Hilliard Brothers (Ewell) Ltd, R (on the application of) v Secretary of State for Communities & Local Government & Anor [2008] EWHC 730 (Admin)

Case No CO/274/2007[2008] EWHC 730 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 17th March 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE FORBES
Between
THE QUEEN ON THE APPLICATION OF HILLIARD BROTHERS (EWELL) LIMITEDClaimantv
Between
THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendantEPSOM & EWELL BOROUGH COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
James Findlay (instructed by Downs Solicitors LLP) appeared for ClaimantPhilip Coppel (instructed by the Treasury Solicitor) appeared for First Defendant for The Second Defendant was not represented and did not attend
J U D G M E N T

MR JUSTICE FORBES: Introduction

[2]In these proceedings Hilliard Brothers (Ewell) Limited ("the appellants") apply under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") for an order quashing a decision of an inspector duly appointed by the Secretary of State of Communities and Local Government ("the Secretary of State") by which the Inspector ("the Inspector") dismissed the appellants' appeal under section 78 of the 1990 Act against refusal of planning permission by the Council on 19th May 2005. The appellants also seek permission to appeal pursuant to section 289 of the 1990 Act against the Inspector's dismissal of the appellants' appeal under section 174 of the 1990 Act on Grounds (a) and (f) against an enforcement notice issued by the Council dated 12th December 2005. By agreement, the application for permission has been rolled up with the appeal under section 289 if permission is granted.[3]The Inspector's dismissal of the two appeals was contained in a single decision letter dated 11th December 2006. The appellants did not seek permission to appeal within 28 days after the date upon which they received notice of that decision as required by RSC Order 94, rule 12. However, I granted the necessary extension of time, Mr Coppel having indicated on behalf of the Secretary of State that the application to extend time was not opposed. Having considered the matter further, in all the circumstances I grant permission to appeal under section 289 and proceed to deal with both appeals on their merits. The background[4]Downs Farm, Reigate Road, Ewell, Surrey ("the farm") is a farm of approximately 116 acres located within the Metropolitan Green Belt. The farm is split in two by College Road. Approximately 72 acres lie to the north of College Road and the remaining 44 acres lie to the south. The buildings serving the farm are in an area on the eastern flank of the north half of the farm. These are shown in more detail in the plan to be found at page 21 of the court bundle. To the west of the main collection of agricultural buildings is an area bounded by bunds (marked as area C1 and C2 on the plan). The area marked as C1 and C2 has been resurfaced and covered with hardstanding. According to the appellants' case at the planning inquiry, the land north of College Road has long been used for various agricultural purposes. Prior to 1969, it was used for market gardening. Throughout the 1970s and early 1980s, it was in arable cultivation. In 1983 it was moved into hay making and some sheep were run on the land.[5]After the foot and mouth crisis of 2001, it was decided not to allow further livestock on the land. Following discussions with the adjoining farmer, it was decided to put the site into use for the production of turf. That operation commenced in 2005. It was the appellants' case at the inquiry that the bunds and hardstanding on area C1/C2 were essential for the production and sale of turf, both for the storage of agricultural machinery and to allow for customer parking. The relevant chronology[6]The key events occurred as follows. On 2nd February 2005 the appellants applied to the Council for planning permission. The proposed development was described as:
"1. Resurfacing of part of the existing car park. 11. Retention of part of the car park. 111. Retention of a bund surrounding the car park."
