Tapecrown Ltd, R (on the application of) v First Secretary of State & Anor [2006] EWHC 1012 (Admin)

Case No CO/4652/2005[2006] EWHC 1012 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 11 th April 2006
Strand
London WC2
B E F O R E:
MR JUSTICE BURTON
Between
THE QUEEN ON THE APPLICATION OFAppellantTAPECROWN LIMITEDAppellant-v-
Between
FIRST SECRETARY OF STATERespondentVALE OF WHITE HORSE DISTRICT COUNCILRespondent
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 ROBERT FOOKES appeared for APPELLANTMISS LISA BUSCH appeared for FIRST RESPONDENT
J U D G M E N TTuesday, 11th April 2006
[1]MR JUSTICE BURTON: This has been the hearing, with permission of Lloyd Jones J, of the appeal against the refusal by HM Inspector, Mr Keith Turner, of an appeal by the claimant against an enforcement notice issued by the Vale of White Horse District Council on 11th October 2004 in respect of a building on land east of Coxwell Road, Faringdon in Oxfordshire.[2]The claimant's farm is some five hectares or more, and their case is, and always has been, that the building, a barn, was required for agricultural purposes connected with the use of that farm land. Prior to the building, they lodged, pursuant to Part 6 of the General Permitted Development Order 1995 Schedule 2, notice in relation to their intention to build that building.

(d) of the 1995 order, whereby:

"(i) The developer shall before beginning the development apply to the Local Planning Authority for a determination as to whether the prior approval of the Authority will be required to the siting, design and external appearance of the building, the siting and means of construction of the private way, the siting of the excavation or deposit or the siting and appearance of the tank, as the case may be. (ii) The application shall be accompanied by a written description of the proposed development and the materials to be used and a plan indicating the site, together with any fee required to be paid. (iii) The development shall not be begun before the occurrence of one of the following: (c)(c) the expiry of 28 days following the date on which the application was received by the Local Planning Authority without the Local Planning Authority making any determination as to whether such approval is required or notifying the applicant of their determination."
[3]In those circumstances, there being in this case no such response and the 28 days having expired, that triggered the operation of (vi)(b)(b) of that sub-paragraph, whereby the development could be carried out, provided it did not offend against the Order, within a period of five years from the date on which the Local Planning Authority was given the information referred to in sub-paragraph (b)(ii).[4]The requirement of the Order under A.1 is that development is not permitted by Class A if:
"(c) It would involve the provision of a building, structure or works not designed for agricultural purposes. (d) The ground area which would be covered by any building would exceed 465 square metres."
[5]The barn in this case was, on the case for the claimant, as I have indicated, intended for agricultural purposes and had a floor area of 460 square metres.[6]The Inspector, in upholding the enforcement notice, concluded that as built, or nearly built, the building failed to comply with those requirements for reasons set out primarily in paragraphs 8 and 9 of his judgment, so far as agricultural purposes are concerned, and in paragraphs 3 and 4 so far as the hard standing is concerned. The conclusion, so far as agricultural purposes are concerned, is that although the claimant asserted, and indeed one can hardly think of any other purpose than, agricultural purposes, the cosmetic effect of the building was such that suspicions were raised in the mind of the Inspector as to whether there might be, at any rate in the future, some additional plan in relation to the building other than agricultural purposes. He described the features as follows:
"7. Also along the north-east elevation there are six windows, one either side of each door aperture. Although boarded up at present, these apertures contain window frames which are glazed. There are similar windows along the south west elevation and two in the south east elevation. Given that there are twelve translucent panels in the roof which currently provide light levels which are more than adequate for the storage use taking place, I consider the addition of windows in this arrangement to be unusual and unnecessary unless internal sub-division is contemplated."
[7]Then in paragraph 8 he refers to the slight rustic effect imparted to the building by the use of vertical timber cladding, but he did not consider that the building had the appearance of a typical modern barn. He said this:
"In their blocked up state [the windows] currently have an impact upon the overall appearance of the building and, were all the openings to be revealed, this effect would be even greater. Since the openings exist they could probably be opened up without reference to the Council."
