Eagles & Anor v Minister for the Environment Sustainability and Housing, Welsh Assembly Government & Anor

This an application under section 288 of the Town and Country Planning Act 1990 (“the Act”) to quash a decision of the Welsh Minister, the first defendant, given on his behalf by an Inspector in a decision letter, dated 2 December 2008 (the "Decision Letter"). The claimants, Mr & Mrs Eagles, challenge the decision to dismiss their appeal against the refusal by the Second Defendant ("the Council") on 15 April 2008 of their application for planning permission to convert a redundant barn on a site known as Glansirhowy Farm, Llanfrechfa to ancillary use for the farmhouse, a grade II listed building. The site no longer functions as a working farm and is the claimants’ main residence. It consists of the farmhouse, outbuildings, and the barn which is the subject of these proceedings.

The Inspector dismissed the appeal on two grounds. First, he concluded that the proposed conversion to the barn was extensive and would result in separate accommodation which was not ancillary to the existing farmhouse. Secondly, he concluded that the conversion would fail to preserve the character and setting of the listed farmhouse. Mr Walters, on behalf of the Claimants, submitted that the Inspector erred in law on these two issues.

The decision letter also considered a third issue, highway safety. It stated that, “assuming that it would be restricted to ancillary purposes for the existing house” the new residential accommodation would “be a light generator of traffic”, and there was no reason to turn down the development on highway safety grounds.

The powers of this court when considering a challenge pursuant to section 288 are well known. They were conveniently summarised in R (on the application of Newsmith Stainless Steel Ltd) v Secretary of State for Environment, Transport and the Regions [2001] EWHC 74 (Admin). Sullivan J, as he then was, stated:-

The Claimants’ applications for permission for development and for listed building consent were submitted to the Second Defendant on 29 August 2007. The Second Defendant refused both applications. The application for listed building consent was refused on 31 March 2008 and that for permission to develop on 15 April 2008. No appeal has been made against the refusal of listed building consent but on 1 August 2008 the Claimants appealed pursuant to section 78 of the 1990 Act against the decision to refuse permission to develop. The appeal was dealt with by the written representations procedure. A site visit was made on 28 November 2008.

Two previous applications to change the use of the barn into a single dwelling, made in 1990, were refused on highways grounds. The access lane to the site was considered to be unsuitable to serve as a main access to an additional dwelling. In 2006 listed building consent was granted to replace the window frames in the farmhouse. An application to infill two existing openings in the barn was refused on the ground that the alterations would have affected its character and design.

The development proposed in the present application was “conversion of [existing] redundant barn to ancillary use to [existing] dwelling”. The report to the Second Defendant’s committee states that the barn is a large one, attached to the farmhouse via a single storey out-building/annexes. The report states that “therefore in addition to the barn being protected by being within the curtilage of a listed building it is considered that the barn forms part of the listed building due to its attachment to the farmhouse”. The nature of the proposed development is usefully summarised in paragraph 4 of the decision letter. This states:

The development would not be linked physically to the farmhouse so that it would be necessary to go outdoors when moving between it and the farmhouse. The decision letter states that the entrance and hall of the proposed development “would be orientated towards the access drive on the north side, rather than towards the existing dwelling or courtyard”.

In paragraph 2 of the decision letter the Inspector states that:

The Claimants submit that the formulation of issue (a) is incorrect in focussing on scale in ascertaining ancillary status. Mr Walters submitted that the proper question was “whether the grant of permission would permit the use of the barn as a separate dwelling and whether that could be dealt with by condition”, and “whether the development involved a material change of use” whether or not it was for a separate dwelling house. There is no suggestion that the Inspector failed correctly to identify the planning policies relevant to this application.

Issue (b) is not before me and I shall refer to issue (a) as “issue 1”, and issue (c) as “issue 2”. I have referred to the Inspector’s description of the nature of the proposed development in paragraph 4 of his decision letter. After setting out the accommodation proposed, he stated:

The section on the proposed development also states:

Although the Inspector concluded that there was no reason to turn down the proposed development on highway safety grounds, since what is said about highway safety is relied on by Mr Walters as showing an inconsistency in the Inspector’s findings, it is necessary to set out paragraph 8 of the decision letter:-

The impact of the development on the listed building is considered in paragraphs 9 to 13 of the decision letter. These paragraphs state:

The Inspector concluded:

At the heart of the Claimants’ case on this issue is the submission that the Inspector erred as to the correct legal test of ancillary use when concluding that the proposed development was not for an ancillary use but was for a separate dwelling. One strand of this is Mr Walters’ submission that the Inspector’s formulation of issue (a) in the decision letter is incorrect: see [10]. Before considering that and the Defendants’ response to it, I deal with the argument that the Inspector’s decision letter also erred in law because it was internally inconsistent.