On 19th May 2005 the Council refused the application for planning permission. The appellants duly lodged an appeal against that refusal. On 12th December 2005 the Council served an enforcement notice on the appellants. The enforcement notice applied to the same land that had been the subject of the planning application. The breach of planning control alleged in the enforcement notice is as follows:
"The formation of earth bunds within the area identified on the attached plan and described as 'Earth Bunds'. These bunds form the south western boundary and the south eastern boundary of an area identified as C on the attached plan. "
The resurfacing and creation of a hardstanding area identified as area C on the attached plan." The requirements of the notice are as follows: "(i) Area C "Remove the material used to create the hardstanding marked on the attached plan as area C and restore the land to a condition suitable for agricultural use. (ii) Earth Bunds "Remove the earth bunds, which have been identified and marked on the attached plan as 'Earth Bunds' and restore the land to a condition suitable for agricultural use." The time period given for compliance by the enforcement notice was 26 weeks. On 19th January 2006 the appellants appealed against the enforcement notice on grounds (a), (b), (c), (d) and (f), as set out in section 174(2) of the 1990 Act. However, at the outset of the inquiry the appellants withdrew grounds (b), (c) and (d) of the appeal and relied only on grounds (a) and (f). On 11th December 2006 the Inspector dismissed both appeals. The legal framework[7](1) Under section 288(1)(b) of the 1990 Act, the grounds of challenge to a decision of the Secretary of State's Inspectorate are: "(1) That the decision is not within the powers of the 1990 Act, or(2) That any of the relevant requirements have not been complied with in relation to that action ..." (2) An appeal under section 289(1) of the 1990 Act is linked to a "point of law".(3) As Mr Coppel observed in paragraph 9 of his written skeleton argument, in summary the permissible grounds of challenge under either section 288 or 289 of the 1990 Act are analogous to the permissible grounds of challenge to an administrative decision by way of judicial review proceedings: i.e. that the decision was one which no reasonable decision-maker in his position would have made or the methodology by which the decision was reached was materially flawed. The grounds of challenge[8]On behalf of the appellants, Mr Findlay made it clear that he relied upon the three following grounds, which are the matters dealt with in his written skeleton argument:(1) that the Inspector, in concluding that the bunds and hardstanding were not reasonably necessary for agricultural, failed to give adequate reasons dealing with "the main thrust of the appellants' case" in relation to the area of land at the farm currently used for car storage, area A1/A2 on the plan, ("the reasons ground");(2) that the Inspector failed to take proper account of the appellants' internal "fall-back" position in relation to the area delineated on the plan as C1 ("the fall-back point"); and(3) that in relation to the appellants' enforcement appeal, the Inspector had wrongly upheld a "clearly excessive" requirement imposed by the enforcement notice, requiring restoration of the land to a "condition suitable for agricultural use" ("the betterment point"). The first ground of challenge: The reasons challenge[9]Mr Findlay submitted that the appellants' primary contention before the Inspector had been that the hardstanding and bunds on area C1/C2 were required as part of the business of turf production, which was an agricultural use of the site. Mr Findlay pointed out that in his decision letter the Inspector expressed doubt as to whether there was such an agricultural use, but expressly did not decide the point (see paragraph 17 of the decision letter). However, the Inspector held that in any event there was an area of land for use in conjunction with the turf business available at the farm, namely area A1/A2. As to that, it had been the appellants' primary case that area A1/A2 was not available in either the medium- or long-term, because it was entirely required for the fruit and vegetable business currently being carried on lawfully at the farm.[10]Mr Findlay submitted that it was the Inspector's lack of adequate reasoning in respect of that dispute which gives rise to the first main challenge. Mr Findlay referred to and relied upon the well-known decision of the House of Lords in South Bucks District Council v Porter [2004] UKHL 33, in which the many authorities on the adequacy of reasons in planning appeals were considered. In that case Lord Brown, in whose speech the other members of the House concurred, summarised the principles at follows:
"36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
[11]Mr Findlay then referred to paragraphs 6-9 of the Inspector's decision letter, which dealt with this aspect of the appellants' case, as follows:
"6. Various points were put forward on the Appellants' behalf as support and justification for the development. Part of the Appellants' case was that the hardstanding is needed for keeping equipment to be used for the turf production business now in its early stages on some of the land at Downs Farm and that nowhere else was available for this purpose. The hardstanding would also be used as the place where customers would come with vehicles to buy and collect turf. It was claimed that the turf production enterprise would have positive effects in improving the appearance of the green belt, and that part of the hardstanding had lawful use rights for vehicle parking and storage in connection with the fruit and vegetable warehousing and distribution business operated at Downs Farm. The Appellants suggested that at least part of the hardstanding area (area C1) was within the curtilage of the warehouse building. The contentions about use rights and curtilage were made as a "fall-back" position. The Appellants also contended that the turf production enterprise at Downs Farm was 'agriculture' within the meaning of the Planning Act. "7. In my judgment the argument that nowhere else was available for keeping plant and equipment is unconvincing. Some of the land at Downs Farm is currently used for car storage. This use is unauthorised and has been subject to an extant enforcement notice issued in 1990 and upheld in 1991 after an appeal. Apparently the 1991 notice was complied with but car storage resumed later, resulting in further enforcement action when the Council apparently did not realise they had already issued an enforcement notice and defended it on appeal. "8. The Council has weakened its own case by allowing the use to continue for a long time without any prosecution, having decided it was expedient to take the original enforcement action. However, belated action appears now to be underway and I do not consider it right to allow a further incursion of development into green belt countryside when there is an already developed area which could be potentially available if its unauthorised use ceased as required by an extant enforcement notice. "9. The use of the car storage compound for customer parking and loading of turf would have security, safety and convenience implications from the Appellants' viewpoint, in that customers' vehicles would have to be routed past the warehouse buildings and offices. But I do not see these points as insurmountable problems."
