored when the use had finished (Condition 3) and the local planning authority were to approve siting of the caravan (Condition 5).

Condition 3 suggested the use might be temporary. In fact, the caravan on the site was the subject of a number of substantial extensions between 1998 and 2000, none with planning permission: and the Newland family (including Mr Newland) continued to occupy the enlarged structure.

On 15 January 2005, Mr Newland applied for planning permission for the site, “for the siting of seven mobile homes and seven touring caravans together with ancillary works, and retrospective application for the regarding of the land to provide a level site”. Some caravans were moved onto the site before the determination of the application, which was refused by the Council on 22 September 2005. That same day, the Council served two enforcement notices.

Notice 1 alleged a breach of planning control in that, without planning permission, there had been a change of use of the land from a garden/paddock and stationing of one caravan and timber building as permitted by the 1986 permission, to use for siting additional caravans for habitual accommodation, marquee, summer house and sheds: and the notice required the cessation of this use, and removal of the additional caravans and structure, and removal from the site of the materials etc arising from compliance with these requirements.

Notice 2 alleged a breach of planning control in that, without planning permission, a level area and fencing with a retaining structure had been made on the site, together with the erection of a three-bay garage, a single bay garage, summer house and marquee. The notice required in essence the removal of these structures, and reinstatement of the site.

Mr Newland appealed against the refusal of planning permission and the enforcement notices. These appeals were heard together by the Inspector on behalf of the Secretary of State, and a public inquiry over six days was heard in May and September 2006. That inquiry included an inspection of the site and surrounding area on 13 September.

The Inspector reported on 12 October 2006, when he dismissed all appeals. In doing so, he made and relied upon the following findings of fact.

Mr Newland now challenges that dismissal of his appeals by the Inspector. However, before I deal with the grounds he relies upon, it will be helpful briefly to refer to the relevant statutory background.

Section 57 of the Act sets out the general requirement that planning permission is required for the carrying out of any development of land, subject to certain specified exceptions. “Development” is defined in Section 55(1) as meaning either:

“(i)

the carrying out of building, engineering, mining or other operations in, on, over or under land; or

(ii)

the making of any material change of use of any buildings or other land.”

Section 55(2) sets out certain operations or uses which will not be taken as involving development. These include:

“(d)

The use of any buildings or other land within the curtilage of a dwelling house for any purpose incidental to the enjoyment of the dwelling house as such”.

Section 57 makes further provision as to when planning permission for development will not be required. For example, Section 57(2) provides that planning permission is not required for the resumption of the use of land for which it was normally used following the expiry of temporary planning permission for a different use. Section 57(3) provides that planning permission is not required for the normal use of land which is also the subject of planning permission pursuant to a development order. In both of these cases, Section 57(5) provides:

“In determining for the purposes of sub-sections (2) and (3) what is or was the normal use of land, no account should be taken of any use begun in contravention of this Part or of previous planning control.”

Section 57(4) deals with the resumption of a former lawful use following enforcement action. It provides:

“Where an enforcement notice has been issued in respect of any development of land, planning permission is not required for its use for the purpose for which (in accordance with the provisions of this part of this Act) it could lawfully have been used if that development had not been carried out.”

Although uncontentious, some comments on Section 57(4) may assist in the light of the issues which have been raised in the case before me.

Section 171B of the Act provides time limits after which certain development may become immune from enforcement action and consequently (by virtue of Section 191(2)) lawful. By Section 171B(2), enforcement action cannot be taken against a breach of planning control comprising “the change of use of any building to use as a single dwelling house” after four years beginning with the date of the breach. By Section 171B(3), the default period is otherwise ten years.

With the permission of Burton J, Mr Newland now challenges the Inspector’s decision to dismiss the appeals on two grounds.

I will deal with these grounds (which are also determinative of the planning permission appeal) in turn.

The Inspector found that from 1999 (i) the former caravan was a dwelling house building for planning purposes and, because over four years had elapsed since the breach of planning control, enforcement action could not be taken in respect of that change of the use and consequently that use was lawful (Sections 171B(2) and 191(2)): (ii) the use to which the curtilage to the property (which was not greatly in dispute and which the Inspector defined) was put was lawful by virtue of Section 55(2)(d): and (iii) the use of the rest of the site was also lawful, as an ancillary garden and paddock.

Mr Newland now accepts the first two findings: but he submits that the Inspector erred in respect of the third because:

I am not persuaded by these submissions, for the following reasons (Paragraphs 22-32 below).

At the hearing, Mr Clay briefly flirted with a submission that, when the caravan became a building in 1999, the unit may have stayed as a single planning unit with mixed use. He was right not to press this submission, as the change to mixed use would itself have required planning permission; and that analysis would therefore not have assisted Mr Newland.

