Harper, R (on the application of) v Secretary of State for Communities & Local Government & Anor [2010] EWHC 1338 (Admin)

Case No CO/461/2010[2010] EWHC 1338 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Leeds Combined Court
1 Oxford Row
Venue LeedsDate Tuesday, 18 May 2010
West Yorkshire
LS1 3BG
Before
HIS HONOUR JUDGE LANGAN QC(sitting as a Judge of the High Court)
Between
THE QUEEN on the application of STUART HARPERClaimant
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424Official Shorthand Writers to the Court)
The Claimant appeared in person. for in personMs Sarah-Jane Davies appeared for First Defendant.
JudgmentHis Honour Judge Langan:
[1]The claimant is Mr Stuart Harper, an applicant for planning permission. The second defendant is the Council of the East Riding of Yorkshire, which refused his planning application. The first defendant is the Secretary of Statement for Communities and Local Government, who, by an inspector, dismissed Mr Harper's appeal against the second defendant's refusal of planning permission.[2]The claimant has appeared in person. The first defendant has been represented by counsel, Ms Sarah-Jane Davies. The second defendant has not participated in the proceedings. The relevant decision of the inspector was given on 9 December 2009.[3]The story is a somewhat complicated one. I will try to keep it as simple as is consistent with giving a proper explanation of what has happened.. The relevant land is situated to the east of Willow Tree Farm, East Cottingwith, York. The claimant is a haulage contractor who wishes to diversify into agriculture. The building with which I am concerned is, on the claimant's case, intended to provide storage facilities for machinery.[4]Before proceeding with the story, it is necessary to look at some provisions of the Town and Country Planning (General Permitted Development) Order 1995. As is well known, that order permits development of certain kinds to be carried out without a specific grant of planning permission. Under Schedule 2, Part 6, Class A, certain development is permitted in respect of agricultural buildings and operations on units of 5 hectares or more. The land in question here is about hectares in area. Permitted development of Class A is defined as: "The carrying out on agricultural land comprised in an agricultural unit of 5 hectares or more in area of—(a) works for the erection, extension or alteration of a building; or(b) any excavation or engineering operations, which are reasonably necessary for the purposes of agriculture within that unit.”[5]By paragraph A1, 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.”
[6]Paragraph A2 sets out the conditions subject to which development is permitted by Class A. These include compliance by the developer with a procedure to obtain determination by the local planning authority as to whether the prior approval of the authority will be required for the siting, design and external appearance of the building. Shortly stated, if the local planning authority fails within 28 days to respond to an application for a determination as to whether prior approval is required, the applicant may begin the development without such approval.[7]. Coming back to what happened in this case, on 18 December 2002 the claimant applied for prior approval of a general purpose farm building on a site slightly different from that with which I am concerned. The second defendant failed to give the required response within the 28-day period, and by a letter of 4 February 2003 it informed the claimant that by reason of that non-response he could proceed with the development. The claimant subsequently commenced construction of the building with which I am concerned. After completion of the building, officers of the second defendant took the view that it was not designed for agricultural purposes and therefore it did not come within the provisions of the General Permitted Development Order.[8]On 16 May 2006, the second defendant served an enforcement notice requiring demolition of the building. The claimant appealed against that enforcement notice. That appeal was heard by an inspector appointed by the first defendant. The inspector's decision was dated 28 November 2006. It was adverse to the claimant. The inspector considered that the building erected on the site displayed a number of design features which one would not normally associate with an agricultural building. He referred to the fact that the design of the building included several light openings at both ground and first floor level. The number of openings, all of which had decorative surrounds, was disproportionately large for a building of the size. These were features that he would not normally associate with a modern agricultural building. Likewise, the cavity wall construction of the building and the incorporation of damp-proof courses were inconsistent with the building being designed for agricultural purposes. The building did not look like an agricultural building.[9]The inspector found that the demolition of the building was not a disproportionate response to the breach of planning control. Accordingly, the appeal failed and the claimant was liable to demolish the building. He did not do so. He was prosecuted by the second defendant on 1 April 2008 and was fined £5,000 at the Magistrates Court and ordered to make a substantial contribution to the costs of the second defendant.