Mr Findlay submitted that the Inspector had singularly failed to explain why area A1/A2 could be properly regarded as available for the agricultural business relating to the production of turf when it was the appellants' contention and evidence that that area was already entirely required for the purposes of the appellants' fruit and vegetable business, both in the medium and the long-term. It was Mr Findlay's submission that although the Inspector had dealt with the possible use of area A1/A2, he simply did not deal with the main thrust of the appellants' case with regard to that area (as summarised above). As such, Mr Findlay submitted, the Inspector's reasons were inadequate. In short, Mr Findlay submitted that to deal with this aspect of the matter without saying and explaining why the appellants' arguments were unconvincing is simply not sufficientby way of supporting reasoning.[12]For his part, Mr Coppel submitted that the Inspector had acknowledged in paragraph 6 of his decision letter that the thrust of the appellants' case had been that the hardstanding was essential for the production and sale of turf, both for the storage of agricultural machinery and to allow for customer parking, and that the turf production would constitute an agricultural use of the site. It was Mr Coppel's submission that this was a matter upon which the Inspector needed to make a finding and that is precisely what he went on to do. Mr Coppel submitted, correctly in my view, that the Inspector explicitly addressed the argument that "nowhere else was available for keeping plant and equipment", and came to the conclusion, as he was entitled to, that the appellants' argument to that effect was unconvincing (see paragraph 7 of the decision letter).[13]The Inspector then gave clear reasons for coming to that conclusion, which can be summarised as follows (see paragraphs 7-9 of the decision letter quoted above): 1. Some of the land at the farm is currently used for car storage; 2. This car storage constitutes an unauthorised use of the land and it has been the subject of a history of enforcement action dating back to 1990; 3. "belated action" now appears to be underway and it would not be right to allow further incursion into the green belt where there is already a developed area which could potentially be available if its unauthorised use ceased, as required by an extant enforcement notice; and 4. While the use of this area for the purposes of customer parking and the loading of the turf would have security, safety and convenience implications for the appellants, these are not insurmountable problems. In other words, Mr Coppel submitted, the Inspector had found that there already existed a developed area of the farm that had the capacity to meet any putative need for keeping plant and equipment, loading turf and providing customer parking. It was Mr Coppel's submission that, reading the decision letter as a whole and in a straightforward manner, it is apparent that the Inspector did address the primary thrust of the appellants' case on this important controversial issue and gave perfectly adequate reasons for concluding that he was not persuaded by the appellants' case.[14]Mr Coppel maintained that this is not a case in which a disappointed developer, because of deficiencies of reasoning in a decision letter, can be said to have been left unable to appreciate the basis upon which the Planning Inspector had dismissed his appeal. I agree and, in view of that conclusion, it is not necessary to consider the subsidiary point raised in paragraph 15 of Mr Findlay's written skeleton argument, which he very properly acknowledged added nothing to his principal argument if left by itself. In my view therefore, there is nothing in the first ground of challenge. The second ground of challenge: The fall-back point[15]As part of the Inspector's consideration of the appellants' case for planning permission he considered what became known as the appellants' fall-back position on area C1. It was the appellants' contention that area C1 had been used for the parking of vehicles for some considerable time. Photographs were produced that showed such a use in 1988 and also within the last 10 years. The Inspector did not expressly determine whether such use was a long-standing use or not, or indeed what the lawful use, if any, was at the outset of the period he was considering. However, it does appear that he did consider the use at one stage to be a mixed use for a variety of purposes "associated with Downs Farm as a whole" (see paragraph 12 of his decision letter).[16]The Inspector's reasons for rejecting the fall-back argument are set out in paragraphs 12 and 13 of the decision letter as follows:
"12. The part of the hardstanding known as area C1 may have been used from time to time for parking lorries and for other miscellaneous purposes such as selling Christmas trees, as was apparent from aerial photographs and other evidence including statutory declarations. The available evidence suggests to me that for some years this area has probably been in mixed use for a variety of purposes associated with Downs Farm as a whole, and that the nature of the use has changed from time to time. At one time the area seems to have been a 'general dump', partly covered by spoil from building work. "13. But within the last 10 years (including the 10 years before the enforcement notice was issued) the use of what is now the area of hardstanding appears to have materially changed more than once. One such change would have been from a former mixed use when farm equipment and other agricultural items were sometimes kept there, to use exclusively for purposes connected to the warehousing and distribution business, with no agricultural element in the use. Another change appears to have occurred when cars were placed there -- the Council's enforcement officer evidently saw new cars being delivered to this area on several occasions. I also suspect that at times within the last 10 years the use of this area was probably minimal for the purposes of planning control. Given this varied history, I find that lawful use rights for warehousing and distribution use have not been achieved."