Otherwise, Mr Clay’s submissions are dependent upon a split of the site into two planning units (the dwelling house to which Section 171B(2) would apply, and the wider site to which it would not): or more accurately upon a successful challenge to the Inspector’s finding that, after 1999, the site was a single planning unit. In my judgment, such a challenge is unsustainable.

All of the authorities to which I was referred properly stress that the identification of the relevant planning unit is quintessentially a matter of fact and degree for the primary decision maker (see, for example, Johnstone v Secretary of State for the Environment (1974) 28 P&CR 424 at pages 427-8 per Lord Widgery CJ as applied in, e.g., Church Commissioners for England v Secretary of State for the Environment [1995] 2 PLR 99). With respect, I was unimpressed at Mr Clay’s attempt to undermine this principle by reference to Crawley Borough Council v Hickmet Limited [1998] JPL 210 which was a case involving enforcement under Section 187B of the Act (in which an application for an injunction was made direct to court, thereby requiring the court to make findings of fact) and in which the sole issue before the court was whether the use of a site for car parking amounted to commercial storage for planning purposes. On both grounds that case was very different from the case before me. An application under Section 288 (or Section 289) is not an opportunity for a review of the merits of an Inspector’s decision: and an applicant making an allegation that an inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgement, such as is made in this case, faces a “particularly daunting task” (R (Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 74 (Admin) at [7]-[8], per Sullivan J).

An inspector must of course approach the issue correctly. That approach was set out by Bridge J in Burdle v Secretary of State for the Environment [1972] 1 WLR 1207 at pages 1212C-1213B. He said there were three categories of case, as follows:

“First, whenever it is possible to recognise a single main purpose of the occupier’s use of his land to which secondary activities are incidental or ancillary, the whole unit should be considered…

But, secondly, it may equally be apt to consider the entire unit of occupation even though the occupier carries on a variety of activities and it is not possible to say that one is incidental or ancillary to another…

Thirdly, however, it may frequently occur that, within a single unit of occupation, two or more physically separate and distinct areas are occupied for substantially different and unrelated purposes [and] in such a case each area used for a different main purpose (together with its incidental and ancillary activities) ought to be considered as a separate planning unit”.”

Into which category a particular set of circumstances falls, Bridge LJ said:

“Like the question of material change, it must be a question of fact and degree.”

However:

“It may be a useful working rule to assume that the unit of occupation is the appropriate planning unit, unless and until some smaller unit can be recognised as the site of activities which amount tin substance to a separate use both physically and functionally.”

The Inspector in this case clearly had Burdle well in mind: he set out (at Paragraph 37) the passage from Bridge J’s judgment quoted above. He noted (at Paragraph 38) that there was no evidence that the building was used in isolation from the land around it, and he found (at Paragraph 39) that a single planning unit was consistent with the use of the site after 1999. He specifically dealt with the issue of whether the presence of other caravans gave rise to a lawful use of the site as a caravan site arising from the presence of other residentially occupied caravans which, after reviewing the evidence, he rejected (Paragraphs 32-35).

On the face of the report, it seems to me that the Inspector not only had the proper approach in mind but he also applied it properly.

In addition to the points referred to above, Mr Clay raised three further points with a view to persuading me otherwise.

First, he submitted that the Inspector’s decision was not consistent with the absence of change of use of the wider site after 1999. Indeed, as I have indicated, he went further and submitted that the Inspector’s decision was perverse given no such change. However, this does not do justice to the Inspector’s report. Prior to 1999, the site comprised a caravan site with one caravan. As noted by the Inspector (at Paragraph 19), a “caravan site” is defined by Section 336 of the Act and Section 1(4) of the Caravan Sites Act 1960 as “land on which a caravan is stationed for the purposes of human habitation and land which is used in conjunction with land on which a caravan is so stationed” (emphasis added). On the basis of the Inspector’s findings of fact, until 1999 the land within the wider site was simply used in conjunction with or ancillary to the use of the particular land on which the sole caravan on the site was stationed. He found that, after the caravan had become a dwelling house, the wider site was a garden and paddock ancillary to that dwelling house. Therein lay an element of continuity. In each case, the wider site had no separate use physically or functionally, but rather only a use for secondary activities incidental to the main purpose which took place primarily on a small part of the site (namely where the caravan and later the dwelling house stood). Those were findings of fact which were clearly open to the Inspector to make.