[8]In those circumstances, he concluded, simpliciter, as there set out, although I shall return to why that should only have been a starting point, that he was not satisfied that the building was intended for agricultural purposes.[9]So far as the hand standing is concerned, a substantial hard standing of almost the same area as the floor space was constructed alongside the building. It is to be recalled that the floor area of the building was 460 square metres, and the maximum area permitted under the 1995 order is 465 square metres. "3. The appellant contends, however, that the hard- standing is temporary and was to serve only as a platform for storage and building operations. It has not been removed because building works were not completed following service of the Notice. I accept that some form of hard standing may be required during building operations. However, the hardcore of which it is comprised is similar in nature and appearance to that laid on the ground within the building. It is also much more extensive than would be required for construction, especially since the area within the building was surfaced and could have accommodated some plant and materials. Furthermore, the Council contend that the hard standing was laid after the major part of the construction works had taken place. This has not been refuted by the Appellant who contends it was to be moved into the building to complete the floor in due course. However, the floor in its current form seems adequate for the purpose to which the building is being put and no indication was given or has now been given about the floor construction proposed."[10]The Inspector concluded that the works which are not yet complete would not require extensive hard standing and he points out that the building was, in any event, in use. "In all the circumstances I consider that the hard standing substantially exceeds what may have been required for the erection of the building and, consequently, I consider that, on the balance of probability, it formed part of the development. This being so, it would have exceeded the prescribed area limit of 465 m 2 set out in the GPDO."[11]In those circumstances, the Inspector concluded that there was a breach of planning control; and there has been no appeal pursued by the appellant against that conclusion under section 174(2) of the Town and Country Planning Act (“the Act”), which I shall now read. "(2) An appeal may be brought on any of the following grounds - (a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged; ... (c) that those matters (if they occurred) do not constitute a breach of planning control; ... (f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach; (g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed."[12]Leaving aside therefore sub-paragraph (c), I turn to sub-paragraph (g). The enforcement notice required the demolition of the building as well the as hard standing, and imposed a period of one month under section 173(9) of the Act. The Inspector allowed the appeal and substituted six months, and there is no further appeal against that.[13]The two live issues before me relate to sub-paragraphs (a) and (f). The real substance of it is first that the Inspector ought to have taken steps which secured that the windows should be permanently blocked and that the risk that he referred to in paragraph 8 of his decision, to which I have referred, that they could probably be opened up without reference to the Council, could and should have been eliminated; and, secondly, that the only enforcement that should have taken place, and/or the only condition imposed, should have related not to the building, which was well within the 465 square metre limitation, but to such part of the hard standing as exceeded that area of 465 square metres, ie, all but five square metres. As the case for the appellant, although rejected by the Inspector, was and has always been that the hard standing was only intended to be temporary, on the face of it that is a condition with which they would have been, and certainly from the point of view of this appeal are, willing to comply.[14]Unusually, the Inspector dealt next in his judgment not with ground (f) but with what he calls the deemed application, that is the operation of sub-paragraph (a). The criticism of this by Mr Fookes for the appellant is that throughout the four paragraphs in which that deemed application is dealt with, the Inspector carries through, and only carries through, his conclusion that this was not a building for agricultural purposes. In those circumstances, it is not surprising that he concludes in paragraph 13 of his decision that the design of the building possesses an industrial or commercial character of a kind not normally found in the countryside and, indeed, is in breach of various policies. Had the Inspector turned his mind to the question as to whether it could be put beyond doubt that the building was for agricultural purposes, then the criticisms and critique by the Inspector of a non-agricultural building being built in an agricultural area would have fallen away. That could have been, said Mr Fookes, dealt with by the imposition of a condition in relation to the windows.