Liddiard, R (on the application of) v The First Secretary of State [2005] EWHC 3045 (Admin)

Case No CO/2250/2005[2005] EWHC 3045 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 22nd November 2005
Strand
London WC2
B E F O R E:
MR JUSTICE CRANE
Between
THE QUEEN ON THE APPLICATION OF LIDDIARDClaimant-v-
Between
THE FIRST SECRETARY OF STATEDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR M RUDD (instructed by GURNEY-CHAMPION & CO) appeared for CLAIMANTMR A SHARLAND (instructed by TREASURY SOLICITORS) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE CRANE: This is an appeal under section 288 of the Town and Country Planning Act 1990 against a decision of an Inspector to refuse to grant retrospective planning permission.[2]The factual background is this. The claimant is the owner of land and property at Summerdale Farm, Hatch Lane, Liss in Hampshire. On those farm premises is a range of single storey buildings which form a U-shape. These premises were originally constructed for agricultural or equestrian purposes.[3]The claimant, however, has the benefit of a Certificate of Lawful Use in relation to part of those buildings which permits the use of that part for residential purposes.[4]Prior to the application for planning permission which was made on 24th June 2003, building works had commenced in order to achieve certain changes which the claimant wished to make. The work involved extending part of the property, adding windows and doors to an extension, extending the floor place of the dwelling and, on one view, adding, on another view, not adding, a residential curtilage.[5]The application for planning permission was refused on 10th October 2003. On 24th August 2004 six enforcement notices were issued by the second defendants, the local planning authority, the East Hampshire District Council in respect of the use of the land which it was the subject of application for planning permission.[6]The Inspector, as I have indicated, refused those appeals against enforcement notices which were still outstanding. There is no appeal against those decisions, but he also rejected the claimant's appeal against the refusal of retrospective planning permission and it is that decision which is attacked, a decision set out in the letter dated 28th February 2005.[7]The buildings are situated in an Area of Outstanding Natural Beauty. They are shown on a plan at page 34 of the bundle and in detail on a plan at page 33. Before I come to the description of the premises, I turn to the Certificate of Lawful Use. That was granted to the predecessor in ownership of the present claimant. It was applied for on the basis that use had taken place for the 4 years prior to application and the use described comprises:
"The certificate has been granted in respect of the residential use of the building cross-hatched in black and outlined in red on the attached plan. The certificate does not include any residential curtilage or garden as no such facility exists or is present on the site. Furthermore, the planning authority consider that the residential use is in connection with the use of land at Sommerdale Farm, and that it does not have any rights to be occupied other than in association with the use of the holding."
There followed a note to the applicant which is clearly not a formal part of the Certificate, but which emphasised the absence of any private curtilage or garden.[8]I turn back to the plan at page 33. If one compares the plan attached to the certificate with the plan at page 33, there is a part of the U-shaped buildings, which is covered by the Certificate and which is in use as a dwelling. The application for planning permission covered certain additional parts of the U-shaped building and its surroundings.[9]Section A, which had been a store room, has been partially converted to a bedroom. Section marked B had similarly been a store room, but a limited amount of work had been carried out on that. Section D is a patio laid adjacent to the area covered by the certificate. Section E is an infilling under what were the eaves of the building undoubtedly covered by the certificate and Section F is a larger outdoor area, mostly covered by grass. As I have indicated, the five enforcement notices which remained in contention were the subject of appeals which were rejected by the Inspector.[10]The Decision Letter dealt separately with the appeals against the enforcement notices so far as they survived and with the appeal against the rejection of the planning application. But one of the principles of law, which are accepted on both sides, is that the decision letter must be read as a whole in a reasonable and flexible manner and not as a contract or statute. Since the enforcement notices dealt with the same areas as were the subject of the planning application, it was plainly not necessary for the Inspector to repeat what he said in relation to the enforcement notices when he came to deal with the planning application.[11]So far as the other principles to be applied are concerned, it is sufficient to repeat them, since they are not in dispute. Questions of planning judgment are for the decision-maker and not for this Court. The decision-maker has a duty to have regard to all material considerations but it is not necessary for him to mention them all. He must state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the principal important controversial issues. The principal authority for that proposition is South Bucks District Council v Porter No 2 [2004] 1 WLR 1953. The decision-maker, although required to take into account all material considerations, does not need to take into account any matter where when is no real possibility that the matter concerned would have made a difference to the decision. He must of course not take into account irrelevant material. His reasons must be proper, intelligible and adequate. Finally, on Wednesbury principles the decision must be one that a reasonable person, in the position of the decision-maker, properly directing himself could have reached.[12]The submissions made by Mr Rudd, on behalf of the claimant were helpfully divided by him effectively into three parts. He first of all relied on lack of reasons set out by the Inspector. Secondly, he submitted that there was a failure to consider matters which were relevant. Thirdly, he contended that there had been an error of law in relation to the Certificate. Fourthly, he submitted, but accepted as not adding anything to the other three submissions in the context of this case, that the decision in relation to planning permission was unreasonable.[13]I propose to deal with the alleged error of law first in relation to the Certificate of Lawful Use, since that certificate is also relevant under the other heads of complaint outlined by Mr Rudd. What the Inspector said about the Certificate was this:
