Sevenoaks District Council v Secretary Of State For Environment & Anor [1997] EWHC 1012 (Admin)

IN THE HIGH COURT OF JUSTICE CO 1322-97
QUEEN'S BENCH DIVISION
[1997] EWHC 1012 (Admin)Venue ( CROWN OFFICE LIST ), Royal Courts of Justice, Strand, London WC2
Between
Sevenoaks District CouncilSecretary Of State For Environment & Anor
Date 13 November 1997
[1]THE DEPUTY JUDGE: This is an application under section 288 of the Town and Country Planning Act 1990 to quash the decision of one of the Secretary of State's Inspectors. It appears from the Inspector's decision letter written in pursuance of a written representations appeal under section 78 of the 1990 Act, that he had as normal received representations from both the Appellant, now the Second Respondent, and the Local Planning Authority and also from a Third Party, and decided the case appropriately. In fact, he had not received the written representations which the Local Planning Authority had originally intended to submit.[2]The application was for a 4-bay oak framed car shelter extension to an existing garage at a large dwellinghouse at Penshurst in Kent. It was refused by the Applicant Council and the Second Respondent appealed to the Secretary of State by the written representations method. The Inspector appointed to determine the appeal allowed it.[3]In his decision letter he said, in the second sentence of paragraph one:
""3. Having regard to the representations made, and from my inspection of the site and its surroundings, I consider that the main issues on which a decision turns are: firstly, whether or not the appeal proposal constitutes inappropriate development in the Metropolitan Green Belt, and if so, whether there are very special circumstances to justify the grant of planning permission; and secondly, whether or not it would result in development that would impinge on the local landscape. 4. In view of the Green Belt location of the appeal site, as a starting point for the first issue I refer to PPG 2. This advises, inter alia, that the construction of a new building inside a Green Belt is inappropriate unless its purpose is to provide limited extension to an existing dwelling. Paragraph 3.6 of that document qualifies this advice in terms of the size of the extension of alteration in relation to the original building. 5. The appeal proposal is not for an extension to 'The Nunnery', but for detached covered car parking. However, in my opinion this is a normal domestic adjunct to which the same policy provisions can logically be applied. I recognise that 'The Nunnery' currently possesses a barn/garage which could accommodate motor vehicles, but as you explain in your grounds of appeal, and as I observed at my site inspection, this accommodation is used to house garden machinery. I do not consider this to be unreasonable for the maintenance of a property which extends to 2.4 ha. 6. 'The Nunnery' is a substantial 2-storey house with attic accommodation and a range of attached outbuildings. It is based on a late mediaeval building that has been extended. No planning history of the house is provided, but from cursory inspection I conclude that the greater part of the complex predates planning legislation. In the circumstances it is reasonable to assume that the building possesses its original form for the purpose of applying the afore-mentioned Green Belt policies. The proposed structure is substantial, being in excess of 12 m in length and over 5 m in width. However, in my opinion, its mass is not disproportionate to that of the original building. This leads me to the view that the appeal proposal does not constitute inappropriate development, but accords with the policies contained both in PPG 2 and the approved structure plan. Having arrived at this conclusion, I find no need to explore the matter of whether very special circumstances exist in this case. 12. I have taken into account all the other matters raised in the written representations, but I do not find them of such importance as to outweigh the considerations that have led to my decision, which is to allow your client's appeal."
[4]In fact, as I have said, he had not received the written representations which the Applicant Council had hoped albeit belatedly to send.[5]The Planning Inspectorate had sent to the Applicant Council a letter dated 3rd January 1997, more than two months before the decision letter, saying: "" Within the next 28 days - send the appellant and me, any further statement you wish to make, if the questionnaire and supporting documents do not comprise your case...[6]You should keep to the timetable set out on the previous page. Inspectors will not accept representations at the site visit, nor will they wait for representations. Having drawn your attention to the timetable, I will not send reminders to you or the appellant."[7]No further statement was forthcoming; so it was understandably assumed that the documents thus far received constituted the Applicant Council's case and the Inspector proceeded to determine the appeal.[8]The remainder of the decision letter proceeded as follows:
""3. Having regard to the representations made, and from my inspection of the site and its surroundings, I consider that the main issues on which a decision turns are: firstly, whether or not the appeal proposal constitutes inappropriate development in the Metropolitan Green Belt, and if so, whether there are very special circumstances to justify the grant of planning permission; and secondly, whether or not it would result in development that would impinge on the local landscape. 4. In view of the Green Belt location of the appeal site, as a starting point for the first issue I refer to PPG 2. This advises, inter alia, that the construction of a new building inside a Green Belt is inappropriate unless its purpose is to provide limited extension to an existing dwelling. Paragraph 3.6 of that document qualifies this advice in terms of the size of the extension of alteration in relation to the original building. 5. The appeal proposal is not for an extension to 'The Nunnery', but for detached covered car parking. However, in my opinion this is a normal domestic adjunct to which the same policy provisions can logically be applied. I recognise that 'The Nunnery' currently possesses a barn/garage which could accommodate motor vehicles, but as you explain in your grounds of appeal, and as I observed at my site inspection, this accommodation is used to house garden machinery. I do not consider this to be unreasonable for the maintenance of a property which extends to 2.4 ha. 6. 'The Nunnery' is a substantial 2-storey house with attic accommodation and a range of attached outbuildings. It is based on a late mediaeval building that has been extended. No planning history of the house is provided, but from cursory inspection I conclude that the greater part of the complex predates planning legislation. In the circumstances it is reasonable to assume that the building possesses its original form for the purpose of applying the afore-mentioned Green Belt policies. The proposed structure is substantial, being in excess of 12 m in length and over 5 m in width. However, in my opinion, its mass is not disproportionate to that of the original building. This leads me to the view that the appeal proposal does not constitute inappropriate development, but accords with the policies contained both in PPG 2 and the approved structure plan. Having arrived at this conclusion, I find no need to explore the matter of whether very special circumstances exist in this case. 12. I have taken into account all the other matters raised in the written representations, but I do not find them of such importance as to outweigh the considerations that have led to my decision, which is to allow your client's appeal."