[10]The claimant had not, I think, by the time of the hearing before the inspector (to which I have referred) lodged a planning application. He did lodge a planning application later, on 28 April 2009. The proposed development was described as "to retain and alter existing farm building by way of blocking up existing doors and relocating one more large door to the eastern edge of the building.” That planning application was refused by the second defendant on 1 July 2009. The claimant then appealed to the first defendant. The appeal was heard by Ms Zoe Hill, an inspector appointed by the first defendant. She made a site visit on 24 November 2009 and, as I have already mentioned, her decision was dated 9 December 2009.[11]It is apparent from a reading of the decision that Ms Hill considered the issues in the appeal under three broad headings.[12]First, Ms Hill dealt with the character and appearance of the building. Her conclusion, after taking relevant planning policies into account, was that the proposed development would be harmful to the character and appearance of the surrounding countryside. She looked in detail at the building, at the proposed alterations and at the appearance which the building would have after those alterations. She concluded that the appearance would be far removed from that of a modern agricultural building which she had seen in the same field. She referred also to the fact that the building was significantly elevated above natural ground level, with a high threshold and internal floor space. It appeared a prominent and incongruous structure which detracted from the surroundings, relatively flat, agricultural landscape.[13]Second, the inspector considered the agricultural use proposed to be made of the building. On the evidence before her, she was unable to find any substantiation of the assertion that agricultural activities were being undertaken on the holding. Furthermore, she had reservations about the practical use of the building for storage of larger agricultural machinery.[14]. Third, the inspector dealt with other matters. In particular, she dealt with the fact that, under the extant prior approval, the claimant was in a position in which he could construct an agricultural building some two metres from the existing building. Such a new agricultural building would occupy about half of the floor space of the building which the previous inspector had ordered to be demolished and with which Ms Hill was herself concerned. She said with regard to that, in paragraph 7 of the decision:
"Whether or not the appellant intends to construct that building in a similar manner to the appeal building, it would be required to be designed for agricultural purposes. In any event, I do not consider that this justifies retention of the appeal building, which appears as an intrusive development in the open countryside."
In paragraph 13, Ms Hill dealt with the claimant's point that it would be costly to remove the building, which was of a relatively high specification, but she said that those costs resulted from his decisions when constructing. She also dealt with his view that removal would be seen as wasteful of resources, but she said that it was not for her in the context of an appeal to consider steps needed to remedy an unauthorised development.[15]The claimant has made both written and oral submissions this morning. For reasons which I shall shortly set out, I have come to the conclusion that nothing which he has said would justify this court in overturning the decision of the inspector.[16]So far as the character and appearance of the building and the lack of sufficient evidence as to proposed agricultural use, it is in my judgment impossible to fault the inspector's analysis of the facts or her application on proper principles to those facts. The claimant complains that in one paragraph of the decision (paragraph 5) the inspector misunderstood some detail of his proposals for alterations to the building. That submission is, however, dependent on there having been before the inspector a particular letter (dated 21 November 2008 and copied at page 26 of the hearing bundle), and it is by no means established that that letter was in fact shown to her.[17]It is on the third matter, the question of waste of resources, that the claimant has concentrated his fire this morning. The nature of the submissions will be apparent from what I have already said. He maintains that he is being put in a position in which he will be forced to pull down the existing building and thereafter re-erect it almost in the same position, using the same materials or most of the same materials. That submission, in my judgment, sidesteps, not by design I am sure, fundamental principles which are apparent both from the decision of the inspector on the enforcement notice appeal and from the decision of Ms Zoë Hill on the current appeal.[18]What the claimant is entitled to do under the prior approval which he obtained by default is to erect a building which, first of all, is reasonably necessary for the purposes of agriculture (see the definition of permitted development under Schedule 2, Part 6, Class A), and, secondly, to erect a building which is designed for agricultural purposes (see the description of development which is not permitted in A1(c)). There must be considerable doubt, given the terms of the decisions to which I have referred, whether the kind of demolition and re-erection of the kind which I have mentioned would satisfy those requirement. It seems to me likely that they would not. In any event, I do not think that there was any error in principle on the part of the inspector when she said that it was not for her in the context of the planning appeal to consider the steps needed to remedy an unauthorised development.[19]For those reasons, I have come to the conclusion that there is no way in which this decision can be successfully challenged and it follows that the claim must be dismissed.

Order

Claim dismissed