[15]Similarly, the same point would arise in relation to the hard standing. A condition can be imposed on that deemed planning permission which would arise if an appeal were allowed pursuant to section 174(2)(a). He refers to section 177(1), (3) and (5) of the Act, and Miss Busch, counsel for the first respondent, the First Secretary of State, has not taken issue with the proposition that there can be conditions imposed on a deemed planning permission.[16]But it was common ground, at the end of the day, that although it was perhaps unusual for the deemed application to be dealt with in second place, the reason for that seems to have been the approach by the Inspector. If the Inspector had not adopted that approach, then the same considerations would have fallen to have been considered whether he was approaching the question of a deemed application but with conditions, or, under ground (f) of the appeal, in relation to whether the enforcement notice ought not to have provided for the destruction of the building but only for the destruction, on appeal, of the hard standing, over and above the permitted area, and the imposition of those same conditions to which I have referred.[17]The Inspector's consideration of ground (f) is that which has been the subject of most attention during the course of this appeal. In paragraph 15 the Inspector rightly points out the submission of the appellant, namely that the removal of all the hard standing and the building is considered excessive, because it is suggested that removal of all the hardcore outside the building would render the building permitted development under Class A of Part 6 to Schedule 2 of the GPDO, since it would then be less than the prescribed 465 square metres.[18]The Inspector then continues as follows:
"That stance would be correct if I had not also concluded that the building constitutes one not designed for agricultural purposes. In these circumstances mere removal of the hardcore would not regularise matters in the manner suggested."
[19]At that stage in his judgment, the Inspector appears to be concluding that what is the definitive blockage to any resolution of the problem is not the hard standing but the concern he has about the windows and, consequently, the possibility of non-agricultural purposes.[20]He continues in 16:
"Simply blocking up the openings formed in the building in a temporary manner would not remedy the situation either because it is probable that the coverings could be removed at any later time without any permission being needed. This would result in a non-agricultural type of building remaining in an area where it would not normally be permitted."
[21]This is a repetition of what the Inspector said in paragraph 8 of his judgment and, once again, does not address the obvious option for the Inspector of imposing a condition to ensure that that did not occur. But having indicated that the problem was not the hardcore, but the agricultural purposes point, he now reverses himself in paragraph 17, which has been the centre of our consideration. It reads as follows:
"I have also considered whether permanent blocking of door and window openings and reinstatement of external cladding to match that elsewhere on the building would be acceptable in transforming the building to one of a design suitable for agriculture."
[22]Although he says he has considered it, he does not say what the result of his consideration was, except by the use of the word "however" in the next sentence. I can only construe that as meaning "that may well be a possibility, however ...". At any rate, the "however" reads as follows:
"However, I am not satisfied that some form of hard standing for means of access and turning of vehicles within the site would not be required in any event for the kind of use to which the building is currently being put. That being so, then the development would again be larger than the limit prescribed in the GPDO and would require planning permission which I have concluded should not been granted."
[23]The circle is completed and the Inspector concludes that, consequently, he cannot and should not ameliorate the position under ground (f).[24]I find his reasoning totally impossible to follow. If, as in paragraph 15, the hard standing problem could be resolved but the problem is the agricultural purposes, then when one comes to paragraph 17, by which he suggests that the agricultural purposes could be solved were it not for the hard standing, the conclusion would appear to follow that both are soluble. In any event, reading the whole set of paragraphs as best I can, it appears to me that the Inspector concluded, on balance, that the agricultural purposes problem could be solved but that the hard standing problem could not. The basis upon which he resolved, notwithstanding paragraph 15, in paragraph 17 that the hard standing could not be resolved is a conclusion which he formed, without having heard argument on the point, that "some form of hard standing" might be needed and he puts that in a sentence which is rendered uncertain by the presence of double negatives:
"I am not satisfied that some form of hard standing would not be required."