"27. The Appellant contends that this area of land [marked F] should be implied to be part of the curtilage of the dwelling."
It is his case that good planning practice requires dwellings to have a curtilage around them as amenity space and that the Council exceeded the bounds of what can be done when issuing a CLU by specifically excluding such provision. 28. The CLU is clear in its terms that the lawful use was the use of a building for residential purposes. This was demonstrated by documentation establishing such a use had taken place for more than four years. However, it appears that the evidence did not indicate that the use had subsisted for ten or more years or that the use extended beyond the confines of the building. In these circumstances I consider that the Council were required to issue a CLU covering only that part of the building within which the use had been subsisting. 29. There is a material difference between a planning permission for a dwelling and the issuing of a CLU for residential use of a building. In the former case planning policy and good practice are material considerations whereas in the latter they are not. An application for a CLU(sic) must be determined only upon the facts. To do otherwise would be untenable since certificates for uses which are contrary to planning policy can be issued if supported by appropriate evidence. 30. For the above reasons I conclude that area 'F' is not part of the curtilage of the dwelling. It forms part of a common area embraced by the building for which the lawful use is agricultural and equestrian use. 31. The Appellant suggested that all dwellings should have some form of curtilage for outdoor amenity space. I do not accept this proposition. Whilst many dwellings may have garden areas, all do not. For example, flats or maisonettes, loft conversions and some barn conversions do not. Indeed it appeals that the dwelling in the appeal building did not, despite its rural location."[14]It is Mr Rudd's submission that a Certificate of Lawful Use cannot properly contain conditions. For present purposes although that general proposition has not been argued in detail, I proceed on the basis that it cannot contain conditions but nothing turns on that part of the certificate which indicated that the use was restricted to use in conjunction with Summerdale Farm. However, I do consider that the certificate could properly define the extent of the premises to which the certificate applied. Here it plainly purported to exclude any curtilage.[15]The claimant, through Mr Rudd, however, submits that a residence must have a curtilage. He accepts that there is no clear authority for that proposition in case law, but he directed me to three authorities which he suggested had some connection with the present problem. The first is Gravesham Borough Council v Secretary of State for the Environment (1983) JPL 4O7. In the course of his judgment in that case, McCullough J said, at page 3O8:
"In using a simple word in common usage and leaving it undefined, Parliament realistically expected that, in the overwhelming majority of cases, there would be no difficulty at all in deciding whether a particular building was or was not a dwelling-house. The use in a statute of almost any word in common usage may give rise to difficulties of interpretation in a very small number of cases."
Then he went on later to deal with examples of buildings which were plainly dwelling houses. Nevertheless, the fact that the area covered by the Certificate is a residential building is not in dispute and I certainly accept that that is what it is.[16]The second of the two of the three authorities was Denis Lowe v The First Secretary of State [2003] EWHC 537 Admin. That case involved a consideration of whether a lengthy fence was within the curtilage of a listed building. At paragraph 21 Sir Richard Tucker said this:
"Of the authorities cited to me, I derive most assistance from the decision of the Court of Appeal in Dyer v Dorset County Council, and in particular the judgment of Nourse LJ in the passage already referred to at page 358F-G. The expression 'curtilage' is a question of fact and degree. It connotes a building or piece of land attached to a dwelling house and forming one enclosure with it. It is not restricted in size, but it must fairly be described as being part of the enclosure of the house to which it refers. It may include stables and other outbuildings, and certainly includes a garden, whether walled or not. It might include accommodation land such as a small paddock close to the house. But it cannot possibly include the whole of the parkland setting in which Alresford Hall lies, nor the driveway along which the fence was erected. It could not sensibly be contended that the site of the fence was attached to the hall, or that it formed one enclosure with it, or was part of the enclosure of it."
[17]The third of the cases was a decision of His Honour Judge Cook at Guildford County Court Guildford Borough Council v Whentley Ltd (unreported), where he discussed, at page 7, what he described as the 'old question' of what is a curtilage. He took the view that counsel's homespun definition of "the area surrounding a building" was a definition which raised more questions than it answered. He referred to Hallsbury's Laws which summed up the authorities, he said, by "saying that in the absence of any statutory definition, curtilage bears its restricted and established meaning of connoting a small area forming part and parcel with the house or building, which it contains or to which it is attached." He said that he had also delved in the Shorter Oxford English Dictionary which defines curtilage as "a small courtyard or piece of ground attached to a dwelling house and forming one enclosure with it."[18]The defendant, through Mr Sharland, submits that in the present case all that one needs to do is to look at the Certificate to see whether a curtilage was included in what was certified or not. His submission is that unless the Certificate was quashed, it stands, unless of course there was a new application and a new certificate.[19]It is pointed out by Mr Rudd that under section 195 of the Town and Country Planning Act 1999, there can be an appeal only if "the application is refused or refused in part." In my view, if there had been an application which applied for a certificate for the use of the building in terms which claimed the use of a curtilage, and that was refused, there would then be a refusal in part of the application which could be the subject of an appeal. In the present case the assumption must be, and I think counsel agree, that the application did not raise in terms the question of a curtilage, although the application itself is not apparently available.