Mr Walters submitted that there is an inconsistency in the findings of the Inspector. In paragraph 7 of the decision letter the Inspector states that “what is proposed cannot be regarded as ancillary to the existing dwelling”. Mr Walters’ skeleton argument (paragraph 14) states that paragraph 8 of the decision letter “correctly concludes that the development would not provide a new dwelling”. Mr Walters submitted that this and the statement in paragraph 5 that, while the Inspector accepted the Claimants’ statement that they had no intention to create a new dwelling in the converted barn as a separate residential unit from the farmhouse, he had “no doubt that there would be pressure for it to become a separate unit in the future”. Mr Walters submitted that the Inspector accepted that the barn and proposed development was not a separate unit for the purpose of the application but wrongly considered what might happen in the future and, in doing so, erred. The error is that the requirement is to consider the application as it is and not what it might become, particularly where what it might become requires planning permission.

Mr Walters’ submissions depend in part on a misreading of paragraph 8. As is seen from the paragraph set out above ([13]), the reference to restriction to ancillary purposes is made in the last sentence of the paragraph on highway safety. The Inspector had concluded that in the past the farm must have generated a considerable amount of traffic, some of it by heavy vehicles. He then considered the impact of the development, “assuming that it would be restricted to ancillary purposes for the existing house”. There is no finding that what is proposed by the Claimants would be restricted to ancillary purposes. Particularly in view of the planning history of this site and the two applications in 1990 to change the use of the barn into a single and additional dwelling, the Inspector’s approach is understandable. It is also favourable to the Claimants because, a fortiori, there would be likely to be more traffic from two separate dwellings.

I turn to the alleged inconsistency between paragraph 7 and the last sentence of paragraph 5. The context of the appeal and the planning background to the site are relevant. The context was the offer to restrict the occupancy of the converted barn by a condition such as model condition 47. The background included the two applications to change the use of the barn into a single dwelling.

It is clear from paragraphs 4-7 that the Inspector considered that the proposal was one for a “self-contained dwelling house” and not for a use which was ancillary to the existing dwelling. The decision letter is not internally inconsistent.

I return to whether the Inspector erred in his conclusion that the development was not for an ancillary use to the farmhouse. The question whether a building is used as a single dwelling or whether its use is ancillary to the use of another building is a question of fact and degree for the fact finding body, here the Inspector. In Moore v Secretary of State for the Environment, Transport and the Regions (1999) 77 P & C R 114, Nourse LJ, with whom Pill and Thorpe LJJ agreed, stated (at 118) that if the Secretary of State applies the correct test, the court in an appeal under section 289 of the Act “can only interfere if the facts found are incapable of supporting it. If, on the other hand, he applies the wrong test, then the court can interfere and itself apply the correct test to the facts”. On “ancillary use” albeit in a different context, see also Harrods v Secretary of State for the Environment and the Regions and Kensington and Chelsea RBC [2002] EWCA Civ 412 at [10] and [22] approving Sullivan J [2002] JPL 437.

Mr Walters’ starting point was that the Inspector formulated this issue incorrectly because he was required to take the application as it was. The description of the permission obtained would be controlled by the terms of the application. This application was for “ancillary use to [existing] dwelling”. While conceding that, if granted, the wording of the grant of permission could have permitted a separate dwelling house, Mr Walters submitted that it did not only permit this. He argued that the wording of the grant of permission would permit either separate use or ancillary use, and that it could be restricted to the latter by the use of a condition to define its scope; here model condition 47.

In the case of an application to convert an existing building and one which was large, Mr Walters submitted it was wrong to conclude [solely] because of size and physical layout that the application was for a separate dwelling. Here the building was also listed. Section 66(1) of the Planning (Listed Building and Conservation Areas) Act 1990 required the Inspector to have “special regard to this in deciding whether to grant planning permission. Mr Walters submitted the Inspector did not take the listed building status of the building into account at this stage of the inquiry. The applicant was stuck with a building of a given size and with a particular configuration. He submitted that the Inspector’s consideration of “the scale of the proposal” (para 5), and that the works would “create a large new dwelling” (para 7) erred, as did his failure to take into account that it was listed. He argued that neither size nor design precluded the use from being ancillary to the farmhouse: “it is relevant to consider functional relationship and not merely the scale or geographical extent of any use”: (Phillips v Secretary of State In Communities and Local Government and South Oxfordshire District Council [2008] EWHC 3117 (Admin) at [24] (David Holgate QC). Mr Walters submitted that the Inspector erred in not considering the functional relationship of the development to the farmhouse.