Second, Mr Clay relied upon Section 336 of the Act which (he submitted) restricted the definition of “building” to exclude land upon which there is no structure, such as the wider site. Strictly, “building” is not exhaustively defined in Section 336. The relevant provision merely states that “building includes any structure or erection…” (emphasis added). But more importantly, whilst positive authority on the proposition is thin, I accept Mr Strachan’s submission that there is a distinction between a curtilage and a planning unit, and that the latter may be more extensive than the former. That seems to me to be consistent with the principles set out in Burdle: and is the view of the learned authors of The Encyclopaedia of Planning Law and Practice (Section 3B-2055). The relevant passage from that book was noted, and at least the distinction was described as “useful” by Maurice Kay J (as he then was) in Crockett v Secretary of State for Local Government and the Regions [2002] EWHC 2272 (Admin) at [13]. I was not referred to any authority to the contrary. In any event, for land ancillary to a dwelling house not to have the same four year time limit as the building itself would lead to very odd, if not impracticable, results: because it would be open to a planning authority to enforce against (e.g.) a garden ancillary to a dwelling house for six years after the dwelling house as a structure would be immune from enforcement procedure. Given the nature of land that is ancillary to a dwelling house, and the principles set out in Burdle, that cannot be the intention of the statutory provisions. I accept the submission of Mr Strachan that the change of use of land ancillary to a dwelling house can properly be considered as a part of the change of use affecting the dwelling house itself: and the Inspector correctly observed that, once the use of a building as a dwelling house becomes lawful under Section 171B(2) so does the use of land within the same planning unit.

Third, Mr Clay said that it was common for parcels of land to be “hived off” from a larger parcel for a different purpose, and for any planning permission for the balance to remain intact. That is true. But, as he himself submitted, it is a question of fact in each case as to whether planning permission does persist, given the part hived off and the part that remains. In this case, the Inspector found as a fact that after 1999 the site was a single planning unit for use as a dwelling house with ancillary garden and paddock.

Reading the Inspector’s decision as a whole, I am quite satisfied that his approach to the issue of planning units was correct as a matter of law, and that he was more than entitled to reach the conclusion he did reach on the evidence, namely that after 1999 and until the influx of caravans which prompted Notice 1, the site comprised a single planning unit with use as a dwelling house with ancillary garden and paddock.

For the reasons given by Mr Strachan in his submissions, that effectively disposes of this ground. Once that finding is accepted, Section 57(4) cannot avail Mr Newland. Even if the wider site is regarded as not being immune from action for ten years, the Inspector’s finding was that the wider site was after 1999 ancillary to the dwelling house (a finding of fact which Mr Newland cannot undermine) and no enforcement action has been taken against its use as ancillary to a dwelling house before its use changed to stationing of caravans. In those circumstances, for the reasons set out above (Paragraph 15), Section 57(4) does not operate to permit resumption of use as a caravan site. It only permits the resumption of the last use of the land immediately prior to the use against which enforcement steps are being taken, provided that such use was lawful. If the wider site should be treated as a separate planning unit (as Mr Newland submits), then its previous use as a garden would not have been lawful - and Mr Newland could not revert to that under Section 57(4). Nor of course could he use Section 57(4) to leapfrog back to use as a caravan site. The use as a garden had supplanted the use as a caravan site under the 1986 planning permission. That permission was spent.

Finally, Mr Clay raised a further point with which I should deal, namely that the Inspector’s decision had an extreme adverse effect on Mr Newland and his family because it deprived them of the right to use the land for stationing caravans. The Newland family were described as a gypsy family in the 1986 planning permission; and the Council accepted Mr Newland’s status as a gypsy for the purposes of the inquiry before the Inspector, i.e. they accepted that he was a person with a nomadic habit of life. The Inspector was particularly sensitive to the status of both Mr Newland and his family members (see Paragraphs 82 and following). Mr Clay stressed the importance to Mr Newland of living on a caravan site, which reflected his way of life and that of his family: and Mr Newland’s unhappiness at the result of the inquiry which was to deprive him of any right to have caravans for human habitation on the site. Of course, one can only sympathise with Mr Newland. However, first, the change of use resulted from his own adaptations to his caravan, which deprived it of transportability (a vital definitional criteria for a caravan). Second, the result of the Inspector’s findings was not simply to deprive Mr Newland of the right to use the land as a caravan site: his finding (now unchallenged) that Mr Newland’s home had become a dwelling house building conferred an entirely different batch of planning rights. As well as losing any right to have a caravan or caravans upon the site, rights were also gained (such as permitted development rights). Third, sympathetic as one might be, to the extent that the relevant statutory provisions operated harshly in Mr Newland’s case (because he ended up “losing” his right to station any caravan on the site), those provisions are unambiguous and “in the application of a detailed statutory code… a measure of hardship may in some cases be unavoidable” (Young v Secretary of State for the Environment [1983] 2 AC 662 at pages 670G-672C per Lord Fraser of Tullybelton).

Therefore, this ground founders on the factual finding of the Inspector that, after 1999, the site was being used as a single dwelling house with ancillary garden and paddock. That was a factual finding that the Inspector was properly entitled to make on the evidence before him and, for the reasons I have given, it is effectively fatal to the first ground relied upon by Mr Newland.