Mr Findlay submitted that the mere cessation of part of a mixed-use or the occurrence of some periods of non-use will not give rise to a material change of use, and that the Inspector's reasoning was therefore flawed in the conclusions expressed in the paragraphs of his decision letter to which I have just referred. Mr Findlay submitted that these errors on the part of the Inspector substantially undermined the conclusion in paragraph 15 of his decision letter that little weight should be given to the appellants' "fall-back" case that existing use rights could help to justify the grant of permission. In my view, there is no substance in this particular point.[17]It is important to consider this issue within its proper context. This part of the Inspector's decision making was expressed in the context of the appellants' withdrawal of any claim to lawful rights on three of the original grounds of the enforcement notice appeal. The Inspector had nonetheless gone on to consider whether the existence of such existing use rights could help to justify the granting of planning permission. The Inspector had then correctly imposed the onus of proof on this aspect of the matter, on the balance of probabilities, on the appellants (see paragraph 15 of the decision letter). I agree with Mr Coppel's submission that in reaching the conclusion that he did, the Inspector was simply saying that the appellants had failed to discharge this burden of proof and that consequently the fall-back position carried little weight as a basis upon which to prop up the case for granting planning permission (see paragraph 15 of the decision letter).[18]Indeed, I agree with Mr Coppel's further submission that the language used by the Inspector in this part of his decision letter demonstrates quite clearly that he considered that the evidence before him was insufficient to reach any firm conclusions with regard to the historic changes of use that had or may have occurred on this part of the site. Expressions such as "the available evidence suggests to me" (see paragraph 12) and "at one time the area seems to have been a 'general dump'" (paragraph 12) and "the use of what is now the area of hardstanding appears to have materially changed" (paragraph 13) all support that conclusion. In my view, in reality, ground 2 is little more than a thinly veiled attack on the weight the Inspector attached or did not attach to the appellants' argument on their so-called fall-back position. As Mr Coppel observed, matters of weight and judgment are quintessentially matters to be left within the domain of the Inspector as the relevant decision-maker. Accordingly, this ground of challenge also fails. The third ground of challenge: The betterment effect[19]The enforcement notice required removal of the bunds and hardstanding and the restoration of area C1/C2 to a condition suitable for agricultural use. Mr Findlay submitted that the complaint on this aspect of the matter is not about the requirement to remove, but to the standard of restoration required. Mr Findlay pointed out that section 173(3) and (4)(a) of the 1990 Act make provision for the steps that may be required to be taken pursuant to an enforcement notice. The material provision is that to be found in subparagraph (4)(a) which makes provision, so far as material, for "restoring the land to its condition before the development took place". Mr Findlay submitted that if the land was not in a condition suitable for agricultural use before the development complained of took place, as the appellants claim was the case, the enforcement notice required restoration work that went further than that permitted by the Act (see above).[20]In my view, the short answer to this ground is that provided by Mr Coppel. It is clear from the Inspector's reasoning at paragraphs 24-25 of his decision letter that what is required is the removal of the bunds and hardstanding. In the view of the Inspector, the removal of the bunds and hardstanding will render the land once more "suitable for agriculture". As Mr Coppel observed, it is clear from a fair reading of his decision letter that the Inspector regarded the removal of the bunds and hardstanding and the restoration of the land to a condition suitable for agricultural use effectively as one and the same thing. What the Inspector actually said was this:
"24. Whilst maintaining that the requirements of the enforcement notice were excessive, the Appellants did not suggest what lesser steps should be substituted. Their main argument appears to be that the requirement to restore the land to a condition suitable for agricultural use is unreasonable because the land has not been in agricultural use for a long time. "25. In the light of the conclusion that planning permission should not be granted for the unauthorised development, the requirement to remove the bunds and hardstanding is not unreasonable or excessive. Part of the land may have been covered by old ash surfacing for some years, but it is not possible to distinguish between the old and the new, and in any case having withdrawn ground (d) of the section 174 appeal the Appellants cannot rely on an argument that any of the hard surfacing has become lawful through the passage of time. The restoration requirement is also not excessive -- there is no requirement to use the land for agriculture, merely to restore it to a condition suitable for agricultural use. That is a reasonable requirement."
I am satisfied that Mr Coppel is right on this aspect of the matter, namely that what is required by the enforcement notice is the removal of the bunds and hardstanding. Once that is done, the land will have been rendered in a condition suitable for agricultural use. Accordingly, as Mr Findlay fairly acknowledged with regard to this particular ground, on that basis this ground must fail. Conclusion[21]For the foregoing reasons, I am satisfied that the appeals under both section 288 and section 289 should be and are hereby dismissed.