I have concluded that the Inspector did not fall into error. He was entitled to consider the scale and size of the development. In Phillips’ case the Deputy Judge said (at [24]) it was not enough “merely” to consider the scale of the use. Here, the aspects of the physical layout referred to in the decision, that what was proposed would not be linked to the farmhouse, and the place the claimants had chosen to place the entrance and hall of the converted barn, were of particular relevance. As to the latter, the Claimants chose to place the entrance on the north side towards the northern access drive rather than towards the farmhouse or the courtyard on the south side.

In any event the Inspector did not only take account of scale, size and physical layout. He took into account (para 4) the extensive provision for living accommodation including a lounge, dining room, kitchen, three bedrooms and two bathrooms. He took account of the fact that the accommodation was “in the form of a self-contained dwelling house and would not be linked physically to the farmhouse. These factors are relevant in determining what McCullough J in Gravesham BC v Secretary of State for the Environment (1984) 47 P & C R 142 described as the distinctive characteristic of a dwelling house.

The characteristic referred to by McCullough J is a functional one. It is, “the ability to afford to those who use it in the facilities required for day-to-day private existence”. In Moore’s case, McCullough J’s approach was said to be “entirely correct”. The use of the word “ability” by McCullough J is significant. It is not actual use or intended use which is said to be the distinctive characteristic, but the “ability” to afford the facilities required for private independent existence. McCullough J had rejected the notion that a building with this characteristic was not a dwelling house because it was only occupied at irregular or infrequent intervals. This shows the importance of the physical nature and attributes of the building as well as the actual or intended use. Similarly, in Moore’s case Nourse LJ stated (at 119) that ten self-contained units of accommodation, which would otherwise be properly described as ten single dwelling houses, did not “cease to be used as such because they were managed as a whole for the commercial purpose of holiday lettings”. Again, the emphasis is on the physical nature and attributes of the buildings. Moreover, the Encyclopaedia (P55.40) gives as an example of functional severance from primary use, a caravan parked in the curtilage of a dwelling where it is capable of fully independent use. The physical nature and attributes are, as I have said, functional characteristics in the sense that they go to a functional ability to afford the facilities required for private domestic existence.

The Inspector was entitled to conclude that, with such facilities on this scale and the consequent “form” of a self-contained dwelling house, what was proposed could not be regarded as a secondary or ancillary use to the farmhouse. The facts found are capable of supporting his conclusion.

The conclusion itself is not arguably flawed as Wednesbury unreasonable. Nor did the Inspector fail to provide sufficient reasons in the decision letter. The reasons enabled the claimants to understand why the matter was decided as it was and the conclusions on the main issues within the test set out by Lord Brown in South Bucks DC v Porter (No 2) [2004] 1 WLR 1953. The reference in paragraph 5 to pressure for the building to become a separate building “in the future” is unfortunate. But it is sufficiently clear from paragraph 7 that the Inspector considered that the proposed building cannot be regarded as ancillary to the existing farmhouse, and from paragraphs 4 and 5 that this was because of its size, scale and the facilities which resulted it in having the form of a self-contained dwelling house.

It is common ground that the barn was within the curtilage of the farmhouse and paragraph 4 of the decision letter indicates the Inspector agreed. By section 55(2)(d) of the Act, the use of a building within the curtilage of a dwelling house for any purpose incidental to the enjoyment of the dwelling house does not require planning permission.

It was submitted on behalf of the Claimants (skeleton argument paragraph 26) that the Inspector erred in considering that the issue is whether the use was “incidental” to the enjoyment of the farmhouse because use as an integral part of the ordinary living accommodation is not incidental use, it is the same use. It was submitted that the error of law lay in concluding that the provision of a range of ordinary living accommodation was a sufficient condition for there to be a separate dwelling. The position is that while it is a necessary condition it is not a sufficient condition. The Inspector concluded the building would be a separate dwelling.

For the reasons I have given, in the light of the test in Gravesham’s case, approved by the Court of Appeal in Moore’s case, in my judgment the Inspector was entitled to reach this conclusion. He did not conclude that the provision of a range of ordinary living accommodation was sufficient for there to be a separate dwelling. He considered the size, scale, physical layout and the ability to afford the facilities required for private independent existence.