[25]The basis upon which Miss Busch tries energetically to support that proposition is by submitting that this was a conclusion open to the Inspector because of his having rejected the suggestion by the appellant that the hard standing was only temporary. He was thus entitled to conclude, she submits, that it must have been intended as permanent and further thereby he was entitled to conclude that if the appellant had intended it to be permanent, it must have felt it was needed and, consequently, they must have required at least some hard standing for means of access.[26]He also refers to the statement in the response by the respondent to the Inspector in which they had asserted the need for the hard standing for access, although it is quite plain that the context of that assertion was limited to the need for access for vehicles and equipment during the construction of the barn.[27]I conclude that there are only two correct approaches to paragraph 17. The first is that this was a conclusion to which the Inspector was not entitled to come; that it was, in effect, Wednesbury unreasonable. I see no basis on which it can be concluded, without more, that some form of hard standing over and above five square metres was necessary for access to vehicles, not least when I look at the photographs which show a very large entrance which would mean that, at any rate, most vehicles would be able to enter inside this large barn and do any turning within the barn.[28]Alternatively, this is a proposition arrived at by the Inspector without putting to the Appellant what would plainly be a very material matter, as it naturally must follow that it was determinative, as I have concluded, against the appellant, and that would be a breach of natural justice if indeed it was the case, as Miss Busch has conceded. I am satisfied it was the case. What it would mean, as Miss Busch, effectively, was not able to disagree, would be that the only basis upon which these appellants had built this barn, having properly followed the route prior to the construction laid down in the 1995 Order, would be to build themselves, and keep, an area of hard standing which would put them in inevitable breach of the Order. Miss Busch submits that implicit in the Inspector's conclusion must have been a decision that, without larger than five square metres of hard standing, this development would not be viable. As I have indicated, not only is that not a point that was put to the appellant but it carries with it a conclusion that the only basis upon which the appellant entered into this development was in the hope that they would be able to get away with something which broke the Order.[29]I am satisfied that the proper course, absent any fresh case which was not explored before the Inspector, would have been for the Inspector to have imposed conditions limiting the hard standing to the five square metres left free over and above the area of the barn and requiring the permanent blocking of the door and window openings. If, indeed, in those circumstances the appellant would not have been pleased with that outcome, that is for them, and it is one than which they could not expect better, because anything other than that, on the findings of the Inspector, would breach the Order and, indeed, they themselves have always asserted that they did not require the hard standing on a permanent basis.[30]That could have been done either under ground (f) by limiting the enforcement notice in the way indicated, or by imposing the conditions to which I have referred under a deemed condition under ground (a). What this Inspector did was, in my judgment, impermissible, either as Wednesbury unreasonable or as in breach of natural justice, or both, and I quash the decision of the Inspector and refer the matter, no doubt to a fresh Inspector, for further consideration.[31]MR FOOKES: My Lord, on the question of costs, there is a statement.[32]MR JUSTICE BURTON: The first question is the principle of costs. Do you oppose the principle, Miss Busch? Do you oppose an award of costs?[33]MISS BUSCH: No.[34]MR JUSTICE BURTON: The next question is an amount. There are two possibilities here: one is that I make a summary assessment and the other is that I make an interim order with the balance off to a detailed assessment, expecting that it will be agreed rather than either side resorting to detailed assessment. Unless there is agreement, I tend to feel that summary assessments are very unjust because you come out with a figure which is what neither side have actually spent, but there it is. I will do whatever you wish. There are two possibilities. As I say, one is a summary assessment and things get knocked off which perhaps should not. Alternatively, an interim order, and you can go away and those who know best can either agree the figure or have it assessed.[35]MR FOOKES: I am slightly unclear what the position is because we have exchanged statements of costs.[36]MR JUSTICE BURTON: Yours, on the face of it, are rather larger than theirs. On the other hand, Treasury solicitors are notoriously more economical. Yes, Miss Busch?[37]MISS BUSCH: If it helps, we do not actually oppose the amount of costs claimed. The one point is that I am asked to seek confirmation is as to VAT, whether or not my learned friend's instructing solicitors are VAT registered, but as a matter of fact, the solicitors' fees are quite reasonable and the excess comes from my learned friend's fee.[38]MR FOOKES: My clients are not VAT registered.

MR JUSTICE BURTON: So £10,500.41.

[40]MISS BUSCH: Yes.[41]MR JUSTICE BURTON: Then that is what I shall assess them at. Thank you both very much.