[9]I do not propose to deal with the matters dealt with in paragraphs 8 to 11.[10]In these circumstances, the Applicant Council applies to this Court to quash the decision. Mr Petchey who appears on their behalf takes two points: first, he complains that the Inspector should not have referred in paragraph 1 of the decision letter to "written representations" by the Council and, secondly, he submits that, in any event, the Inspector has misinterpreted PPG 2.[11]Upon the first point, I shall now set out the facts in rather greater detail. As I have said, no further statement was received from the Council pursuant to the letter of 3rd January 1997, save that, on 13th January, the Council sent the Planning Inspectorate the questionnaire and supporting documents which included the Reasons for Refusal.[12]Question 18 reads a follows: ""Do the documents listed above comprise the Council's full statement of case? [Answer] No to follow."[13]There was a site inspection on 3rd March 1997 at which the Council's Planning Officer said: ""To the Inspector that the council had not produced an appeal statement to date but would try to produce one in the following week."[14]The Council did not produce a further statement during that week, and on the eighth day, namely 11th March, the Inspector issued the decision letter. Also on 11th March, the house owner's agents wrote to the Planning Inspectorate referring to what the planning officer had said on site about their statement and saying they still had not received one. So the fact is, that as at 11th March, the Council, the owners's agents and the Inspector all knew that there was no further statement. They also all knew that considerably more than 28 days had elapsed since the letter of 3rd January and more that one week had elapsed since the planning officer had said he would try to produce a statement within the week.[15]I shall now set out the most relevant regulations contained in the Town and Country Planning (Appeals) (Written Representations Procedure) Regulation 1987. Regulation 2: ""'Appeals questionnaire' means a document in the form supplied by the Secretary of State to the local planning authorities for the purpose of proceedings under these regulations."[16]I now read regulation 7(1): ""The notice of appeal and the documents accompanying it shall comprise the appellant's representations in relation to the appeal. (2) The local planning authority may elect to treat the appeals questionnaire and the documents submitted with it as their representations in relation to the appeal; and, where they do so, they shall notify the Secretary of State and the appellant accordingly when submitting the questionnaire or sending the copy in accordance with regulation 6. (3) Where the local planning authority do not elect as described in paragraph (2), they may submit representations to the Secretary of State not later than 28 days after the starting date. (7) In this regulation references to representations include a reference to supporting documents."[17]In regulation 9(1): ""The Secretary of State may proceed to a decision on an appeal taking into account only such written representations and supporting documents as have been submitted within the relevant time limits."[18]It is perfectly manifest to me that when the Inspector referred to "written representations" in paragraph 1, he was referring to all the representations which he had received from the Appellant, the Council and the interested person and likewise in paragraphs 3 and 12. As I have already said, all the relevant parties knew that the Council had not produced a further statement pursuant to regulation 7(3) and the letter of 3rd January 1997. There is no room for thinking that he was referring also to a further statement which all the parties knew did not exist. Moreover, the supporting documents, which the Council had submitted and which included the reasons for refusal, constituted representations by virtue of regulation 7(7); so the Inspector was certainly justified in referring to "written representations" by the Council. There is no proper basis for me to hold that he was muddled.[19]Furthermore, by virtue of Regulation 9(1) and the fact that these various representations had been submitted, the Inspector was entitled to proceed to determination of the appeal on 11th March (or earlier if he had wished to do so), notwithstanding that no further statement had been submitted by the Council within the relevant time limits or indeed at all.[20]Still further, it is clear that the Council have suffered no prejudice by virtue of the issue of the decision, properly according to the regulations, on 11th March. Mr Petchey, who appears on behalf of the Council, put forward two aspects of prejudice. However, first, the Inspector did in fact wait one week as the Council had hoped and, secondly, there is no evidence that further representations by the Council would have made any difference, because the Council has never, at any stage said, by representations or otherwise, that they would, if the Inspector had waited longer still, have said "such and such" which would have been likely to have altered the Inspector's opinion.