Binabik Holding Ltd v Secretary of State for Communities and Local Government [2009] EWHC 3350 (Admin)

[2009] EWHC 3350 (Admin)Case No CO/4986/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 3 December 2009
Strand
London WC2A 2LL
B e f o r e:
GEORGE BARTLETT QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Between
BINABIK HOLDING LTDClaimantv
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
MR J FINDLAY QC and MR M BEDFORD (instructed by MORGAN COLE) appeared for ClaimantMISS K OLLEY (instructed by THE TREASURY SOLICITOR) appeared for Defendant
J U D G M E N T
[1]THE DEPUTY JUDGE: In a decision of 22 April 2009, the inspector appointed by the first defendant dismissed two appeals by the claimant. The first was an appeal against an enforcement notice that required the cessation of the construction of a large two or three storey building at Honeywood Farm, Ascot Road, Nuptown, Warfield, Bracknell, Berkshire, and the demolition of the building. The appeal had been made on ground (a), that planning permission ought to be granted for the development, and ground (g), that the time limit for compliance with the requirements of the notice was inadequate. The second appeal was against the refusal of planning permission for development described in the application as part repair, part replacement, part reconstruction, and extension to an existing barn complex to create new a livestock barn.[2]The inspector held the inquiry into the two appeals on 25 and 26 March 2009. The claimant now seeks leave to appeal under section 289 of the Town and Country Planning Act 1990, against the dismissal of the enforcement notice appeal, and applies under section 288 to quash the dismissal of the appeal against the refusal of planning permission. The grounds of challenge in each case are the same.[3]The appellant is a Geneva registered company, owned by Mr Costas Koutalides who also owns Honeywood Farm. The land holding extends to about 19.7 hectares. It is located near the hamlet of Nuptown and the village of Warfield, in an area of open countryside that forms part of the designated Metropolitan Green Belt. The sales particulars of the holding, when the claimant acquired it, described it as containing a four-bedroom farmhouse with an attached single storey, two-bedroom staff annex and an assortment of traditional and modern farm buildings comprising a granary, cart shed, hay store, a traditional barn, an open fronted barn with a stable at one end, calf pens, and a modern clear span barn, subdivided internally to provide livestock pens. At the time of the inquiry, no agricultural activity was taking place on the land other than the growing of grass for cutting.[4]Unauthorised building and engineering operations at Honeywood Farm first attracted the attention of the council, Bracknell Forest Borough Council, the second defendants, in 2007. The works culminated in the re-grading of much the land around the farmhouse and the creation of two ornamental lakes. Work then began on the demolition of some farm buildings and the erection of a new building for which planning permission was granted retrospectively in November 2007. By then, work had commenced on the demolition of other agricultural buildings and the erection of the building that was the subject of the appeals. The inspector described the building as follows:
"46) The building is on a grand scale with a collection of eclectic elements. As now proposed, the amended plans of the completed building show an expansive structure, huge in comparison to the traditional agricultural buildings that it replaced. It has lofty walls topped by pediments that screen its roof, and pierced by tall vertical slits of glass blocks which light the interior. Along one side there is a colonnaded walkway, constructed from rounded poles, offering views across the landscaped grounds and the new lakes. On one corner of the building, there is a prominent tower with circular window openings. On another, there is a large semi-circular (or semi-octagonal) projection, built from what appears to be plywood and painted grey."
[5]The claimant's case was that the building was capable of being modified and completed so that it would be suitable for agricultural use, specifically calf rearing. It was not part of its case that, as partially completed, it was permitted development as an agricultural building. No evidence was called at the inquiry as to the claimant's purpose in constructing the building. Mr Koutalides was not called to give evidence.[6]The approach of the inspector as to whether planning permission should be granted was founded on the fundamental policy governing development in the Green Belt contained in paragraph 3.2 of PPG2, which he quoted at paragraph 24:
"Planning permission will not be given, except in very special circumstances, for inappropriate development. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations."
[7]The inspector noted that paragraph 3.4 states that:
"The construction of new buildings inside the Green Belt is inappropriate unless it is for certain specified purposes, one of which is agriculture."
And he devoted a number of paragraphs in his decision to a consideration, by reference to certain decisions of the courts, of the approach to deciding whether a building was constructed for the purposes of agriculture. He then identified the main issues as follows:
"1) Whether the development constitutes inappropriate development within the Green Belt; 2) If so, whether it significantly harms (i) the aims of the Green Belt; (ii) the purposes of including land in the Green Belt; and (iii) the character and appearance of the area; and 3) If so, whether there are other considerations which clearly outweigh the harm to the Green Belt, and any other harm, thereby justifying the development on the basis of very special circumstances."