Mr Walters did not press the submission that the Inspector had not considered imposing a condition. He was right in not doing so. First, the failure of the Inspector to consider a condition suggested by a party is not automatically an irregularity to justify interference with a decision made: Brightwell v Secretary of State for the Environment (1997) 73 P & C R 418; R (Ayres) v Secretary of State for the Environment Transport and the Regions [2002] EWHC 295 (Admin). More importantly, however, in this case the Inspector referred to the Claimants’ agreement to the control of the occupancy of the barn by a condition in paragraph 6. In paragraph 14 he states took into account the possible use of conditions but concluded they would not overcome the main objections to the development.

I turn to the submission that the Inspector erred in not imposing a condition. Mr Walters submitted that he erred in paragraph 6 by linking the question of condition to the absence of a justification or need for the development. The test is whether the use would enable the development to proceed by dealing with the objections to it. In this case it would by defining the scope of the permission. Mr Walters argued that, if a development is permitted, need is not relevant. So, if an application is made to convert a building within the curtilage of a dwelling house to stables to be used as ancillary to the house, it does not matter that the occupants of the house do not have horses. A condition restricting the occupation of the building to purposes ancillary to the residential use of the farmhouse (as model condition 47 does) and defining the scope of the permission could not be repugnant to the permission. This submission is linked to that maintaining the Inspector erred in his approach to ancillary use, which I have rejected.

Taking Mr Walters’ example of converting a building within the curtilage to stables, his submission has force where the stables are the sort of stables that are, applying the language used in Harrods Ltd v Secretary of State by analogy, ‘ordinarily’, or ‘normally’ to be found in a dwelling house of that sort. But here the Inspector concluded that the development would result in residential accommodation “out of scale with the existing dwelling”. Taking account of this and the other factors referred to by the Inspector, see [24]-[28], he concluded that the building could not in any sense be considered ancillary to the farmhouse. This was the main objection to it. There were no personal circumstances offered to weigh against this fundamental planning objection, and which might have outweighed it or led to a different conclusion on the mixed question of fact and law as to the nature of the development. That might have been the position, for instance, if the claimants had made it known they had caring responsibilities to their aged parents, or had adopted a number of orphaned teenage children.

In these circumstances the Inspector did not fall into error in concluding that a condition would not overcome the fundamental planning objection.

Mr Walters submitted that the Inspector made two errors. The first was in relation to his consideration of the demolished brick lean-to extension to the barn. The second was in failing to consider that the detail lacking in the application for development permission could be provided in a subsequent application for listed building consent. I deal with each in turn.

The Inspector referred to the fact that the brick lean-to structure was a “later” structure (paragraph 9), that it had been demolished (paragraph 10), and that the proposal was to rebuild it with the reclaimed bricks to form a two storey extension to the barn (paragraph 10). He considered the historical character of the barn in paragraphs 11 and 13.

In paragraph 13 he referred to the cumulative erosion of “the historic character of the barn” and the fact that it is in close proximity to the 16^th century farmhouse.

In paragraph 11 he stated that, with full height soft wood glazed doors and windows, the extension would “undoubtedly have a more modern appearance than the stone build barn” and that it was not clear from his site visit or from the drawings that the doors and windows in the extension would be in the position and the openings to the extension had been before its demolition: paragraph 11 is set out at [14] above.

His overall conclusion was that “this aspect of the conversion would look out of place and therefore fail to preserve the character and setting of the listed building. That shows he had “special regard” to this matter in deciding whether to grant planning permission as he was required to do by section 66(1) of the Planning (Listed Building and Conservation Areas) Act 1990. His reasons are clear and I accept Mr Lewis’ submission on behalf of the First Defendant that there is no merit in this ground.

The second ground relates to what the Inspector said about the lack of detail in the application about the proposed works. He was required to have “special regard” to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses and he considered that many of the detailed matters affected these features. He was entitled to take into account the lack of detail about the ventilation slit, the external rainwater goods, the handrails to external stairs and internal cross sections. It is seen from paragraph 12 of the decision that he considered whether the omission of any of these details could be safeguarded by a condition and concluded that the omission of the ventilation slit could be.

Paragraph 13 of the decision addresses the way the lack of detail impacts on the matters the Inspector was required to have “special regard” to pursuant to section 66(1) and how these features cumulatively eroded the historic character of the barn. His conclusion was that these features in themselves were, irrespective of detail, “design matters” that “are not acceptable for a listed building in close proximity to the 16^th century farmhouse”. In so concluding he did not fall into error.

For these reasons this application must be dismissed.