[20]I agree with the submission of Mr Sharland on this point. Unless it is upset or unless it is added to by a new certificate it stands in the terms in which was granted. In so far as it defines the building with which it is dealing, I agree with Mr Rudd's submission, supported by such authorities are there are, that the extent of any curtilage will normally be a question of fact and degree. In most circumstances that will be something to be decided, as indeed Sir Richard Tucker was deciding, on a consideration of the geography of the premises. But, in my view, it is clear that there may be facts in a particular case which indicate a boundary to the curtilage or the absence of a curtilage. A boundary of the curtilage or the absence of a curtilage may be defined as here by a certificate; it may be defined by the extent of planning permission and it may be indicated by the particular geography on the ground. In the present case, it was the Certificate which defined the premises. It excluded any curtilage and, in my view, therefore the conclusion of law which the Inspector reached was correct.[21]I then turn to the other submissions made by Mr Rudd. In relation to the failure to give reasons, he relied on a failure to set out in the reasoning a consideration of the Certificate of Lawful Use. I accept the existence of the Certificate was raised in evidence by both parties. But I have found that there was no error of law in his conclusion, at paragraph 31 of the decision letter. It is clear, therefore, that the extent of the premises included within the Certificate did not assist the claimant. There was no curtilage to be considered.[22]As far as the relevance of the Certificate apart from the existence of any curtilage is concerned, it is clear that throughout the decision letter this was accepted as an application for various additions to an existing dwelling. There was no dispute that the Certificate covered the premises already being used as a dwelling. Although the Certificate was not referred to separately in each part of the decision letter, such relevance as it had, once the error of law is taken out of the equation, was adequately covered. It follows that I can deal shortly with part of the second of Mr Rudd's submissions, namely a failure to take into account the Certificate as opposed to the failure to give reasons in relation to it. In my view, the same submissions must fail as failed in relation to the giving of reasons. All the indications are that in so far as the Certificate was relevant it was considered, for the reasons I have given.[23]I go back to the second part of his first submission, namely the submission that the Inspector failed in his giving of reasons to properly consider PPS7. That had undoubtedly be highlighted in paragraph 18 of the written closing submissions, which were put before the Inspector and expanded in oral argument by Mr Rudd before the Inspector. At paragraph 18, the written submissions read as follows:
"The development complies PBS7. PPS7 envisages residential development within the countryside and under paragraph 1, (vi) (Key Principles) 'All development in rural areas should be well designed and inclusive, in keeping and scale with its location, and sensitive to the character of the countryside and local distinctiveness.' The development is well designed, inclusive and does not significantly differ externally from the original development on site."
[24]The possible significance of PPS7 was that it had not been in existence at the time when the planning permission had been refused. The document was in fact referred to in paragraph 33 of the Decision letter in the following terms:
"Area 'F' has also been subject to some domestication through the introduction of a couple of planting beds. Were the use to continue, I consider that further similar works could erode the simplicity and rural nature of this enclave and render it more residential in nature and appearance. This would, in my judgment, be unacceptable in the light of the development plan policies which seek to preserve and protect the rural character and appearance of the AONB which is to be accorded the highest protection in the light of the advice in Planning Policy Statement 7 at paragraph 1021."
That is the only specific reference to PPS7.[25]It is submitted by Mr Sharland that if one looks at the planning policy documents, particularly the local planning policy documents, to which reference was made ENV 13, H10 and E7, it is clear that the local policies relating to residential development in the countryside, and indeed in an Area of Outstanding Natural Beauty were considered by the Inspector and that it was not necessary for him further to set out specific findings in relation to PPS7.[26]The Inspector reached his conclusions on appeal No 7, relating to the planning application in the following terms:
"49. The Planning application was made retrospectively in June 2003. It acknowledges that the development for which permission was sought had already been carried out. However, according to the plans the development did not include Area B and it is not referred to in the Officer's Report. In addition, there is no reference on the drawings or in the Report, to use of Area F. Accordingly, I shall consider the appeal in this context. 50. This proposal would extend the area of the existence dwelling by adding Areas A and E which I have already found to be a significant increase in floor area and providing accommodation for more people than could presently be facilitated. It would also include the alterations to the appearance of the north elevation which I have found to be material and harmful to the character of the surroundings. In addition, the external area included would extend activity associated with the residential use outside the confines of the building which presently would not be permitted. This too I have found to be detrimental to the surroundings and contrary to the aims of the development plan. 51. The Officer's Report refers to strengthening of some walls. These appear to be the ones along the north elevation and the return to adjacent to Area B which are shown on the drawing as cavity construction which some other walls are not. I agree with the Council that this would represent substantial reconstruction of the building which renders it contrary to the requirement of Policy GS2(c). 52. I find that the development taken as a whole, would represent a significant change from the modest lawful residential accommodation to a substantial dwelling. The introduction of new windows and use of external areas would render this readily apparent and the other aspects of activity and increased accommodation described above would also apply. Summary 53. I find the development which has occurred, with the exception of the operational development alleged in relation to Area B, to be individually damaging in varying degrees to the character and appearance of the surrounding rural context. When taken together I consider that they represent a major shift from a low-key dwelling to a major residential enclave in the countryside. As such it would be harmful to the character of the surroundings and contrary to the aims of the development plan. It may be not widely seen, but its presence is apparent to some nearby occupants and, merely because it is not conspicuous does not justify permitting development which would otherwise be objectionable."