[8]Addressing the first issue, the inspector summarised the contentions of the claimant and the council and then stated his conclusion. He said:
"41) I share the council's view that the building is inappropriate development in the Green Belt, but not for reasons of questionable financial viability. From the judgment in Mckay, it is clear that assumptions about financial viability, economic sustainability or marginal profitability are not relevant considerations in deciding whether a building is genuinely intended for agricultural purposes. I consider it to be inappropriate development because, from its external appearance and layout at the time that it was erected, it was not genuinely intended for agricultural purposes. 42) To begin with, there are no plans that show the design of the building at the start of its construction. I was told that the design seemed to evolve as work progressed. None of the appellant's witnesses were able to explain the appellant's requirements when the building was commissioned. No evidence was presented to clarify the instructions that the appellant's architect received, even though a partner of the practice attended each day of the inquiry and could have been called."
[9]The inspector then considered the physical appearance of the building, including the description in paragraph 46 which I have quoted already. In relation to its layout, he said:
"48) Finally, its layout. As a general principle, buildings that are dedicated to agricultural operations or activities tend to have distinctive internal arrangements. One of these is a level floor. The floor of this building has differing levels, and is stepped in parts. It has other features that are plainly unsuitable for most agricultural operations or activities, such as a lack of adequate ventilation, hence the need for significant alterations to make it fit for such a purpose."
[10]He concluded, therefore, as he put it, "as a matter of fact and degree", that the appeal development was not constructed for the purposes of agriculture, and was therefore inappropriate development in the Green Belt.[11]Turning to issue 2, the assessment of harm, the inspector said that, according to paragraph 3.1 of PPG2, inappropriate development was, by definition, harmful and should not be approved except in very special circumstances. He identified three other respects in which he considered that the building caused harm: harm to the openness of the green belt through its bulk, form, height and siting; harm to the purposes of the Green Belt through encroaching on the countryside; and harm to the rural character and appearance of the area. In respect of the last, he expressed agreement with the views of the parish council and local residents who had given evidence, preferring these to certain concessions made by the council. He concluded:
"The cumulative effect of these buildings has been to significantly erode the character and appearance of the local landscape, giving it an altogether more urban feel. Because of its prominent location, highly visible from a number of public view points, the appeal building is particularly obtrusive. Permitting it to remain would harm the Green Belt and the open countryside, and would undermine the policies that seek to protect them. Even if I had come to the view that the appeal development was not inappropriate in the Green Belt, the damaging consequences arising from it would have led me to conclude that significant harm had been caused to the visual amenities of the Green Belt."
[12]Then the inspector dealt with issue 3, whether there were other considerations that clearly outweighed the harm, and he did so in this way:
"59) No material considerations were proffered in support of the appeal. The thrust of the appellant's case was that the appeal building was appropriate development because it could be adapted to serve an agricultural use. However, many buildings can be adapted for agricultural use. It is not an argument that carries much weight in this appeal. 60) Although the council and some local residents questioned the sincerity of the appellant's assurances that he wishes to start at livestock rearing business, I must assume they are made in good faith. I am mindful of the possible benefits to the local rural economy that might ensue, should this enterprise commence and prove successful. If the appellant is genuine in this intention, the 'consented barn' offers readily available accommodation. I accept that the building might require some modifications to fully meet the needs of calf rearing, and that alternative space would be needed for the appellant's vehicles and farm implements, but I am satisfied that dismissal of this appeal would not necessarily thwart the pursuit of that enterprise."
His final conclusion was at paragraph 61:
"I have taken account of all the material considerations that were raised, including the discussed conditions, but these would not overcome the harm that I have identified. On balance I have come to the view that the combined weight of those considerations does not clearly outweigh the totality of the harm arising from the appeal development."
And he, accordingly, dismissed the section 174 appeal on ground (a), and he dismissed the section 78 appeal.[13]The challenge to this decision is made on four grounds. The fundamental point advanced by Mr James Findlay QC and Mr Michael Bedford, who appear for the claimant, is that the inspector erred in approaching the first issue by reference to the wrong time frame and the wrong development. It is said that he wrongly determined the matter by reference to the question as to whether, when the works that had resulted in the incomplete building were undertaken, the building was at that stage intended for agricultural purposes. The proper question was whether the development for which planning permission was sought would, when completed, be a building for the purposes of agriculture. Permission for such works would be needed because Mr Koutalides is not a farmer and does not have a calf rearing enterprise, and so the works would not be permitted development under the General Permitted Development Order.[14]Mr Findlay draws attention to the description of the development in the council's decision notice. That described the development as:
"Erection of agricultural building following part demolition and part refurbishment of existing barns (part retrospective)."