[21]That disposes of this part of the case, but I should add this: I do not need to decide whether the questionnaire was also a written representation in this case, because, in my judgment, the supporting documents undoubtedly were representations by virtue of regulation 7(7) and quite apart from that subregulation, obviously so.[22]However, if I did have to decide this issue as to the questionnaire, I should certainly decide that it also was a written representation. It is a representation of fact upon each of the points contained in it. It never ceased to be so, by election or otherwise. Regulation 7(2) and (3) contain what is, in truth, a right to elect as to whether to make the questionnaire and documents submitted with it the only representations or to submit further representations. So the questionnaire and documents remained throughout as representations, and further the Council, although they never gave any notification of the kind mentioned in the second half of regulation 7(2), must, despite the answer given to question 18 at an early stage in this process, be taken subsequently to have elected not to make further representations simply because they refrained from doing so, either within the 28 day period or at all, not even during the final week which the planning officer claimed, no matter whether their motive was as stated, pressure of work, or indeed any other reason.[23]I turn to the second point, that is Mr Petchey's contention that the Inspector misinterpreted PPG 2. I shall read the relevant parts. Paragraph 3.4: ""The construction of new buildings inside a Green Belt is inappropriate unless for the following purposes:"[24]There are then set out five matters, I shall read the third: ""Limited extension, alteration or replacement of existing dwellings (subject to paragraph 3.6 below). 3.6 provided that it does not relate in disproportion additions over and above the size of the original building, the extension or alteration of dwellings is not inappropriate in Green Belts."[25]Mr Petchey put the weight of his submissions upon his contention that the Inspector effectively decided in the first sentence of paragraph 5, that this was inappropriate development, because he stated that the appeal proposal was not for an extension to "The Nunnery" by which he meant, it is common ground, the main house. I do not construe the decision letter that way at all. In my view, the first two sentences of paragraph 5 deal with paragraph 3.4 and paragraph 6 deals with paragraph 3.6. The second sentence of paragraph 5 is on the face of it closely related to the first sentence and heavily qualifies it. The Inspector is saying that the garage is a normal domestic adjunct, even though it is detached. Then in paragraph 6 he finds that the appeal proposal is not (a) "disproportionate addition". Therefore, he concludes that it is not inappropriate development.[26]In my judgment, the Inspector was fully entitled to hold that the garage was part of the "dwelling", in the sense that it was a normal domestic adjunct, and thus to treat the appeal proposal as an extension of it. The words "extension... of existing dwellings" are certainly capable, in my judgment, of having that meaning, and he was entitled to form his opinion in determining this matter in that way. The garage is an important domestic adjunct, just as the coal shed was in earlier days, and for example, an outside playroom often is. The mere fact that any of these uses is physically separated from the main house does not prevent them from being part of the dwelling. It is a matter of fact and degree in every case and, for example, if the garage had been at the bottom of the garden, the Inspector would doubtless have taken a different view.[27]My attention has been drawn to the judgments of[28]Mr Justice Auld in North Avon District Council v Secretary of State for the Environment (1993) JPL 761 especially 763/4, of Mr Robin Purchas QC, sitting as a Deputy Judge of this court in ICP Developments Limited v Secretary of State for Environment (1997) JPL 930 especially 938, and of Lord Justice Brooke in the Court of Appeal in R v Derbyshire County Council ex parte Woods (1997) JPL 958 especially 967/8. I do not propose to read extracts from these judgments. Suffice it to say, that the words of Lord Justice Brooke: ""It is of course for the Court to determine as a matter of law what the words are capable of meaning" ""Whether a proposed development met the description was in most cases likely to be a matter of fact or degree and planning judgment"[29]I have already held that the words "extension of... existing dwellings" are capable of having the meaning given to them by the Inspector in the context of the PPG and the circumstances of the present case, and the Inspector was fully entitled to exercise his planning judgment to that effect.[30]Application dismissed.[31]MR ALBUTT: In those circumstances, I will ask for the costs of the First Respondent.[32]THE DEPUTY JUDGE: You cannot resist that?[33]THE DEPUTY JUDGE: Very well, the Applicant Council will pay the costs of the First Respondent.

Cited in 1 later judgment