[27]Those findings and the Inspector's consideration of the other planning policy documents make it clear that most of the matters specifically quoted from paragraph 1.6 of PPS7 were considered in effect by the Inspector. It is true that he did not therefore make findings in particular on the two aspects which Mr Rudd emphasises, namely that the development should be "well designed and inclusive" but in my judgment, it was not necessary for the Inspector specifically to deal with those considerations and even if he had, I see no indication that those considerations in so far as they differed in any way from the ones he considered would have altered his final conclusion.[28]I pass therefore to the second part of the second of Mr Rudd's submissions. It is submitted that the Inspector failed to consider or at least to consider properly the relevance of nearby developments. It is common ground that the Inspector was entitled to take into account the possible future effect of permitting these developments as a precedent. At paragraph 22 onwards of his decision letter, he said this:
"Whilst I accept that the details of the development previously proposed for the buildings close to the south-east plank of the appeal site were different, it seems to me that opportunities to expand the residential use of the upper floor of one building may remain. That use was acquired and is the subject of a certificate of lawful use and there are other parts of the building into which the use could be expanded. This would intensify residential use and associated activities through enlargement of accommodation and could effect the rural character of the surroundings. 23. I was informed that Sommerdale Farm was originally a much larger holding than it is now. It has undergone subdivision and, as a consequence there are more occupiers of the land with separate uses. According to neighbouring residents there are developments taking place there which are of a similar nature to that which is the subject of these appeals. Whilst I have no details of these, it seems that opportunities could arise in the vicinity of the appeal site for similar forms of development which would be difficult to resist. 24. Such opportunities must be considered in the context of the appeal site and its surroundings which comprise part of the AONB the landscape character and quality of which it is important to preserve. In these circumstances I consider that intensification of residential use in an area where residential development is not normally permitted would be harmful to that objective. 25. The Appellant referred to a barn a short way to north-east of the appeal building where the Council have resolved to grant planning permission for conversion to a dwelling. It appears to involve the adaptation of an existing building. However, I cannot comment upon its likely impact upon its surroundings since I have no details pertaining to that proposal."
[29]In relation to paragraph 23, it is pointed out by Mr Rudd that the Inspector had no details of the developments which were said to be taking place. But he complains that, nevertheless, the Inspector took into account opportunities which could arise in the vicinity of the appeal site "for similar forms of development". He complains that what had been granted planning permission, namely the barn, a short way to the north-east of the appeal building, received different treatment in the Inspector's decision.[30]The barn, for which planning permission had been granted is shown on the far right-hand side of the plan at page 34. It is common ground that planning permission had been granted and that whether or not work had started on the conversion, it had not been completed. The barn is apparently visible from Summerdale Farm, although it is not known whether the Inspector accepted the invitation to look closely at the particular barn in question.[31]It is accepted that the representative of the council who gave evidence at the enquiry did not have any detailed knowledge of that particular planning permission and certainly no plans or other details of the application were made available at the hearing, no doubt, because it was something that came to the notice of the claimant at a relatively late stage.[32]I have come to the conclusion that the Inspector was entitled to deal with matters in both paragraph 23 and paragraph 25 in the way he did. He recorded, in paragraph 23, that he had no details of the alleged developments taking place in the immediate vicinity of Sommerdale Farm. Equally, he decided that he had no details in relation to the barn conversion. In that sense, he dealt with them both equally and there is no indication that he was other than entitled to reach those conclusions, namely, no detail, to take them into account. It seems to me that he was entitled, nevertheless, from the plans and the nature of the buildings to bear in mind that, as he said, opportunities could arise in the vicinity of the appeal site. I do not accept that there is any improper treatment or inappropriate treatment of the fact that planning permission had been granted for a barn conversion, a short way to the north-east of the appeal building. He clearly bore in mind that such planning permission had been granted but, as he indicated, and in my view, he was entitled to so to indicate, he could not comment on its likely impact since he had no details pertaining that proposal.[33]In my view, when one reads the two crucial paragraphs there, side by side, it is clear that he is dealing with both in a way that which was fair and appropriate and certainly not in a way that could be characterised as unreasonable.[34]Mr Rudd made it clear that he relied on the three limbs of his submissions and that the contention that the decision was in the end unreasonable depended on the outcome of his submissions on those three particular limbs. In the light of my findings, I must dismiss this appeal.[35]MR SHARLAND: My Lord, I would apply for the defendant's costs in this matter, I do not know whether a statement of costs has been handed up to you by either party.