The inspector said that this description was satisfactory for the section 78 appeal, although it would be wrong to use it for the section 174 appeal development. So, it is said, since the application was for the erection of an agricultural building, the inspector was wrong to treat it as inappropriate development. What was proposed was development said by PPG2 not to be inappropriate.[15]As far as the enforcement notice appeal was concerned, under section 177(1) the inspector had power to grant planning permission in respect of the matters stated in the enforcement notice that constituted a breach of planning control, whether in relation to the whole or any part of those matters, or in relation to the whole or any part of the land to which the notice relates. Subsection 3 as amended provides that the planning permission that may be granted under subsection (1) is any planning permission that might be granted under Part III of the 1990 Act. Mr Findlay submitted that that would extend to works of alteration and completion of the sort proposed by the claimant. He drew attention to the previous provisions of subsection (3), which, as a re-enactment of section 16(6) of the 1968 Act, were the provisions that were considered by the Divisional Court in Richmond upon Thames Borough Council v the Secretary of State for the Environment [1972] EGD 948, and by Robert Carnwath QC in his report of February 1989 on enforcing planning control. Subsection (3), in its earlier form, provided that the planning permission might include permission to retain or complete any buildings or works on land, or to do so without complying with some condition attached to a previous planning permission. Mr Findlay submitted that the power in subsection (3) was wider, although he did not seek to say what the limits on the power might be.[16]It is, for present purposes, unnecessary for me to come to a view on the ambit of the power contained in subsections (1) and (3) for two reasons: firstly, as it seems to me, the inspector, on an appeal such as this, must at least primarily address himself to the question whether permission should be granted for the development that constitutes the breach of planning control; and secondly, whatever the position in relation to the enforcement notice appeal, Mr Findlay's submission in relation to the planning appeal remains.[17]On the enforcement notice appeal, there can, it seems to me, be no doubt that the approach the inspector adopted was correct. Under ground (a), permission was deemed to be sought for the retention of the existing buildings and that was the primary, if not the sole, question. So the inspector was entirely right to ask and answer the question, "Is the building an agricultural building?". His conclusion that it was not was manifestly justified, and indeed the claimant had not sought to contend that it had been constructed for agricultural purposes.[18]As far as the appeal under section 78 against the refusal of planning permission is concerned, the position is not quite so straightforward, since the application is both for the retention of the building and its alteration and completion so as to form an agricultural building. I reject Mr Findlay's contention that the application fell to be considered as, in effect, an application for a new building. On the facts it was not. It was an application for the retention of the partly constructed building under section 73A of the Act, as well as planning permission for its alteration and completion. The approach of the inspector in these circumstances was correct in my judgment.[19]He considered the question whether the building, as so far constructed, was inappropriate development in the Green Belt. Since it was not constructed for the purposes of agriculture, it was inappropriate development. I do not think that because, when the appellant was halted in his tracks in constructing this grand non-agricultural building, he had a change of heart and said that he now wished to use it for calf rearing, the inspector was compelled to address the matter differently, treating the building not as inappropriate development in the Green Belt but as appropriate development.[20]The inspector clearly had regard to the claimant's proposal for the alteration and completion of what was there. Appended to his decision letter was a list, agreed between the parties, that set out the significant differences between constructing the building and the scheme advanced under the section 78 appeal. These were: "1) The enforcement building incomplete, section 78 appeal scheme a completed proposal; 2) Surface materials; 3) Completion of roof to Eastern part of the building; 4) Roof lights in Western barn to be removed; 5) Semi-circular projection with four openings in south-western corner re-modelled - squared off with one central opening; 6) North-eastern corner re-modelled through roof high-level openings an evident feature; 7) Rationalisation of internal space to form segregated livestock areas, isolation area, staff room and office."(?)[21]At paragraph 47, the inspector said this about what was proposed:
"According to the plans, much of the unauthorised building is to be clad in horizontal timber boarding, mitigating its stark visual impact. A similar treatment is proposed for the approved building, but has yet to be carried out. Even so, taken as a whole the structure has the appearance of a general purpose building that one might except to see on an industrial estate or retail park, rather than on a farm holding."
At paragraph 51, considering the assessment of harm, he said:
"Because of its bulk, form, height and siting, the unauthorised development has a significantly adverse impact on the openness of the Green Belt."
The bulk, form, height and siting were not, in substance, affected by the proposed alterations, although Mr Findlay said that a tower would be taken down.[22]At paragraph 55, the inspector recorded the view of the planning officer:
"If the appeal building is not found to be 'inappropriate development', then its scale and form would be acceptable because they would much the 'consented barn'."
And he continued, at paragraph 56:
"However, there was no support for that view from the Parish council or the many local residents who gave evidence at the inquiry or had sent in written comments."
At paragraph 57, he expressed his agreement with the Parish Council.[23]He then expressed the conclusion at paragraph 58 which I have quoted already, concluding:
"Even if I had come to the view that the appeal development was not inappropriate in the Green Belt, the damaging consequences arising from it would have led me to conclude that significant harm had been caused to the visual amenities of the Green Belt."