Notice 2 was particularly concerned with operational development, and notably sought to remove the 3-bay and single garages. The notice was appealed under ground (a) of Section 174 - which required consideration of whether the particular deemed proposal for planning permission is consistent with the development plan and any other material considerations. The nub of Mr Newland’s complaint is set out in Paragraphs 34-35 of Mr Clay’s Skeleton Argument:

“34.

The Inspector does not seem to have directly considered the impact of the two garage buildings either individually or together on the character of the landscape, nor taken (in the light of his finding that the site has lawful uses as a dwelling house and ancillary land) of the permitted development rights which thereby accrue to buildings on land which has permission as land ancillary to a dwelling house.

35.

His assessment simply fails to carry out any assessment of the development which is the subject of the deemed application under ground (a).”

In his oral submissions, Mr Clay made clear that the thrust of Mr Newland’s complaint was that the Inspector failed to consider the impact of the development the subject of Notice 2 as a separate matter: he really only considered the Notice 1 development and that sought in the application for planning permission. In relation to the Notice 2 development, insofar as it was considered at all it was simply “rolled up” with those other developments he was considering. Its effect was never considered as a discrete issue.

In approaching this issue, I bear in mind that the Inspector’s decision letter of 12 October 2006 was not drafted by Parliamentary Counsel, nor is it to be construed as if it was (Seddon Properties v Secretary of State for the Environment (1981) 42 P&CR 26 at page 28). Such reports are to be considered on a “straightforward down-to-earth reading… without excessive legalism or exegetical sophistication” (Clarke Homes Ltd v Secretary of State for the Environment (1993) 66 P&CR 253 at page 272-3, per Sir Thomas Bingham MR: see also South Bucks District Council v Porter (No 2) [2004] UKHL 33 at [36] per Lord Brown to similar effect). It is also noteworthy that “the mere absence of mention of a factor in the text of a decision does not necessarily mean that it was not considered” (R (Tesco Stores Limited) v The Family Health Services Appeal Authority [1999] EWHC 714 (Admin), [1999] Lloyd’s LR Med 377 at page 381 col 1): and that weight given to various factors is exclusively a matter for the inspector (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at page 780f-h). All of these propositions are uncontentious.

Mr Strachan made a full and helpful critique of Mr Newland’s complaint in Paragraphs 63-74 of his Skeleton Argument. If it were necessary, I would be pleased to adopt that: but it is unnecessary for me to descend to that level of detail, because I agree with Mr Stachan’s overriding submission that this second ground is simply unsustainable in the light of any fair reading of the Inspector’s decision letter as a whole. This appeal was dealt with quite cursorily by Mr Newland before the Inspector (see, e.g., Paragraphs 80-82 of the Closing Submissions on his behalf: only three paragraphs were dedicated to these issues out of 85 - and one of those simply stated that, if the principal issue relating to Notice 1 succeeded, then there could be no real basis for seeking removal of the structure the subject of Notice 2). Nevertheless, in his letter the Inspector gave a clear and careful assessment of the development, and it cannot be suggested that he did not consider the effects of the development in planning terms. He went through the relevant policy framework and effects of the development as he saw them, and records in terms that he found the development referred to in Notice 1 and Notice 2 each to be harmful. There can be no real doubt that the Inspector found substantial harm arising from the development in issue under Notice 2, as well as that in Notice 1, and as well as that identified in the application for planning permission. That is clear not only from paragraph 127 of his decision letter, but throughout the letter (e.g. in Paragraph 97 where he refers to “the development, and each appeal, into conflict with the Local Plan policies”; and the heading before Paragraph 127 which refers to the ground (a) appeals and the section 78 appeal”. His conclusions were clearly, firmly and adequately set out in Paragraph 127 of his letter.

Insofar as complaint is made that the Inspector did not tease out the various components in the development that was the subject of Notice 2 (particularly the discrete garages), there is nothing to suggest that he did not have well in mind his duty to consider each aspect of a development as well as the Notice 2 development as a whole. The adequacy of reasons must always be assessed in the light of what were the main issues in dispute: and from the papers there appears to have been no suggestion from any party that elements of the Notice 2 development ought to considered discretely.

Consequently, I do not find that Mr Newland has made good his second ground. Indeed, despite Mr Clay’s best efforts, I consider he has fallen very far short of doing so.

For these reasons, I am firmly of the view that the Inspector did not err in any way in which I can interfere on these applications. Mr Newland has made out neither ground, and I shall formally dismiss both of his applications and his appeal (which it was common ground stood or fell on the basis of the issues raised in relation to the applications).

I shall hear submissions in relation to costs, unless the appropriate costs order can be agreed by the time this judgment is formally handed down.