MR JUSTICE CRANE: I do not think I have unless they are buried in the file.

[37]MR SHARLAND: They have been prepared after the file was lodged. My Lord, the costs claimed by the defendant are £5,672 including just under £1,800 for counsel. My Lord, to put that in context the claimant's statement of costs is over double that.

MR JUSTICE CRANE: I still have not got that (Same Handed).

[39]MR SHARLAND: So we are coming in at less than half the claimant's rate. In those circumstances we should recover our whole costs because it is extremely reasonably.

MR JUSTICE CRANE: You would invite me to grant costs and assess them summarily today.

[41]MR SHARLAND: Yes, my Lord, I would.

MR JUSTICE CRANE: What do you say, Mr Rudd?

[43]MR RUDD: I am not in a position to resist the application.[44]MR JUSTICE CRANE: I should have said, the First Secretary of State who has appeared, is it not, so clearly he should have his costs and having looked at the schedules and bearing in mind Mr Rudd's lack of opposition, I will summary assess those at £5,672. Thank you for your skeletons and your submission.[45]MR RUDD: I should at this stage rise to ask you for permission to appeal this decision. The principal issue that I would raise at this stage is one of being an important point of law. That being whether the certificate of lawful use is to be read as it is granted, in circumstances where were it attempting to condition or, what I have would said and submitted, is a lawful use, essentially seek to prevent a lawful use. I would say in the circumstances that we find ourselves in with a complete lack of judicial authority this might be a point of consideration in the Court of Appeal.

MR JUSTICE CRANE: Thank you.

[47]I am afraid I am against you, and I will explain why.[48]First of all, I accept that there is a point of law both in relation to the whole nature of a curtilage, the issue whether it is always attached to a dwelling-house and its extent, and in an appropriate case the issue how far that can be limited by a certificate of lawful use. They are all matters which could provide interesting fodder for the Court of Appeal. But I take the view that in the present case, on the assumption which I think nobody quarrels with, that the certificate granted must have granted the application in the terms in which it was made, it seems to me not realistically arguable that that aspect of the certificate could have been ignored by the Inspector and I therefore see no real prospect for the Court of Appeal will disagree in the circumstance of this case, on what I might call the short curtilage issue. So I afraid I refuse permission.