[24]Finally, under 'other considerations', he said, in paragraph 59 which I have quoted already, that:
"No material considerations were proffered in support of the appeal. The thrust of the appellant's case was that the appeal building was appropriate development because it could be adapted to serve an agricultural use."
[25]Mr Findlay took issue with the word "adapted", but that seems to me clearly to fit with what it was that the claimant was proposing. The inspector's conclusion, in paragraph 69, that many buildings can be adapted for agricultural use and that it was not an argument that carries much weight in this appeal, is one that he could reasonably have come to. Indeed, his approach, looking at the building as it was and taking into account the prospect of adaptation, was one that seems to me to be entirely appropriate in terms of the policy of PPG2, and it properly reflected the realities of the case before him. He made no error in that respect.[26]The second ground of challenge was that the inspector was wrong to have regard to case law as to what constitutes an agricultural building in determining an application to enable a building to be used for agricultural purposes. This, however, begs the question in the first ground of challenge. It was, as I have said, appropriate for the inspector to approach the question of retention of the building by reference to a conclusion that the building, as existing, was not an agricultural building. He reached that conclusion with the assistance of four cases to which he referred and it is not suggested that his conclusion in that respect was wrong.[27]There is another contention (the third ground of challenge) - that the inspector was wrong to base his conclusion on cases that had not been remembered referred to. But since his conclusion in this respect is not said to be wrong, there has manifestly been no prejudice.[28]Fourthly, and finally, it is said that the inspector wrongly considered whether there would be harm to the visual amenities of the Green Belt by failing to assess the impact of the building when completed. I do not think there was such a failure, as I have said, and I have identified the relevant paragraphs in the inspector's decision letter.[29]Accordingly, I can see no justification for granting permission to appeal against the enforcement notice, which is refused, and the application to quash this decision on the decision on the planning appeal is also refused.[30]MISS OLLEY: My Lord, I am grateful. I would like to make an application for the Secretary of State's costs. Does your Lordship have a copy of the statement of costs?[31]THE DEPUTY JUDGE: No.[32]MISS OLLEY: I am sorry about that, in that case may I hand up a copy. I apply for the costs in the full sum of £7,978, I hope your Lordship will feel able to award costs in that amount. I note it was about 20 per cent of the claimant's costs, but I am not sure whether they are agreed by the other side.[33]MR FINDLAY: There is no objection to that.[34]THE DEPUTY JUDGE: Very well, I order costs in the sum of £7,978.[35]MISS OLLEY: I am grateful, my Lord.[36]MR FINDLAY: My Lord, I do have an application for permission to appeal. My Lord, given the terms of your Lordship's judgment I will state it briefly, but, my Lord, in our submission, your Lordship has overlooked what the inspector found to be the satisfactory description of development for which was applied as being the erection of an agricultural building. That was not our case that that per se made it appropriate development but that described the definition of development for which permission was sought.[37]My Lord, in terms of the Ground 3 appeal, it is correct that in terms of the challenge to the decision in terms of the building as built, whether the structure was appropriate development, we did not challenge their application to facts. We did challenge their application of those cases to the facts as we suggest they should have been dealt with. So, my Lord, I do apply for permission to appeal under the section 288 appeal and, my Lord, if your Lordship were to grant permission under that I would also apply for a stay in respect of the enforcement notice, but I can deal with that depending on your Lordship's decision on the application for permission.[38]THE DEPUTY JUDGE: No, I am not going to grant permission to appeal. It is said that I overlooked the description treated by the inspector as satisfactory, but the description, "erection of agricultural building following part demolition and part refurbishment of existing barns (part retrospective)", clearly brought into consideration the need for retrospective planning permission. On that basis it was appropriate for the inspector to decide the matter as he did. I see no basis for a successful appeal in relation to Ground 3.[39]MR FINDLAY: My Lord, the final application I have is, my Lord, an application for permission to appeal, if it is going to be made, has to be made to the Court of Appeal now within 21 days. In view of the fact your Lordship has given an extempore judgment, for which we are grateful, would your Lordship extend time to 21 days from receipt of the transcript?[40]THE DEPUTY JUDGE: Yes.[41]MR FINDLAY: Much obliged.[42]My Lord, might I raise one minor matter. Your Lordship incorporated into your Lordship's judgment, paragraph 5 of the decision letter, which finishes by indicating that Mr Costas Koutalides owns the company in Honeywood Farm. I think Mr Koutalides would be grateful if your Lordship would indicate just publicly that what your Lordship was doing was not making a current finding of fact but simply recording what the inspector had recorded in his decision.[43]THE DEPUTY JUDGE: I was doing precisely that.[44]MR FINDLAY: I am much obliged, my Lord.[45]THE DEPUTY JUDGE: Thank you all very much.

Cited in 1 later judgment